hence a writ of prohibition will not lie to restrain its collection, nor can it be reviewed on certiorari.'

§ 369. In Virginia it is decided that in a proceeding before the mayor or a justice to impose a penalty on a party for obstructing a street, the mayor or justice cannot, if the defendant bona fide sets up title to the land claimed as a street, inquire into the validity of the claim, the court holding that by the principles of the common law (which are not changed by the statutes), a bona fide assertion of title to property or to an incorporeal hereitament, or real franchise, ousted the jurisdiction of these inferior magistrates or tribunals.'

1 Wertheimer v. Mayor, &c., 29 Mo. 254, 1860.

* Warwick v. Mayo, 15 Gratt. (Va.) 528, 1860. To the same effeet, see Jackson . People, 9 Mich. 111, 1860; Grand Rapids v. Hughes, 15 Mich. 54, 1866. See chapter on Streets. What record of conviction before corporation officers or courts should show. 142; Muscatine v. Steck, 7 Iowa, 505.

Keeler v. Milledge, 4 Zabr. (N. J.) See chap. XXII. post.

CHAPTER XIV.

CONTRACTS.

§ 370. The mode of enforcing the contracts of mu nicipal corporations will be considered hereafter.' In this chapter we will treat, in the order below indicated, of the power of such corporations to make contracts of different kinds, the mode of exercising the power, and the effect of transcending it:

1. Extent of Power to Contract, and How Conferredsecs. 371, 372.

2.

Mode of Exercising the Power-sec. 373.

3. Seal Not Necessary Unless Required-May be Concluded by Vote or Ordinance-secs. 374, 375.

4. When Bound by Contracts Made by Agents-Mode of Execution-secs. 376-380.

5. Contracts Beyond Corporate Powers Void-Ultra Vires a defence-secs. 381, 382.

6.

7.

Implied Contracts-When Deducible-secs. 383, 384. Ratification of Unauthorized Contract-secs. 385-387. 8. Provision Requiring Letting to Lowest Bidder-secs. 388-392.

9. Contract of Suretyship-secs. 393.

10. Rights and Liabilities as Respects Authorized Contracts-Illustrations-Cases Mentioned. Power to Settle Disputed Claims-to Give Extra Compensation--to Employ Attorneys-secs. 394-399.

11. Contracts for Public Works-Rights of Contractors -secs. 400-403.

12. Same-Corporate Control Under Stipulation-secs. 400-403.

13. Evidences of Indebtedness-Negotiable Bonds-sers. 404, 405.

See post, chaps. XX. XXII. XXIII. Legislative power over contracts made by municipal corporations. See chap. IV. ante.

14. Ordinary Warrants or Orders-Their Legal Nature -secs. 406, 407.

14. Liability of Indorsers Thereof-sec. 408.

16. Payment and Cancellation of Orders and Warrants -sec. 409.

17. Rights and Remedies of Holders Thereof--secs. 410, 411.

18. Defences Thereto-Ultra Vires-Fraud-Want of Consideration-sec. 412.

19. Orders Payable out of a Particular Fund--sec. 413. Interest on Corporate Indebtedness-sec. 414.

20.

21.

Railroad Aid Bonds-Course of Decision in U. S. Supreme Court-secs. 415, 416.

22. Leading Cases in National Supreme Court on the Subject Noticed-secs. 417, 422.

23. Decisions in State Courts Referred to-Conclusion Stated-secs. 423-426.

§ 371. Extent of Power, and How Conferred.-In determining the extent of the power of a municipal corporation to make contracts, and in ascertaining the mode in which the power is to be exercised, the importance of a careful study of the charter or incorporating act, and the general legislation of the state on the subject, if there be any, cannot be too strongly emphasized. Where there are express provisions on the subject, these will, of course, measure, as far as they extend, the authority of the corporation. The power to make contracts, and sue and be sued thereon, is usually conferred, in general terms, in the incorporating act. But where the power is conferred in this manner it is not to be construed as authorizing the making of contracts of all descriptions, but only such as are necessary and usual, fit and proper, to enable the corporation to secure or carry into effect the purposes for which it was created; and the extent of the power will depend upon the other provisions of the charter defining the matters in respect of which the corporation is authorized to act. To the extent necessary to execute the special powers and func tions with which it is endowed by its charter, there is, in·

deed, an implied or incidental authority to contract obli gations and sue and be sued in the corporate name.'

1 Kyd, 69, 70; 2 Kent Com. 224; Angell & Ames, secs. 110, 271; Galena v. Commonwealth, 48 Ill. 423, 1868; Straus v. Insurance Company, 5 Ohio St. 59, 1855; Chaffee v. Granger, 6 Mich. 51; Douglas v. Virginia City, 5 Nev. 147, 1869; Goodrich ». Detroit, 12 Mich. 279; Bank of Columbia v. Patterson, 7 Cranch, 299, 1813; Siebrecht v. New Orleans, 12 La. An. 496, 1857; Bateman v. Mayor, &c., 3 Hurl. & Nor. 322, 1858.

Under general authority to make all contracts necessary for its welfare, a city may contract for water works. Rome v. Cabot, 28 Geo. 50; see Wells v. Atlanta, 43 Geo. 67. Duty and power as owner of water works. McKnight v. New Orleans, 24 La. An. 412, 1872. Grant . Davenport, Iowa Sup. Ct. 1873; Hall v. Houghton, 8 Mich. 458. For grading streets. Sturtevant v. Alton, 3 McLean, 393. For "breakwater" to protect streets of a city on the lake. Miller v. Milwaukee, 14 Wis. 642; approved, arguendo, by Cole, J., in Clason v. Milwaukee, 30 Wis. 316, 321, 1872. Supra, sec. 261, note. Legislative power over municipal contracts. Ante, chap. IV. Grant v. Davenport, Iowa Sup. Ct., 1873.

The city of Richmond possessed, under its charter, all the powers of municipal corporations, including the power "to contract and be contracted with," and its council was specially empowered to "pass all by-laws which they shall deem necessary for the peace, comfort, convenience, good order, good morals, health, or safety of the city, or of the people or property therein." In April, 1865, in anticipation of the evacuation of the city by the confederate army and the entry of the national forces, the city council ordered the destruction of all the liquor in the city, and pledged the faith of the city for the payment of its value, and it was decided by the Court of Appeals that under the provision of the charter above mentioned the council had authority to make the order and pledge, and hence the city was responsible for the value of liquor destroyed under the order of the council. Jones v. Richmond, 18 Gratt. (Va.) 517, 1868. The same question upon the same resolutions of the city council was presented to the United States Supreme Court in Richmond v. Smith, 15 Wall. 429, 1872; and it followed, without examination into its correctness, the exposition of the charter given by the State Court in Jones v. Richmond, supra. Upon the general principles of construction, the author doubts whether the order for the destruction of the liquors was within the scope of the corporate powers of the city. Ante, sec. 55. Contract made by city under government therein set up by the United States military authority held valid. Prather v. New Orleans, 24 La. An. 41. In the absence of a provision in the statute or ordinances to the contrary, a municipal corporation may lawfully enter into a contract with an officer of the corporation. Albright v. Town Council, 9 Rich. (South Car.) Law, 399. In this case, a contract entered into between the town council and intendant of a town, whereby the latter agreed to keep the streets in repair, was held valid. See, also, Railroad Company . Claghorn, Speers Eq. 562. Compare, City of Toronto v. Bowes, 4 Grant (Canada) 504, as to contracts with members of the council. Ante, aec, 221, note, sec. 230.

§ 372. Thus, if the corporation is authorized to erect markets, it may contract to buy, or may receive a grant of land, on which to place market buildings, and it may make contracts for the erection of market houses. As it is the general practice in granting municipal charters and in general acts for the incorporation of towns and cities, to enumerate their powers and define their duties, it will suffice in this place to remark generally that the authority to enter into contracts necessary and proper to carry into effect their powers and discharge their duties is impliedly given to every such corporation. But this implied authority is only co-extensive with the powers and duties of the corporation; and if any greater authority is claimed it must be sought for in an express or special grant from the legislature. It is scarcely necessary to observe that no contract can be made by a corporation which is prohibited by its charter or by the statute law of the state.' And it is a general and fundamental principle of law, that all persons contracting with a municipal corporation must, at their peril, inquire into the power of the corporation or its officers to make the contract; and a contract beyond the scope of the corporate power is void, although it be under the seal of the corporation. So, also, those dealing with the agent of a municipal

1

2

1 Jackson v. Bowman, 39 Miss. 671, 1861. Contracts to violate the charter, or to bargain away or restrict the free exercise of legislative discretion, vested in a municipality or its officers in reference to public trusts, are void. Ib. Thomas v. Richmond, 12 Wall. 349, 1870, in which notes issued by the city to circulate as money in contravention of law were adjudged void, and the city held not to be liable either in special or general assumpsit. Ante, sec. 61, and cases there cited.

Marsh v. Fulton County, 10 Wall. 676, 1870; Ante, sec. 55; Infra, sec. 380; Leavenworth v. Rankin, 2 Kansas, 357, 1864; Horn v. Baltimore, 30 Md. 218, 1868; Bridgeport v. Railroad Company, 15 Conn. 475, 493, 1843; Haynes . Covington, 13 Sm. & Mar. 408, 1850; Taft v. Pittsford, 28 Vt. (2 Wms.) 286, 1856; City Council v. Plank Road Company, 31 Ala. 76, 1857; Steam Navigation Company v. Dandridge, 8 Gill & J. 248, 319; Hodges v. Buffalo, 2 Denio, 110; Baltimore v. Eschbach, 18 Md. 276, 282, 1861; Baltimore v. Reynolds, 20 Md. 1; Dill v. Inhabitants, &c., 7 Met. 438, 1844; Branham v. San Jose, 24 Cal. 585, 602; Sturtevant v. Alton, 3 McLean, 393, 1844; Wallace v. San Jose, 29 Cal. 180; State v. Kirkley. 29 Md. 85, 111, 1868; Bateman v. Mayor, &c., 3 Hurl. & Nor. 323; State v. Haskell, 20 Iowa, 276. Within the scope of its power a corporation may contract to do an act at any place other than the one where it is located. Bank of Utica