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cannot pay either at contract rates or on quantum meruit, the value of the service. The contract is void because illegal; there cannot be an implied contract, because even the express, written contract is void because illegal. The law was passed to protect the taxpayer and the courts sustain the law; the contractor has ample opportunity to protect himself. He may claim hardship perhaps, but certainly not injustice; the result is due to his own negligence in not knowing whether the contract was legally let. Without such a law the taxpayer has no adequate protection. Express Legislative Grants. The municipality has no inherent right (nor one implied by the Common Law) to purchase, erect, or maintain water works, gas, or electric plants. This must come by express legislative grant, by statute. It is true also that, ordinarily, the municipality cannot exercise its powers beyond its boundaries; nevertheless a statute sometimes authorizes the municipality to build water work or construct sewers beyond its limits; public necessity demands this, and the law has much regard for necessity; this is shown in decisions under the Common Law as well as by statutory enactment to cure obvious defects in existing laws. Metropolitan Boards. In some cases several municipalities around some large city may well be included in a general scheme for water supply or for sewerage; in such case the State may provide a Metropolitan Water Board, a Sewerage Board, a Park Commission. State Control. There is discernible some tendency to exercise State functions to a greater extent in controlling or in directing parts of the work of the large municipal corporations, in which, as political units, there are conditions adverse to the most efficient business administration. Counties; Towns; School Districts. Counties and towns are also corporate bodies. In New England, the town is the active business unit, and the county's action is comparatively limited; through most of the country the county is the most important business unit, and the town's action is limited. In some parts of the country the school district is a corporate body with power to build schoolhouses and to issue bonds. An engineer connected with any work for a town, county, or school district, should make it a point to know the law with relation to advertising or any other requirements so as to secure technical compliance with such requirements in connection with the work. Warrants for Town Meeting. In New England, money is appropriated or work authorized by “town meeting.” An interesting requirement is that the “warrant,” or “warning ” as it is often called, the notice or call for the meeting, must specify the various items of business to be transacted. Action taken by the town meeting is not legal unless an article has been included in the warrant providing for action on that particular matter.
The town meeting is a pure democracy in whose proceedings all voters are entitled to participate, and it works well in towns with small population. As population increases, representative government becomes necessary, and has many advantages, as well as some defects. In cities and in counties representative government usually prevails. Title in Highways. The municipal corporation seldom possesses complete legal title to the highway; it is perhaps ultra vires for it to acquire such title. The ultimate title generally remains in the abutting owners, and if vacated as a highway the property reverts to these owners. Easement in Highways. The use of the streets or highways must be as an easement, for the benefit of the general public. This easement may have resulted from prescription, from dedication, or through the exercise of the right of eminent domain. The regulation of this easement is exercised by the municipality. The grant of a franchise in a highway comes from the legislature, but the charter often vests authority in the municipality to grant locations. The use of a street by a trolley car company is for the benefit of the public so as to make this a public easement, and the courts have decided that a similar use of a street in a subway or tunnel under the streets is a public use for which the abutting owners are not entitled to extra compensation. Landowner's Right in Highway. While in many cases a municipality may vacate a public way, it has been decided that a landowner entitled to a right of way possesses a right superior to the right to vacate ordinarily possessed by the municipality; but there are some decisions to the contrary. The right of eminent domain is not an inherent or a Common Law right of the municipality, but is a power which must be expressly delegated by the State and exercised by the municipality strictly in accordance with the terms of the statute. Bonds; Warrants. While a municipality has power to incur debts, it has no power to issue bonds, except as authorized by statute. Even then these may be issued only for public purposes; the building of either highways or railways is held to be for public purposes. In some parts of the country it is customary, in the absence of cash available, to issue warrants in payment for services or goods: these are simply orders on the treasury, payable when funds become available. These warrants are substantially negotiable and do in practice pass from hand to hand. With bonds or with warrants, limitations as to their issue are often imposed by statute. Taxation. The power of taxation exercised by municipalities is derived from the State and should be expressly granted in the charter. Although the power may be implied in some cases, it may be exercised for public purposes only. Special assessments in the form of betterments or benefits or otherwise must be expressly authorized, and the power must be exercised in strict conformity to the statute. Aid to Railroads. If properly authorized, a municipality may aid in the construction of railroads either by subscription or donation, and may issue bonds to secure the money required. Such action is not ultra vires, as railroads are public highways in which the public has rights, as has been stated in connection with the right of eminent domain. Officers and Employees. The work of most corporations, business or municipal, is performed through the services of a number of employees, some of them officers who are in a sense the corporation itself; some of them are essentially agents; others are known in the law as servants. The corporation, like an individual, is liable for torts of its servants committed within the course of their employment, whether malicious, accidental, or otherwise. The corporation may even be criminally responsible; or it may be guilty of contempt of court; that is for either offence it may be fined. In many cases, however, the action may better be had against the individual who is at fault, the officer, or agent, or servant, for he can be imprisoned. The corporation while financially more responsible in case of a fine, is not subject to imprisonment which may reach the individual, a fact which may act as a deterrent. Further attention to the subject of employees is reserved for the next chapter.
Agents and Servants. In England there formerly was a clear distinction made or attempted between agents and servants; a distinction of some importance where many of the latter were menials. In the United States at the present time there is a tendency to minimize any such distinction and to use the word “employee.” There is a wide gulf between certain agents and some kinds of servants. A real estate agent often has had no contact with his principal except to accept the agency and arrange the price; he conducts his agency by his own methods, independently of his principal who very frequently has weaker financial ability than the agent. A farm hand, on the other hand, does the work required in the form and in other respects as ordered by his master, and in general is without financial responsibility. While the distinction is here clear enough, in many cases it is difficult to distinguish between the two classes of employees. Judges and authors of law treatises have alike been unsuccessful in framing satisfactory definitions. Distinctions between Agents and Servants. Certain distinctions between agents and servants, however, may be stated. The servant does for his master as a matter of service the things that he is hired to do; the agent represents his principal in business transactions of the sort for which he is employed. The servant receives orders as to the performance of his work; the agent is intrusted with the business of his principal. The servant seldom has power to contract for his master's benefit; the agent's duties are largely contractual. The agent deals with third parties in connection with the property of the principal, in buying, selling, leasing, collecting, or some similar way. The servant does what is required of him in the way of service either to his master, or to third parties for the benefit of his master. The power of control by the master over the servant is an important, perhaps the essential, feature; this may sometimes serve to determine which of two or more persons is the master where the servant's act has created liability for someone. It is further true that a man may be an agent with reference to certain of his duties and a servant in certain other duties; he may be at
the same time both servant and agent.