4 Cusick r. Norwich, 40 Conn. 375; and see Mayor etc. r. Perdue, 53 Ga. 607; McCarthy v. Syracuse, 46 N. Y. 194; Rosenberg v. Des Moines, 41 Iowa, 415; Market v. St. Louis. 56 Mo. 189.

5 See Randall v. Eastern R. R. Co. 106 Mass. 276; City of Freeport . Isbell, 83 111. 440; 25 Am. R. 407.

6 Monies v. Lynn, 119 Mass. 273. A city is not liable for injuries caused by the fall of a public market-house, caused by a cyclone: Flori v. St. Louis, 69 Mo. 341; 33 Am. R. 504.

§ 306. Excavations and obstructions.-Where streets are used for the deposit of building materials by adjoining proprietors, or are dug up for the construction of sewers, the laying of water or gas pipes, or for other improvements by the corporation or by the adjoining owner, it is the duty of the corporation to see that proper guards, or lights by night, are erected and maintained around such excavations or obstructions, so that travelers be not exposed to injury;1 and for a neglect of this duty, whereby a person is injured, the corporation is liable.2 And its liability is not varied by the consideration that it has or has not contracted with the persons doing the work to adopt such precautions. So if cellar doors opening out on the sidewalk are negligently kept or left open,4 or a hole in a street has been permitted to remain after attention of the proper officers has been called to the defect, the corporation is liable to a person injured thereby.5 But where the corporation has been compelled to pay damages for a defect in a street or sidewalk, for which it became legally liable through the wrongful act of an individual, it may recover reimbursement from him.6

1 Storrs v. Utica, 17 N. Y. 104; Chicago v. McGiven, 78 Ill. 347; Cusick v. Norwich, 40 Conn. 375; Covington v. Bryant, 7 Bush, 248; Mayor etc. v. Dodd, 58 Ga. 238; Wendell v. Mayor etc. 4 Abb. N. Y.App. 563; and see King v. N. Y. Cent. etc. R. R. Co. 66 N. Y. 181.

2 Cusick v, Norwich, 40 Conn. 375; Seneca Falls v. Zalinski, 8 Hun, 571; Mayor etc. v. Cooley, 55 Ga. 17.

3 Storrs v. Utica, 17 N. Y. 104; Springfield v. Le Claire, 49 Ill. 476; and compare Sewall v. St. Paul, 20 Minn. 511; Chicago v. Joney, 60 Ill. 383; King v. N. Y. Cent. etc. R. R. Co. 66 N. Y. 181; Chicago v. Dermody, 61 Ill. 431; City of Joliet . Harwood, 86 Ill. 110; 29 Am. R. 17; City of Erie v. Caulkins, 85 Pa. St. 247; 27 Am. R. 642.

4 Smith v. Leavenworth, 15 Kan. 81; Chapman v. Mayor etc. 55 Ga. 566; and see Niblett v. Nashville, 12 Heisk. 684; 27 Am. R. 755.

5 Case v. City of Naverly, 36 Iowa, 545; and see Fort Wayne v. De Witt, 47 Ind. 391; Bassett v. St. Joseph, 53 Mo. 290: 14 Am. R. 446; Davenport v. Ruckman, 16 Abb. Pr. 341; 10 Bosw. 20.

6 Seneca Falls r. Zalinski, 8 Hun, 571; Severin v. Eddy, 52 Ill. 189; and see Centerville r. Woods, 57 Ind. 192; Chicago v. Robbins, 2 Black, 418; 4 Wall. 657; Fahey v. Harvard, 62 Ill. 28.

§ 307. Damage by fires.-Municipal authority, either by express grant or by virtue of the power to make police regulations or needful by-laws, usually extends to the adoption of means to prevent damage by fire. And under an authority to provide for the safety of its inhabitants, a municipal corporation may establish fire limits, and prevent the erection of wooden buildings therein.2 But the power to organize and regulate a fire department being in its nature legislative or judicial, a failure of the corporate authorities to exercise the power does not render the corporation liable to an action therefor. Nor is it liable to the owner of property consumed by fire, for the reason that it failed to keep cisterns filled with water, firehooks, etc., in repair, whereby the fire might have been extinguished before communicating with such owner's property. Nor is it liable for the destruction of

a building torn down to arrest the progress of a fire, unless such liability is created by statute; 5 nor, in the absence of express statute, is it liable for injuries caused by the negligence of a fireman while engaged in the discharge of his duties; 6 nor for damages by a voluntary fire association while engaged in extinguishing a fire within the corporate limits.7

1 See Robinson r. St. Louis, 28 Mo. 488; Van Sicklen v. Burlington, 27 Vt. 70; Wadleigh v. Gillman, 12 Me. 403; Vanderbilt v. Adams, 1 Cowen, 349.

2 Vanderbilt v. Adams, 7 Cowen, 349; Mayor etc. v. Hoffman, 29 La. An. 651; 29 Am. R. 345; Mayor etc. v. Thorne. 7 Paige, 261; Brady . Insurance Co. 11 Mich. 425; and see Aldrich v. Howard, 7 R. 1. 199; Brown v. Hunn, 27 Com. 332; City of Troy v. Winters, 2 Hun, 63; 4 Thomp. & C. 256; Salem v. Maynes, 123 Mass. 372.

3 Heller v. Sedalia, 53 Mo. 159; 14 Am. R. 444; Grant v. City of Erie, 69 Pa. St. 420; 8 Am. R. 272; Wheeler v. Cincinnati, 19 Ohio St. 19; 2 Am. R. 363; Brinkmeyer v. Evansville, 29 Ind. 187; Hafford v. New Bedford, 16 Gray, 297.

4 Patch v. Covington, 17 Mon. B. 722; Wheeler v. Cincinnati, 19 Ohio St. 19; 2 Am. R. 368; Jewett v. New Haven, 38 Conn. 368; 9 Am. R. 382.

5 McDonald v. Red Wing, 13 Minn. 38; Keller v. Corpus Christie, 50 Tex. 614; 32 Am. R. 613; Correas v. San Francisco, 1 Cal. 452. See

also Field v. Des Moines, 39 Iowa, 575; 18 Am. R. 46; Mayor etc. v. Lord, 18 Wend, 126; People v. Buffalo, 76 N. Y. 553; 32 Am. R. 337. But see Dawson v. Kultner, 48 Ga. 133.

6 Jewett v. New Haven, 38 Conn. 368; 9 Am. R. 382; Howard v. San Francisco, 51 Cal. 52; Fisher v. Boston, 104 Mass. 87; 6 Am. R. 196; and see Hayes r. Oshkosh, 33 Wis. 310; 14 Am. R. 764; Greenwood v. Louisville, 13 Bush, 226; 26 Am. R. 263.

7 Torbush v. Norwich, 38 Conn. 225; 9 Am. R. 395.

§ 308. Injuries by mob.-Municipal corporations are not liable at common law for damage to property done by mobs or riotous assemblages:1 nor for injuries caused by the failure of its officers to repress a mob.2 But the legislature may provide a remedy applicable to such cases, and may regulate the mode of assessing damages.3

1 Western College v. Cleveland, 12 Ohio St. 375; Prather v. Lexington, 13 Mon. B. 559; Mayor etc. v. Poultney, 25 Md. 107; Dale County v. Gunther, 46 Ala. 118; County of Allegheny v. Gibson, 90 Pa. St. 397; 35 Am. R. 670.

2 Prather. Lexington, 13 Mon. B. 559; Hart v. Bridgeport, 13 Blatchf. 289; Campbell v. City of Montgomery, 53 Ala. 527; 25 ̊ Am. R. 656.

3 See Luke v. Brooklyn, 43 Barb. 54; Sarles v. Mayor etc. 47 id. 447; Loomis v. Supervisors, 6 Lans. 269; Palmer r. Concord, 48 N. II. 211; Brightman v. Bristol, 65 Me. 426; Wing Chung v. Los Angeles, 47 Cal. 531; Duffy v. Baltimore, Taney, 200; Atchison v. Twine, 9 Kan. 350; In re Pennsylvania Hall, 5 Pa. St. 204; Solomon v. City of Kingston, 24 Hun, 562.

§ 309. Officers-election or appointment of.-In this country, provision is usually made in the charter of a municipal corporation as to all the principal officers thereof. And where such is clearly the legislative intent, the corporation cannot, by virtue of any inherent or implied power, create another office, appoint an incumbent, and clothe him with the powers of a municipal officer.2 The provisions of the charter as to the time and mode of election or appointment of officers must also be observed; the powers of the corporation, in this respect, being merely such as the charter affirmatively gives. the charter provides that the mayor shall be elected, a vacancy occurring in the office of mayor cannot be filled by appointment by the governor of the state, under a

If

statute authority to fill vacancies in municipal offices.5 But a city council having authority to elect certain officers may appoint them by resolution, if no mode of election is prescribed. And a constitutional provision that county and township officers shall be elective does not necessarily imply that city and village officers must be elected. A charter provision that the common council of a city shall "judge of the qualifications, elections, and returns of their own members," has been held to oust the courts of jurisdiction to inquire into those questions.8 But the contrary has likewise been held. A municipal corporation is not dissolved by the mere failure to elect officers, 10 while the capacity to elect remains. Failure to hold an election on the law day does not destroy the right to hold an election later; 12 the previous incumbents hold over, and may lawfully exercise the functions of their office, until their successors are elected.18 The power which a board of supervisors exercise in conferring title to an office is that of appointment and not of election; 14 and it is within the power of the board to revoke an appointment made by it, at any time before the commission or certificate is issued to the person appointed. 15 Acceptance of the resignation of a municipal office by the proper authorities is not necessary to render the resignation effective, unless required by statute. 16

1 See State v. Von Baumbach, 12 Wis. 310; White v. Tallman, 2 Dutch. 67.

2 Hoboken v. Harrison, 30 N. J. L. 73. Compare Field v. Girard College, 54 Pa. St. 233; People v. Bedell, 2 Hill, 196. A charter power to create an office by ordinance includes power to abolish the office: Waldraven v. Memphis, 4 Cold. 431; Augusta v. Sweeny, 44 Ga. 463; 9 Am. R. 172. But compare Caulfield v. State, 1 So. Car. 461.

3 Vason v. Augusta, 38 Ga. 542; Stadler v. Detroit, 13 Mich. 346; and see Rex v. Chitty, 5 Ad. & E. 609; Rex v. Mayor etc. 7 Mod. 373.

4 People v. Ransom, 56 Barb. 514.

5 Mayor etc. v. Hoffman, 29 La. An. 651.

6 Low v. Commissioners etc. Charlt. R. M. 302; see Russell v. Chicago, 22 111. 285; Commonw. v. Pittsburg, 14 Pa. St. 177.

7 State v. Covington, 29 Ohio St. 102.

8 People v. Metzker, 47 Cal. 524; and see Selleck v. South Norwalk, 40 Conn. 359; Peabody v. School Committee, 115 Mass. 383; State v. Marlow, 15 Ohio St. 114.

BOONE CORP.-41.

9 State v. Fitzgerald. 44 Mo. 425; People v. Hall, 80 N. Y. 117; and see Burginhofen v. Martin, 2 Rawle, 369; Wammack v. Holloway, 2 Ala. 31; McVeany v. Mayor, 80 N. Y. 185.

10 Welch v. Str. Genevieve, 1 Dill. 130; and see Colchester v. Brooke, 7 Q. B. 383.

11 Clarke Rochester, 5 Abb. Pr. 107; I. 197; Philips v. Wickham, 1 Paige, 590. Commissioners, 93 U. S. 258.

President v. Thompson, 20
Compare Barkley v. Levee

12 Commissioners v. McDaniel, 7 Jones, 107; Tharin v. Seabrook, 6 Rich. 113; Coles County v. Allison, 23 Ill. 437.

13 People v. Fairbury, 51 Ill. 149. Compare Barkley v. Levee Com missioners, 93 U. S. 258.

14 Conger v. Gilmer, 32 Cal. 75.

15 Conger. Gilmer, 32 Cal. 75. And compare Pratt v. Luther, 45 Ind. 250.

16 State v. Mayor etc. 4 Neb. 260.

§ 310. Powers and duties of officers.-Municipal officers can only exercise such powers as are conferred upon them by legislative authority, either expressly or by fair implication;1 and they must follow strictly the provisions of the statute conferring their powers.2 So persons dealing with such officers must ascertain, at their peril, that they are acting within the scope of the powers conferred. Powers and duties involving discretion, conferred by law upon specific officers, must be personally exercised; and cannot be by them delegated to other officers, unless the statute expressly permits it.5 And municipal officers cannot act as such so as to bind the municipality in respect to matters in which they are personally interested. The duties of the mayor are properly executive and administrative; and he has no jurisdiction, unless it be expressly conferred, to try civil causes. But although not vested with any distinct judicial functions, he may cause the arrest of and impose fines upon disorderly persons;9 and he has a summary jurisdiction to fine those who obstruct the public way.10 Neither the mayor nor the city solicitor have authority to employ counsel in behalf of the city, unless such authority is expressly conferred. The police officers of a city may be authorized by the city council to arrest upon view, and without warrant, persons violating city ordinances; 12