24 Me. 349; Pratt v. Swanton, 15 Vt. 147; Wilson v. School Dist., 32 N. H. 118; 1 Dillon on Municipal Corporations, sec. 464. In such case, to render the municipal corporation liable, the contract must be ratified or the work accepted by some express act of the council. Any other doctrine fails to extend to municipal corporations the privileges and immunities that are accorded by law to other contracting parties, public or private.

Nor can any inference of acceptance or ratification be deduced from the acts of the council in accepting or paying for the work performed under the written contract. This it not only had a right but by its contract was bound to do. And because it complied with the terms of its contract, no inference can be drawn that it intended to accept any work performed without its authority or assent: Durango v. Pennington, 8 Col. 257. Before it can be held to have accepted the work performed by plaintiff by the direction of the engineer and individual members of the council, it must appear by some affirmative act that it accepted the work, or from which such acceptance can be inferred. Mere silence is not sufficient; for if so, it would require a meeting of the council and an express dissent every time an officer undertakes to impose an unauthorized liability upon the city to enable the corporation to prevent ratification: Otis v. Stockton, 76 Me. 506. Of course, there may be times when a corporation as well as an individual should act or speak, or when it does speak by the force of circumstances; but such is not this case.

It is urged that the court erred in holding that the knowledge that plaintiff made some claim for extra work, obtained by individual members of the council on the street, would not bind them, when they came to vote upon the resolution offered, to accept the work performed under the contract with plaintiff, unless the plaintiff made such claim at the time the resolution was under consideration. In support of this contention, reliance is had upon the language of the court in the former opinion, that "two of the members of the council, and the mayor, who authorized the work, had knowledge of their own acts in directing the work to be done; and when they met and accepted it, it is difficult to see why the city was not thereby rendered liable." It will be observed that this statement is also based upon the fact that the work was accepted by the council at an official meeting; and it was held that having so accepted the extra work, the defendant was liable without any formal reso

lution authorizing or ratifying the act of the engineer and individual members of the council in directing it to be done, and that the ratification would be implied from the act of accepting the work with knowledge that plaintiff claimed pay therefor. But it is not perceived how knowledge that plaintiff claimed pay for work performed under an unauthorized contract can render the defendant liable until it has done some act amounting to an acceptance of the work or ratification of the contract. Even had the individual members of the council who had knowledge of and directed this work agreed with plaintiff to ratify the contract at a subsequent meeting of the council, such arrangements would have been contrary to public policy, and not binding upon them when they came to act officially upon the question: McCortle v. Bates, 29 Ohio St. 419; 23 Am. Rep. 758. A sufficient answer to the suggestion that the conclusion we have reached works a hardship upon plaintiff, who in good faith performed the extra work, supposing that the persons who directed it to be done were authorized to do so, is, that every person dealing with the agents of a municipal corporation must, at his peril, see that such agents are acting within the scope of their authority and line of their duty, and if he make an unauthorized contract, he does so at his own risk. The courts cannot disregard the well-settled rules of law, in order to avoid an apparent injustice in a particular case.

The judgment of the court below is therefore affirmed.

MUNICIPAL CORPORATIONS - RATIFICATION BY, OF UNAUTHORIZED ACTS. Municipal corporations cannot be presumed to ratify and confirm the acts of their agents or officers, but acts of ratification by such bodies politic should be direct and explicit, with full knowledge of the facts: Mayor v. Reynolds, 20 Md. 1; 83 Am. Dec. 435, and note.

AGENCY- ACTS OF PUBLIC AGENTS, HOW FAR BINDING. The acts of an agent of the government or of an individual are binding only to the extent of the authority conferred: Martin v. United States, 2 T. B. Mon. 89; 15 Am. Dec. 129, and note. The government, or any other public body, is not bound by the acts, declarations, or representations of its agent, unless it manifestly appears that the latter is acting within the scope of his authority: Mayor v. Reynolds, 20 Md. 1; 83 Am. Dec. 535, and note.

LAW OF CASE. A construction placed upon a deed of trust by the supreme court, reversing the judgment and remanding the cause for a new trial, is the law of the case, and the question of its correctness will not be considered upon a second appeal: More v. Calkins, 95 Cal. 435, ante, p. 131, and note.

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STATE V. George.

[22 OREGON, 142.]

OFFICERS, POWER to Appoint, NOT EXCLUSIVELY EXECUTIVE, BUT MAY BE EXERCISED BY LEGISLATURE. The power to appoint to office is not a power belonging exclusively to the executive branch of the government of Oregon, but may, in some instances, be exercised by the legislature. OFFICERS, MEMBERS OF BRIDGE COMMITTEE, under "Meussdorffer Act," ARE NOT. -The members of the bridge committee provided for by the Oregon act of February 18, 1891, known as the "Meussdorffer Act," are not officers within the meaning of that term as used in the constitution of that state, but mere agents of the city of Portland for the performance of certain duties defined by the act. DELEGATION OF LEGISLATIVE POWER-AUTHOrizing Certain JUDGES TO APPOINT BRIDGE COMMITTEE IS NOT. It is not a delegation of legislative power for the legislature to authorize certain judges of the circuit court of the county to appoint the bridge committee provided for by the "Meussdorffer Act," nor is the authority so given in conflict with the constitution of Oregon. And moreover, the power to appoint may be upheld, on the ground that the judges, in performing this duty, act as individuals, and not as judges.

ELIGIBILITY OF MEMBER OF LEGISLATURE TO SERVE ON BRIDGE COMMITTEE UNDER "MEUSSDORFFER ACT."- A member of the legislature which enacted the "Meussdorffer Act" is not disqualified to serve, during the term for which he was elected, as a member of the bridge committee created by the act, since the position of a member of that committee is not an office within the meaning of the constitution.

PROCEEDING in the nature of a quo warranto, brought to try the title of the respondents to hold the office of member of the bridge committee, under the act of the legislative assembly commonly known as the "Meussdorffer Act." Section 2 of that act provided that the power and authority given to certain cities named in the act, since consolidated as the city of Portland, to construct, purchase, hire, keep up, and maintain bridges across the Willamette River, and to issue and dispose of bonds therefor, should be exercised by eight tax-payers of Multnomah County, to be appointed by the two judges of the circuit court of that county, who should be styled the "Bridge Committee." The two judges, acting in pursuance of the act, and within the time limited therein, duly appointed the respondents to the position of bridge committee men. The committeemen met within the time prescribed in the act, qualified, and organized in all respects in conformity with the law. The petition alleged that the defendants, ever since their appointment, and under it, had acted as and claimed to be, and still were acting as and claiming to be, the bridge committee; that claiming to be said bridge committee, they

were about to issue, sell, and dispose of a large amount of negotiable bonds, etc., as provided for in said free bridge act, which said bonds would be a burden upon the property of the relator and other citizens and tax-payers of the city of Portland, and subject them to expensive litigation in order to prevent the assessment and collection of taxes upon their property, for the payment of the principal and interest of such bonds, etc., and concluded with a prayer for a judgment of ouster. The defendants demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and rendered judgment dismissing the action, and the relator appealed.

T. A. Stephens, district attorney, and Paxton and Paddock, for the appellant.

William T. Muir, city attorney, for the respondents.

LORD, J. The question presented for our determination arises upon the sufficiency of the facts to show whether or not the defendants are entitled to hold the office of bridge committee and to exercise the functions thereof. The aim of the proceeding is to test the constitutionality of the method provided by the act (Laws 1891, p. 633), commonly known as the Meussdorffer Act, for the appointment of the bridge committee. It is insisted that the facts alleged show that the defendants are holding the offices of bridge committee and exercising the functions thereof without title or legal right, because the two judges of the circuit court for Multnomah County, referred to in the act, are prohibited by article 3 of the constitution from exercising the appointing power, or any function other than judicial. This proceeds upon the assumption that the act of the two judges of the circuit court in appointing the bridge committee was not a judicial duty, nor a function pertaining to the judicial department of the government. By article 3 of the constitution the powers of the government are divided into three separate departments, the legislative, the executive, including the administrative, and the judicial, and any person charged with official duties under one of these departments is prohibited from exercising the functions or powers confided to either of the other departments, except as in the constitution expressly provided.

It is claimed that the two judges of the circuit court, no matter whether they are referred to in the Meussdorffer Act as individuals or judicial officers, are persons charged with

official duties under the judicial department of the government, as the members of the legislature are under the legislative department, and that this constitutional provision prohibits the legislature from conferring upon such judges, and such judges from exercising, the power of appointment conferred by the act, and hence such act and all appointments under it are void. There can be no doubt that there are authorities to the effect that the exercise of the power of appointment to office is an executive act, and that being such, the power cannot be exercised by the legislature or judiciary under a constitutional provision distributing the powers of government into three separate departments like our own. But this question, although not directly passed upon by the court in Biggs v. McBride, 17 Or. 640, nevertheless received a good deal of its attention. The point was there made, that so much of the act creating the offices of railroad commissioners as undertook to fill them by an election in joint convention of both houses of the legislature was in conflict with the constitution and void. After referring to article 3 and section 1 of article 5 of the constitution, Strahan, J., said: "Now, if it could be shown that the power to appoint all officers which are not expressly made elective by the people is a part of the chief executive power of the state, the appellant's contention would be sustained, but no authority whatever has been cited to sustain this view, nor is it believed that any exists. On the contrary, the provisions of the fifth article of the constitution, which relates to the executive department, all seem at variance with this view. The framers of this instrument evidently designed that no prerogative powers should be left lurking in any of its provisions. No doubt they remembered something of the history of the conflicts with prerogatives in that country from which we inherited the common law. They therefore defined the powers of the chief executive of the state so clearly and distinctly that there ought to be no controversy concerning the method of filling the same, or in some cases of changing the method of filling an existing office." After proceeding to enumerate several instances in which the power had been exercised by the legislature in making these appointments of office, which were in no way connected with the discharge of legislative duties, he concluded his opinion on this point by saying: "The power exercised by the legislature in the appointment of some of these officers is almost coeval with the constitution. The power thus exercised has never been