does not, by once establishing the grade, preclude itself from changing it as the public needs or interest may seem to require, notwithstanding the incidental injury which must result to those individuals who have erected buildings with reference to the first grade.1 So a corporation having power under the charter to establish and regulate streets cannot under this authority, without explicit legislative consent, permit individuals to lay down a railway in one of its streets, and confer privileges exclusive in their character and designed to be perpetual in duration. In a case where this was attempted, it has been said by the court: "The corporation has the exclusive right to control and regulate the use of the streets of the city. In this respect, it is endowed with legislative sovereignty. The exercise of that sovereignty has no limit, so long as it is within the objects and trusts for which the power is conferred. An ordinance regulating a street is a legislative act, entirely beyond the control of the judicial power of the State. But the resolution in question is not such an act. Though it relates to a street, and very materially affects the mode in which that street is to be used, yet

1 Calendar v. Marsh, 1 Pick. 417; Griggs v. Foote, 4 Allen, 195; Radcliffe's Executors v. Brooklyn, 4 N. Y. 195; Graves v. Otis, 2 Hill, 466; O'Connor v. Pittsburg, 18 Penn. St. 187; Reading v. Keppleman, 61 Penn. St. 233; Shinner v. Hartford Bridge Co., 29 Conn. 523; Snyder v. Rockport, 6 Ind. 237; La Fayette v. Bush, 19 Ind. 326; La Fayette v. Fowler, 34 Ind. 140; Keal v. Keokuk, 4 Greene (Iowa), 47; Cole v. Muscatine, 14 Iowa, 296; Russell v. Burlington, 30 Iowa, 262; Roberts r. Chicago, 26 Ill. 249: Murphy v. Chicago, 29 Ill. 279; Quincy v. Jones, 76 Ill. 231; Rounds v. Mumford, 2 R. I. 154; Rome v. Omberg, 28 Geo. 46; Roll v. Augusta, 34 Geo. 326; Reynolds v. Shreveport, 13 La. Ann. 426; White v. Yazoo City, 27 Miss. 357; Humes v. Mayor, &c., 1 Humph. 403; St. Louis v. Gumo, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Keasy v. Louisville, 4 Dana, 154; Smith v. Washington, 20 How. 135; Blount v. Janesville, 31 Wis. 648; Nevins v. Peoria, 41 Ill.

502; Pontiac v. Carter, 32 Mich. 164; Wegmann v. Jefferson, 61 Mo. 55.

Compare Louisville v. Rolling Mill Co., 3 Bush, 416. The law would seem to be otherwise declared in Ohio. See Rhodes v. Cincinnati, 10 Ohio, 159; McCombs v. Akron, 15 Ohio, 474; s. c. 18 Ohio, 229; Crawford v. Delaware, 7 Ohio, N. s. 459. Compare Alexander v. Milwaukee, 16 Wis. 256. Courts will not undertake to control municipal discretion in the matter of improving streets. Dunham v. Hyde Park, 75 Ill. 371; Brush v. Carbondale, 78 Ill. 74. The owner of a lot on a city street acquires no prescriptive right to collateral support for his buildings which can render the city liable for injuries caused by grading the street. Mitchell v. Rome, 49 Geo. 19; s. c. 15 Am. Rep. 669 ; Quincy v. Jones, 76 Ill. 231; s. c. 20 Am. Rep. 243. But the failure to use due care and prudence in grading may render the city liable. Bloomington v. Brokaw, 77 Ill. 194.

in its essential features it is a contract. Privileges exclusive in their nature and designed to be perpetual in their duration are conferred. Instead of regulating the use of the street, the use itself to the extent specified in the resolution is granted to the associates. For what has been deemed an adequate consideration, the corporation has assumed to surrender a portion of their municipal authority, and has in legal effect agreed with the defendants that, so far as they may have occasion to use the street for the purpose of constructing and operating their railroad, the right to regulate * and control the use of that [* 208] street shall not be exercised. . . . It cannot be that powers vested in the corporation as an important public trust can thus be frittered away, or parcelled out to individuals or jointstock associations, and secured to them beyond control."1

So it has been held, that the city of Philadelphia exercised a portion of the public right of eminent domain in respect to the streets within its limits, subject only to the higher control of the State and the use of the people; and therefore a written license granted by the city, though upon a valuable consideration, authorizing the holder to connect his property with the city railway by a turnout and track, was not such a contract as would prevent the city from abandoning or 'removing the railway whenever, in the opinion of the city authorities, such action would tend to the benefit of its police.2

Thus hedged in by the limitations which control the legislative power of the State, these corporations are also entitled to the same protection which surrounds the exercise of State legislative power. One of these is, that no right of action shall arise in favor of an individual for incidental injury suffered by him in consequence of their adopting or failing to adopt legislative

c. 15. In Milhau v. Sharp, supra, it was also held that a corporation, with authority" from time to time to regulate the rates of fare to be charged for the carriage of persons," could not by resolution divest itself thereof as to the carriages employed on a

1 Milhau v. Sharp, 17 Barb. 435; s. c. 28 Barb. 228, and 27 N. Y. 611. See also Davis v. Mayor, &c. of New York, 14 N. Y. 506; State v. Mayor, &c., 3 Duer, 119; State v. Graves, 19 Md. 351. Compare Chicago, &c. R. R. Co. v. People, 73 Ill. 541. The consent of the legislature in any such street-railway. case would relieve it of all difficulty, except so far as questions might arise concerning the right of individuals to compensation, as to which see post,

2 Bryson v. Philadelphia, 47 Penn. St. 329. Compare Louisville City R. R. Co. v. Louisville, 8 Bush, 415.

action. Another is, that the same presumption that they have proceeded upon sufficient information and with correct motives shall support their legislative action which supports the statutes of the State, and precludes judicial inquiry on these points.2

These rules, however, must be confined to those cases [* 209] where the corporation *is exercising a discretionary

power, and where the reasons which are to determine whether it shall act or not, and if it does, what the action shall be, are addressed to the municipal body exclusively. If the corporation is in the position of trustee of property for other persons, it is subject to the same supervision and control with other trustees, and where a specific act is required by law to be done, exact performance may be compelled as in other cases.

Among the implied powers of such an organization appears to be the power to defend and indemnify its officers where they have incurred liability in the bona fide discharge of their duty. It has been decided in a case where irregularities had occurred in the assessment of a tax, in consequence of which the tax was void, and the assessors had refunded to the persons taxed the moneys which had been collected and paid into the town, county, and State treasuries, that the town had authority to vote to raise a sum 1 Radcliffe's Ex'rs v. Mayor, &c. Rep. 272; Sparhawk v. Salem, 1 of Brooklyn, 4 N. Y. 195; Duke v. Allen, 30; Randall v. Eastern R Mayor, &c. of Rome, 20 Geo. 635; Corp., 106 Mass. 276; s. c. 8 Am. Larkin v. Saginaw County, 11 Mich. Rep. 326; Hughes v. Baltimore, 88; Detroit v. Beckman, 34 Mich. Taney, 243. But this doctrine does 125; Little Rock v. Willis, 27 Ark. not deprive an individual of remedy 572; Tate v. M. K. & T. R. R. Co., when by reason of the negligent con64 Mo. 149; St. Louis v. Gurno, 12 struction of a public work his property Mo. 414; Griffin v. Mayor, &c. of is injured, or when the necessary New York, 9 N. Y. 456; Mills v. result of its construction is to flood or Brooklyn, 32 N. Y. 489; Hines v. otherwise injure his property in a manLockport, 50 N. Y. 236; Davenport ner that would render a private individv. Stevenson, 34 Iowa, 225; Bennett ual liable. See Van Pelt v. Davenport, v. New Orleans, 14 La. Ann. 120; 20 Am. Rep. 622, and note thereto, Weightman v. Washington, 1 Black, p. 626; Merrifield v. Worcester, 110 39; Western College v. Cleveland, Mass. 216; s. c. 14 Am. Rep. 592; 12 Ohio, N. s. 375; Barton v. Syra- Wegmann v. Jefferson, 61 Mo. 55; cuse, 37 Barb. 292; Wheeler v. Cin- Union v. Durkes, 38 N. J. 21. cinnati, 19 Ohio, N. s. 19; s. c. 2 Am. Rep. 368; Hewson v. New Haven, 37 Conn. 475; Murtagh v. St. Louis, 44 Mo. 480; Commissioners v. Duckett, 20 Md. 468; Carr v. Northern Liberties, 35 Penn. St. 324; Grant v. Erie, 69 Penn. St. 420; s. c. 8 Am.

2 Milhau v. Sharp, 15 Barb. 193; New York and Harlaem Railroad Co. v. Mayor, &c. of New York, 1 Hilton, 562; Buell v. Ball, 20 Iowa, 282; Freeport v. Marks, 59 Penn. St. 253. Compare State v. Cincinnati Gas Co., 18 Ohio, N. s. 262.

of money in order to refund to the assessors what had been so paid by them, and that such vote was a legal promise to pay, on which the assessors might maintain action against the town. "The general purpose of this vote," it was said, "was just and wise. The inhabitants, finding that three of their townsmen, who had been elected by themselves to an office, which they could not, without incurring a penalty, refuse to accept, had innocently and inadvertently committed an error which, in strictness of law, annulled their proceedings, and exposed them to a loss perhaps to the whole extent of their property, if all the inhabitants individually should avail themselves of their strict legal rights, finding also that the treasury of the town had been supplied by the very money which these unfortunate individuals were obliged to refund from their own estates, and that, so far as the town tax went, the very persons who had rigorously exacted it from the assessors, or who were about to do it, had themselves shared in due proportion the benefits and use of the money which had been paid into the treasury, in the shape of schools, highways, and various other objects which the necessities of a municipal institution call for,- concluded to reassess the tax, and to provide for its assessment in a manner which would have produced perfect justice to every individual of the corporation, and would have protected the assessors from the effects of their inadvertence in the assessment which was found to be invalid. The inhabitants of the town had a perfect right to make this reassessment, if they had a right to raise the money originally. The necessary supplies to the treasury of a town cannot be intercepted, because of an inequality in the mode of apportioning the sum upon the individuals. Debts must be incurred, duties must be performed, by every town; *the [* 210] safety of each individual depends upon the execution of the corporate duties and trusts. There is and must be an inherent power in every town to bring the money necessary for the purposes of its creation into the treasury; and if its course is obstructed by the ignorance or mistakes of its agents, they may proceed to enforce the end and object by correcting the means; and whether this be done by resorting to their original power of voting to raise money a second time for the same purposes, or by directing to reassess the sum before raised by vote, is immaterial; perhaps the latter mode is best, at least it is equally good." 1

1 Per Parker, Ch. J., in Nelson v. v. Windham, 13 Me. 74; Fuller v. Milford, 7 Pick. 23. See also Baker Groton, 11 Gray, 340; Board of

It has also been held competent for a town to appropriate money to indemnify the school committee for expenses incurred in defending an action for an alleged libel contained in a report made by them in good faith, and in which action judgment had been rendered in their favor. And although it should appear that the officer had exceeded his legal right and authority, yet if he has acted in good faith in an attempt to perform his duty, the town has the right to adopt his act and to bind itself to indemnify And perhaps the legislature may even have power