Second, is the act one within the narrow and special authority possessed by an officer or employe.366 It must be remembered in this connection that where authority is special, the right of a public officer or employe to act must be affirmatively shown, the usual presumption of law that an officer or agent is acting within the usual scope of his power and authority applying only to a slight extent.36 Another general rule or principle of law also applies, that since a public corporation is one of limited powers expressly given and its officers and agents also having but special County, 91 Iowa, 359, 59 N. W. 39; Center Tp. v. Gilmore, 31 Kan. 675; Hendricks v. Chautauqua County Com'ra, 35 Kan. 483, 11 Pac. 450; Wilson v. City of Shreveport, 29 La. Ann. 673; Babbitt v. Selectmen of Savoy, 57 Mass. (3 Cush.) 530; Farnsworth v. Inhabitants of Melrose, 122 Mass. 268; State v. Treasurer, 41 Mo. 590;; Bedwell v. Custer County, 51 Neb. 387; Perkins v. Grafton County, 67 N. H. 282, 29 Atl. 541; McIntire v. Pembroke, 53 N. H. 462; Kernitz v. Long Island City, 50 Hun, 428, 3 N. Y. Supp. 144; Parker v. Saratoga County Sup'rs, 106 N. Y. 392, 13 N. E. 308; Clark v. Saratoga County Sup'rs, 107 N. Y. 553, 14 N. E. 428; De Rackin v. Lincoln County, 19 Wash. 360, 53 Pac. 351. Contract for publication of delinquent taxes. 866 Bernards Tp. v. Morrison, 133 U. S. 523; Indiana v. Glover, 155 U. S. 513; El Dorado County v. Elstner, 18 Cal. 144; Town of Sharon v. Town of Salisbury, 29 Conn. 113; Goodwin v. Town of East Hartford, 70 Conn. 18; Rayburn v. Davis, 2 Ill. App. 548; Town of Harwood v. Hamilton, 13 Ill. App. 358; Coleman v. City of Elgin, 45 Ill. App. 64; Thompson v. Jo Daviess County, 98 Ill. App. 293; Condran v. City of New Orleans, 43 La. Ann. 1202, 9 So. 31; Dennett v. Nevers, 7 Me. (7 Greenl.) 399; Emerson v. In habitants of Washington County, 9 Me. (9 Greenl.) 89; State v. Sanderson, 26 Minn. 333; McKenzie v. Polk County Com'rs, 61 Minn. 145, 63 N. W. 613; Luse v. Rankin, 57 Neb. 632, 78 N. W. 258; Feusier v. Virginia City, 3 Nev. 58. An attorney authorized to bring suit on behalf of the city may bind it for sheriff's fees incurred in service of process in the case. Town of Andover v. Grafton, 7 N. H. 298; Town of Holderness V. Baker, 44 N. H. 414; Bartholomew v. Lehigh County, 148 Pa. 82, 23 Atl. 1122; Com. v. Colley Tp. Sup'rs, 29 Pa. 121; Jewell Nursery Co. v. State, 4 S. D. 213, 56 N. W. 113; George D. Barnard & Co. v. Wahkiakum County, 7 Wash. 210, 34 Pac. 920; Snohomish County Abstract Co. v. Anderson, 9 Wash. 349, 37 Pac. 471. 367 City of Elgin v. Goff, 38 III. App. 362. In a commission of a tort it will be presumed that city officials are acting within the scope of their authority. Gilpatrick v. City of Biddeford, 51 Me. 182. Where officials are personally interested in a transaction they cannot even when acting within the scope of their authority bind the city. See City of San Diego v. San Diego & L. A. R. Co., 44 Cal. 106; Davenport v. Town of Johnson, 49 Vt. 403, and Judevine v. Town of Hardwick, 49 Vt. 180. and limited powers, all grants of power either to the corporation or to its officers and employes are to be construed strictly and against the existence of the power,368 and that they are considered in cases of doubt mandatory in their character.369 Where clearly mandatory, the question of doubt, of course, cannot arise, the rule just given applying to the existence of the power and the manner and the time of its exercise. § 664. Irregular exercise of power. In determining the liability of a public corporation upon a contract whether implied or express, the distinction must be remembered between what the courts hold a total want of power and a mere irregular exercise of a given power.370 An act which is 368 See sections 113, 114, 246 and 247, ante. 369 Henry County Com'rs v. Gillies, 138 Ind. 667, 38 N. E. 40. "The third proposition advanced by counsel is, that the statute is directory and not mandatory, and that the intent and policy of the act have not been violated. If the position here taken were tenable it would amount to a total abrogation of the law in question. That statute requires that statements should be filed with the board by the several county officers, showing the supplies needed. The court finds that no such statements were filed, and that none were requested by the board. * * * The statutes of the state are not to be wiped out in that manner. Boards of county commissioners are themselves but the creatures of the legislature, and they must pursue and exercise their powers in strict compliance with the letter and spirit of the statute. It is theirs to obey, not to disregard, the commands of the lawmaking power of the state." 370 Hitchcock v. City of Galveston, 96 U. S. 341. "There may be a difference between the case of an engagement made by a corporation to do an act expressly prohibited by its charter, or some other law, and a case of where legislative power to do the act has not been granted. Such a distinction is asserted in some decisions. But the present is not a case in which the issue of the bonds was prohibited by any statute. At most, the issue was unauthorized. At most, there was a defect of power. The promise to give bonds to the plaintiffs in payment of what they undertook to do was, therefore, at farthest, only ultra vires; and, in such a case, though specific performance of an engagement to do a thing transgressive of its corporate power may not be enforced, the corporation can be held liable on its contract. Having received benefits at the expense of the other contracting party, it cannot object that it was not empowered to perform what it promised in return, in the mode in which it promised to perform." Treadway v. Schnauber, 1 Dak. 236; Maher v. City of Chicago, 38 Ill. 266; State Board of Agriculture v. Citizens' St. R. Co., 47 Ind. 407; City of St. Louis v. Davidson, 102 clearly considered as ultra vires, under the rule of strict construction, cannot be made binding or operative or subsequently ratified.371 Where, however, a power or right exists but which must be exercised in a manner specified to be legally binding, if it is exercised in an informal way, and without a compliance with statutory requirements either as to the manner or the time of its exercise, it may be made binding and operative by the courts or subsequently ratified 372 in order to render substantial justice as between the parties to the transaction, and this doctrine is especially applicable where there has been an acceptance and use of its benefits or for many years an acquiescence in its results. This Mo. 149; Allegheny City v. McClurkan, 14 Pa. 81. 371 Holland v. City of San Francisco, 7 Cal. 361. But an irregular exercise of power may be ratified. See section 246 et seq. 372 Killian v. State, 15 Ind. App. 261, 43 N. E. 955; Chicago Lumber & Coal Co. v. Sugar Leaf Tp., 64 Kan. 163, 67 Pac. 630; Brown v. Inhabitants of Melrose, 155 Mass. 587, 30 N. E. 87. Facts creating a ratification. Inhabitants of Arlington v. Peirce, 122 Mass. 270; Murphy v. Moies, 18 R. I. 100, 25 Atl. 977; Brown v. State, 14 S. D. 219, 84 N. W. 801. See Mechem, Pub. Off. §§ 526 et seq. 373 Hitchcock v. City of Galveston, 96 U. S. 341. "In the view which we shall take of the present case, it is, perhaps, not necessary to inquire whether those cases justify the court's conclusion; for, if it were conceded that the city had no lawful authority to issue the bonds, described in the ordinance and mentioned in the contract, it does not follow that the contract was wholly illegal and void, or that the plaintiffs have no rights under it. They are not suing upon the bonds, and it is not necessary to their success that they should assert the validity of those instruments. It is enough for them that the city council have power to enter into a contract for the improvement of the sidewalks; that such a contract was made with them; that under it they have proceeded to furnish materials and do work, as well as to assume liabilities; that the city has received and now enjoys the benefit of what they have done and furnished; that for these things the city promised to pay, and that after having received the benefit of the contract the city has broken it. It matters not that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the parties is in force, so far as it is lawful. "There may be a difference be tween the case of an engagement made by a corporation to do an act expressly prohibited by its charter, or some other law, and a case of where legislative power to do the act has not been granted. Such a distinction is asserted in some decisions. But the present is not a case in which the issue of the bonds was prohibited by any statute. At principle as well as the further one that an act without the powers of a public corporation cannot be ratified have been fully considered in Chapter V, subdivisions one and six. $665. Contract liabilities. Some illustrations of contract liability arising from official action in addition to those before given are noted in the cases cited.374 most, the issue was unauthorized. At most, there was a defect of power. The promise to give bonds to the plaintiffs in payment of what they undertook to do was, therefore, at farthest, only ultra vires; and, in such a case, though specific performance of an engagement to do a thing transgressive of its corporate power may not be enforced, the corporation can be held liable on its contract. Having received benefits at the expense of the other contracting party, it cannot object that it was not empowered to perform what it promised in return, in the mode in which it promised to perform. This was directly ruled in State Board of Agriculture v. Citizens' St. R. Co., 47 Ind. 407. There it was held that 'Although there may be a defect of power in a corporation, to make a contract, yet if a contract made by it is not in violation of its charter, or of any statute prohibiting it, and the corporation has by its promise induced a party relying on the promise and in execution of the contract to expend money and perform his part thereof, the corporation is liable on the contract.' See, also, substantially to the same effect, Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370; Argenti v. City of San Francisco, 16 Cal. 256; Maher v. City of Chicago, 38 Ill. 266; Oneida Bank v. Ontario Bank, 21 N. Y. 490, and Allegheny City v. McClurkan, 14 Pa. 81." Brown v. City of Webster City, 115 Iowa, 511, 88 N. W. 1070; Backman v. City of Charleston, 42 N. H. 125; Parker v. Saratoga County Sup'rs, 106 N. Y. 392, 13 N. E. 308; Messenger v. City of Buffalo, 21 N. Y. 196; Dewey v. Niagara County Sup'rs, 62 N. Y. 294; Kramrath v. City of Albany, 127 N. Y. 575, 28 N. E. 400. But see Condran v. City of New Orleans, 43 La. Ann. 1202, 9 So. 31, and Agawam Nat. Bank v. Inhabitants of South Hadley, 128 Mass. 503. 374 Malone v. Escambia County, 116 Ala. 214, 22 So. 503. Liability of county for medical attendance to sick and insolvent persons. Rice v. Trustees of Town of Haywards, 107 Cal. 398; McGuire v. City of Rapid City, 6 Dak. 346, 43 N. W. 706, 5 L. R. A. 752; City of Alton v. Mulledy, 21 Ill. 76; First Nat. Bank v. Peck, 43 Kan. 643, 23 Pac. 1077; State V. Shawnee County Com'rs, 57 Kan. 267, 45 Pac. 616. Contracts involving use of patented articles. City of Louisville V. Wible, 84 Ky. 290, 1 S. W. 605. Contracts for the exclusive right to remove carcasses of dead animals from within limits of a municipality for a period of five years is valid and the city cannot capriciously defer the commencement of the § 666. Corporate liability for admissions of officers or employes. The admissions of public officers are only binding when made in the performance of an official act within the actual scope of their authority. As public officers and employes possess limited and 375 Pub. Co. v. City of Lincoln, 29 Neb. 149, 45 N. W. 245; Wells v. Goffs town, 16 N. H. 53; Great Falls Bank v. Farmington, 41 N. H. 32. Selectmen may contract for a supply of liquor under act of July 14, 1855. Rollins v. Town of Chester, 46 N. H. 411; Van Valkenburg v. City of New York, 43 Barb. (N. Y.) 109; Hall v. Lauderdale, 46 N. Y. 70; Burnett v. Markley, 23 Or. 436, 31 Pac. 1050; Evans v. Hughes County, 3 S. D. 580; Van Antwerp v. Dell Rapids Tp., 5 S. D. 447; La France Fire Engine Co. v. Town of Mt. Vernon, 11 Wash. 203; Albany County Com'rs v. Chaplin, 5 Wyo. 74, 37 Pac. 370. Contract of publication of notice of tax sale. 375 Gibson v. United States, 75 U. S. (8 Wall.) 274; Bennett v. United States, 6 Ct. Cl. 103; McCollum v. United States, 17 Ct. Cl. 92; Whiteside v. United States, 93 U. S. 247. "Different rules prevail in respect to the acts and declarations of public agents from those which ordinarily govern in the case of mere private agents. Principals, in the latter category, are in many cases bound by the acts and declarations of their agents, even where the act or declaration was done or made without any authority, if it appear that the act was done or declaration was made by the agent in the course of his regular employment; but the government or publie authority is not bound in such a case, unless it manifestly appears that the agent was acting within the scope of his authority, or that he had been held out as having authority to do the act, or was employed in his capacity as a public agent to do the act or make the declaration for the government. Story, Agency (6th Ed.) § 307a; Lee v. Monroe, 7 Cranch (U. S.) 366. "Although a private agent, acting in violation of specific instructions, yet within the scope of his general authority, may bind his principal, the rule as to the effect of the like act of a public agent is otherwise, for the reason that it is better that an individual should occasionally suffer from the mistakes of public officers or agents, than to adopt a rule which, through improper combinations or collusion, might be turned to the detriment and injury of the public." See, also, as holding the same, City of Baltimore v. Eschbash, 18 Md. 282; El Dorado County v. Reed, 11 Colo. 130; Scofield Rolling Mill Co. v. State, 54 Ga. 635; Miller v. Smith, 7 Idaho, 204, 61 Pac. 824; La Salle County v. Simmons, 10 Ill. 513; George F. Blake Mfg. Co. v. Sanitary Dist. of Chicago, 77 Ill. App. 287; Dayton Highway Com'rs v. Rutland High |