Indemnifying Officers.

§ 98. Where a municipal corporation has no interest in the event of a suit, or in the question involved in the case, and where the judgment therein can in no way affect the corporate rights or corporate property, it cannot assume the defence of the suit, or appropriate its money to pay the judgment therein; and warrants or orders based upon such a consideration are void.' But a municipal corporation has power to indemnify its officers against liability which they may incur in the bona fide discharge of their duties, although the result may show that the officers have exceeded their legal authority.' Thus, it may vote to defend suits brought against its officers for acts done in good faith in the exercise of their office. So, if a public corporation is charged with the duty of repairing highways, and is made liable for de

Cabot, 28 Ga. 50; Hale v. Houghton, 8 Mich. 458. A municipal corporation owning lands on a watercourse, distant from the city, to supply its inhabitants with water, has no right (unless acquired by purchase or by the exercise of the right of eminent domain) to divert water to the injury of other riparian proprietors. Stein v. Burden, 24 Ala. 130, 1854; Fleming's Appeal, 65 Pa. St. 444; ante, sec. 13.

'Halstead v. Mayor, &c. of N. Y., 3 Comst. 430, 1850, affirming S. C., 5 Barb. 218, and deciding that corporate funds cannot be appropriated to pay penalties personally incurred by officers for refusing to discharge their of ficial duties; refer to, in explanation, Morris v. The People, 3 Denio, 381. And see, also, People v. Lawrence, 6 Hill, 244, holding that the supervisors of a county had no right to appropriate money to defray the costs of a jus tice of the peace who had been prosecuted for official misconduct and acquitted; recognized in Bank v. Supervisors, 5 Denio, 517, 521. Same principle, Merrill v. Plainfield, 45 N. H. 126. In Canada it is held that a municipal corporation cannot pass a by-law to pay the costs of a contested election to a municipal office, nor indemnify one of the parties to such a contest. In re Bell, &c., 2 Upper Can. Com. Pleas Rep. 507; S. C., 3 Ib. 400.

Pike v. Middleton (indemnifying tax collector), 12 N. H. 278, 1841; Fuller v. Groton, 14 Gray, 340; Sherman v. Carr (indemnifying executive officer), 8 R. I. 431, 1867; Briggs v. Whipple, 6 Vt. 95, 1834; Bancroft ↑. Lynnfield, 18 Pick. 566, 1836; Nelson v. Milford, 7 Pick. 18, 26, 1828; Babbitt v. Savoy, 3 Cush. 530, 1849; Hasdell v. Hancock, 3 Gray, 526, 1853. In Page v. Frankford, 9 Greenl. 155, this was left an open question. • 1b Baker v. Windham, 13 Maine (1 Shep.) 74, 1836.

fects therein, it has the incidental power to indemuify an officer who digs a ditch for the purpose of raising a legal question as to the bounds of the highway.'

§ 99. So, a vote by a town to refund money paid by assessors on an illegal assessment of a town tax made by them, is an express promise, founded upon a meritorious and legal consideration, and is irrevocably binding upon the town. And this, although, without such vote, the town could not have been compelled to refund or indemnify the assessors. But such a vote, by a town, would be without consideration in respect to state and county taxes.' So, if the town is not concerned, having nothing to lose or gain in the result of the litigation, a vote to indemnify an officer would be in excess of its power, and void; but it would be otherwise if the suit against the officer was in respect to matters in which the corporation was interested.*

Furnishing Entertainments.

§ 100. Without express power, a public corporation cannot make a contract to provide for celebrating the Fourth of July, or to provide an entertainment for its citizens or guests. Such contracts are void, and although the plaintiff complies therewith on his part, he cannot recover of the corporation.'

1 Bancroft v. Lynnfield, supra.

Nelson v. Milford, 7 Pick. 18, 1828. A separate action, on such a vote, lies against the town in favor of each assessor for his share, which does not include, however, his own tax, paid by him voluntarily. Ib.

Vincent v. Nantucket, 12 Cush. 105, 1853. "A promise to indemnify a tax collector if he would collect, by pretense of his official authority, a tax which he knew was illegal, would be an agreement to violate the law, and could not be enforced." Pike v. Middleton, 12 N. H. 281, per Gilchrist, J. Selectmen, under their authority "to order and manage all of the prudential affairs of the town," may bind the town thus to indemnify its officers. 12 N. H. 281, supra; ante, sec. 13, and notes.

'Briggs. Whipple, 6 Vt. 95, 1834.

Hodges v. Buffalo, 2 Denio (N. Y.) 110, 1846. Same principle: Cornell . Guilford, 1 Denio, 510; Hood v. Lynn, 1 Allen (Mass.) 103, 1861; Gerry . Stoneman, Ib. 319. Nor to celebrate surrender of Cornwallis: Tash v. Adams, 10 Cush. 252, 1852. Nor can towns in Massachusetts vote money for the purchase of uniforms for an artillery company: Claflin ».

Impounding Animals.

§ 101. Power to impound and forfeit domestic animals must be expressly granted to the corporation, and laws or ordinances authorizing the officers of the corporation to impound, and, upon taking specified proceedings, to sell the property, are penal in their nature, and where doubtful in their meaning will not be construed to produce a forfeiture of the property, but rather the reverse. And the pound-keeper cannot justify in an action brought against him by the property owner unless he has strictly complied with all the requisites of the law under which he acts. Thus, if he sells without giving the requisite notice, or for the full length of time required, he is liable, although the owner sustains no actual injury from the omission, or the owner may treat the sale as void and recover his property.'

Hopkinton, 4 Gray, 502, 1855. Corporations," says Jewett, J., in Hodges v. Buffalo, 2 Denio, 110, have no other powers than such as are expressly granted, or such as are necessary to carry into effect the powers expressly granted." In New York there is a statutory declaration of this common law principle. 1 Rev. Sts. 599, secs. 1–3. "Until the case of Hodges v. Buffalo, 2 Denio, 110, nothing," says Pratt, J., 3 Comst. 433, “was more frequent than for city authorities to vote largesses and give splendid banquets for objects and purposes having no possible connection with the growth or weal of the body politic, thus subjecting their constituents to unnecessary and oppressive taxation." Ante, sec. 55; post, chap. XXII. sec. 732.

1 White v. Tallman, 2 Dutch. (N. J.) 67, 1856; Willis . Legris, 45 M. 289; Ib. 218; Rounds v. Stetson, 45 Maine, 596, 1858; Gilmore v. Holt, 4 Pick. 258, 1826; Rounds v. Mansfield, 38 Maine, 586, 1854; Smith v. Gates, 21 Pick. 55, where the rule in the text was applied, although the sale was made only twenty minutes before the expiration of the time required by law. So actual knowledge, by the owner of the beasts, of the impounding thereof, is not equivalent to the written notice required by the statute. Coffin v. Field, 7 Cush. 355. Abridgment of the required notice for the shortest period avoids the sale; and so does a sale, at one bidding, of two animals having different owners. Clark . Lewis, 35 Ill. 417, 1864. Purchaser must show a regular and authorized sale when his title is questioned by the former owner. Ib. Breach of a pound, and liberating an animal therein confined, is no violation of an ordinance prohibiting "any person from opposing or interrupting any city officer in the execution of the ordinances of the city." Mayor, &c. v. Omburg, 22 Geo. 67, 1857. Marshal must strictly comply with the ordinance, or he becomes a trespasser from

A statute directing the mayor to issue a warrant annually within ten days from July 1st, commanding police officers to kill all dogs not licensed according to law, whenever and wherever found," is not in conflict with the constitution of Massachusetts.'

Party Walls.

$ 102. Power in a charter to pass ordinances "to authorize the erection of party walls and fences, and to regulate them," includes the power to authorize their erection upon the application of either owner, and without the consent of the other; and such an ordinance is not uncon

the beginning: 13 Pick. 384; 4 Ib. 258; 21 Ib. 55; 13 Met. 407; 7 Cush. 355; 9 Pick. 14; 12 Met. 118; 23 Pick. 255; 12 Met. 198. Owner cannot legally break pound and rescue animals: 5 Pick. 514; 5 Cush. 267. Pound defined: 2 Cush. 305. Marshal cannot delegate his authority to others to impound for him generally, and in his absence, but may have assistants to act in concert with him: Jackson v. Morris, 1 Denio, 199. Officers must use the public pound: 1 Rhode Island, 219. Replevin does not lie against a pound-keeper, at common law, while the creatures are in his legal custody. Co. Litt. 47 B.; Ib. 145 B.; 1 Chit. Pl. 159; Pritchard v. Stevens, 6 Durn. & E. 522; Isley v. Stubbs, 5 Mass. 283; Smith v. Huntington, 3 N. H. 76; but it does lie if he voluntarily parts with his legal control over them, or if he impounds them in any other places than those prescribed by the law, as, for example, in his pasture or barn, although this be done the more conveniently to furnish them with food and drink: Bills v. Kinson, 1 Foster (N. H.) 448, 1850. In New Hampshire, if creatures are found "doing damage," they may be impounded and appraisers are to ascertain "whether any damage was done;" heid that the statute contemplated actual, and not merely nominal damages, to justify impounding: Osgood *. Green, 33 N. H. 318, and cases cited. As to power to take up and forfeit animals at large, see also, chapter on Ordinances, post.

1

1 Blair. Forehand, 100 Mass. 136. The act of July 3d, 1863, entitled "an act in relation to damages occasioned by dogs," so far as it undertakes to charge the owner with the amount of damage done by his dog, as fixed by the selectmen of the town, without an opportunity to be heard, is unconstitutional; because it is contrary to natural justice and not within the scope of legislative authority conferred by the constitution on the general court, and also because it is in violation of the provision of the bill of rights which secures the right of trial by jury in all controversies concerning property, except in cases where it had not theretofore been used and practiced: East Kingston v. Towle, 48 N. H. The legislature have power to make towns liable for damage done within their limits by dogs, and to give towns a right of action to recover the actual damage from the owners of the dogs. Ib.

stitutional because compensation is not provided for the land occupied by the wall.'

Public Defense.

§ 103. During the late rebellion, acts were passed by many of the legislatures of the adhering states, in effect authorizing municipalities to raise money, by loans and taxation, to pay bounties to volunteers, to enable the municipality to fill its quota under the calls of the president for troops, and thereby avoid an anticipated draft. The constitutional principles involved in legislation of this character will be found learnedly discussed in the cases below cited, which fully establish the validity of such legislation.' But, without express authority, a municipality possesses no such power; yet, if exercised, it may be validated by subsequent legislative action.'

Aid to Railroad Companies.

§ 104. The most noted of extraordinary powers conferred upon municipal and public corporations is the authority to aid in the construction of railways by subscribing to their stock, and taxing the inhabitants or the property within their limits to pay the indebtedness thereby incurred. Legislation of this kind had its origin within a period comparatively recent, and has been more or less resorted to, at times, by almost every state in the Union. As

2

1 Hunt v. Ambruster, 17 N. J. Eq. 208, 1865.

Speer v. School Directors, 50 Pa. St. 150, two judges dissenting. See Hilbish v. Catherman, 64 Pa. St. 154, 1870, where the prior cases in that state are commented on by Agnew, J. State v. Richland Township, 20 Ohio St. 362; Thompson v. Pittson, 59 Maine, 545; Broadhead v. Milwaukee, 19 Wis. 652; Booth v. Woodbury, 32 Conn. 118; Shackford v. Newington, 46 N. H. 415; Lowell v. Oliver, 8 Allen (Mass.) 247; Freeland v. Hastings, 10 Allen, 570; Comer v. Folsom, 13 Minn. 219; Cooley Const. Lim. 219–229; Veazie v. China, 50 Maine, 518.

Stetson v. Kempton, 13 Mass. 272; Fiske . Hazzard, 7 Rh. Is. 438; Shackford v. Newington, supra; ante, sec. 13.

Booth v. Woodbury, 32 Conn. 118; Kunkle v. Franklin, 13 Minn. 127; Comer v. Folsom, 13 Minn. 219; Hilbish v. Catherman, 64 Pa. St. 154, 1870 State v. Richland Township, 20 Ohio St. 362, 1870; ante, sec. 46.