secs. 1000-1003. General liability of municipal corporations proper secs. 967, 1017–1031. Liability of author of defect or obstruction — secs. Defects therein caused by railroads sec. 1037. secs. 1038-1045. 27. Streets. - Drains and sewers 1046-1051. liability in respect to secs. Actions on Express Contracts. - § 935 (749). General Liability ex Contractu; Ultra Vires.- · Municipal corporations are subject to be sued upon contracts and in tort. In a previous chapter we have considered at length the authority of such corporations to make contracts, the mode of exercising and the effect of transcending the power.1 This leaves but little to add in 1 Ante, chap. xiv. on Contracts, sec. 442 et seq. See, also, ante, sec. 831, note; People v. Batchellor, 53 N. Y. 128 (1873); 1. c. Albany Law Journal, 120; s. c. 13 Am. Rep. 480; Weismer v. Douglas, 64 N. Y. 91 (1876); Winslow v. Perquimans Co. Comm'rs, 64 N. C. 218 (1870). Assignability of executory contracts with municipality. Devlin v. New York, 63 N. Y. 8 (1875); ante, sec. 443. A municipal corporation, in protecting its property, in collecting its debts, and generally in transacting business of a private character, may, when not expressly prohibited, or when not otherwise provided by statute, avail itself of all the rights and remedies afforded to an individual. Buffalo v. Bettinger, 76 N. Y. 393; Oliver v. Worcester, 102 Mass. 489; Detroit v. Corey, 9 Mich. 165; Augusta v. Leadbetter, 16 Me. 45; Orleans Co. Sup. v. Bowen, 4 Lans. (N. Y.) 24; First Nat. Bank of Charlotte v. Nat. Exch. Bank of Baltimore, 92 U. S. 122. "A municipal corporation, like an individual, under the limitations involved in its constitution and organization, may have recourse to the courts of the coun. try to enforce rights and redress wrongs. Ottawa Dist. Council v. Low, 6 Can. Q. B. o. s. 546. Thus one municipal corporation may sue another. Huron Dist. Council v. London Dist. Ct., 4 Up. Can. Q. B. 302. So, also, a municipal corporation may be sued for a breach of contract, and in certain cases for wrongful acts not arising out of contract. Thus a municipal corporation may be sued for negligence in the construction of a sewer, malfeasance in illegally obstructing a drain or watercourse, so as to injure the owner or owners of land adjoining, or for wrongfully diverting a stream of water on plaintiff's land. [Post, secs. 1038-1051.] Farrell v. London, 12 Up. Can. Q. B. 343; Reeves v. Toronto, 21 Up. Can. Q. B. 157; Perdue v. Chinguacousy, 25 Up. Can. Q. B. 61 ; Rowe v. Rochester, 29 Up. Can. Q. B. 590; Stonehouse v. Enniskillen, 32 Up. Can. Q. B. 562; Darby v. Crowland, 38 Up. Can. Q. B. 338; Bathurst v. Macpherson, L. R. 4 App. Cas. 256. To support an action against a municipal corporation of the nature suggested, although it is not necessary to show any authority under seal to the person or persons who, under this place respecting their liability in actions ex contractu. Upon an authorized contract- that is, upon a contract within the scope of the chartered powers of the corporation and duly made by the proper officers or agents they are liable in the same manner and to the same extent as private corporations or natural persons. But upon a contract which is ultra vires in the true sense of that expression, that is, upon a contract relating to matters wholly outside of the chartered powers of the corporation, there is no liability upon the contract; and the corporation is not estopped to set up the defence.1 the supposed instructions of the corporation, actually did the wrongful act, enough must be shown to connect the corporation as a body with the doing of the act. Farrell v. London, 12 Up. Can. Q. B. 343; Lewis v. Toronto, 39 Up. Can. Q. B. 343." Harr. Munic. Man. (5th ed.) p. 11. A department of the city government of New York cannot be sued. Swift v. New York, 83 N. Y. 528. Post, sec. 974, note. A municipal corporation created by a State may, within the State which created it, be sued in the Federal courts by a citizen of another State. No State statute limiting the jurisdiction of suits against counties can defeat the jurisdiction given to the Federal courts by the Consitution. Cowles v. Mercer County, 7 Wall. 118; Louisville, C. & C. R. R. Co. v. Letson, 2 How. (U. S.) 497; Vincent v. Lincoln County, 30 Fed. Rep. 749. Federal courts have jurisdiction over a suit brought by an assignee of a municipal bond which is in form a simple acknowledgment of indebtedness and an unconditional promise to pay a certain sum at a certain time. Porter v. Janesville, 3 Fed. Rep. 617. No recovery can be had upon municipal bonds transferred by citizens of the State where the municipality is situated, to a citizen of another State, for the sole purpose of giving jurisdiction to the courts of the United States. New Providence v. Halsey, 117 U. S. 336. So also of coupons. Farmington v. Pillsbury, 114 U. S. 138. See Index, titles Contracts, Federal Courts. 1 Ante, sec. 457 and cases cited. Fur ther, as to ultra vires, see post, secs. 968, 969, 970, also Buffett v. Troy & B. R. R. Co., 40 N. Y. 168, and note; Griggs v. Foote, 4 Allen (Mass.), 195; Pearce v. Madison & I. R. R. Co., 21 How. 441 (1858); Cheeney v. Brookfield, 60 Mo. 53 (1875); Moore v. New York, 73 N. Y. 238, approving text. The subject is well examined and the different senses in which the term ultra vires is used is stated by Sawyer, C. J., in the Miners' Ditch Company v. Zellerbach, 37 Cal. 543 (1869). Where the corporation receives and retains the consideration of an ultra vires contract, it may be liable upon an implied assumpsit in respect of such consideration. See chapter on Contracts, ante. Louisiana v. Wood, 5 Dillon, 122, affirmed 102 U. S. 294 (1880); s. c. 12 Cent. L. J. 13; s. P. Gause v. Clarksville, 5 Dillon, 165 (1879); Union Depot Co. v. St. Louis, 76 Mo. 393; Montgomery v. Montgomery Water Works, 79 Ala. 233; Same v. Same, 77 Ala. 248, where a city was held liable for water received and used by it, under a contract which was ultra vires for being made for twenty-four years, when its charter gave it power to contract for one year only. Ante, chapter on Contracts; infra, secs. 938, 969. A useful article on ultra vires, or how far corporations are liable for acts not authorized by their charters, will be found in 5 American Law Review (Jan., 1871), 272, in the form of a note to the opinion of Jervis, C. J., in the East Anglian Railways Co. v. the Eastern Counties Ry. Co., 11 C. B. 775, 21 L. J. (N. s.) C. P. 23, 16 Jur. 249, selected because "one of the earliest and most constantly cited of the many cases on the subject, and, after being much criticised, has been followed in the latest English adjudications." Post, secs. 969, 973 a. As to effect of having notice. Contract Corp., In re Claim of Ebbw Vale Co., L. R. 8 Eq. C. 14; 5 Am. L. Rev. 283, note; Estoppel. Ib. 275, and cases cited; Bradley v. Ballard, 55 Ill. 413, 420; East Nor, as we have before stated, is it bound by contracts within the scope of its chartered powers, if made by officers or agents not thereunto authorized.1 § 936. Ultra Vires as a Defence. When a corporation is created by public statute for definite and limited objects, to which its funds are to be applied, a contract which is entirely unconnected with those purposes, or which on its face will cause an illegal or wrongful application of its funds or an application to other objects, is ultra vires and void. The question whether a particular contract is binding on a municipal or public corporation or not is to be tested by determining whether, on the true construction of the charter and the legislation applicable thereto, it relates to matters within the corporate powers and duties. When an act in its external aspect is within the general powers of the corporation, and is only unauthorized because it is done with a secret, unauthorized intent, the defence of ultra vires will not prevail against a stranger who, in good faith, dealt with it without notice of such intent.2 A municipal corporation, as against persons who have acted in good faith and parted with value for its benefit, cannot, unless by virtue of some statutory provision, set up mere irregularities in the exercise of power conferred; as, for example, its failure to make publication in all of the required newspapers of a resolution involving the expenditure of moneys. Such failure might have the effect to invalidate a local assessment upon the abutter, this being a matter in invitum; but as regards a bona fide contractor with the city, who had expended money for its benefit in respect of a matter within the scope of its general powers, the St. Louis v. East St. Louis Gas L. & C. Co., 98 Ill. 415; Broom Commentaries Com. Law, 568. Legislature within constitutional limits may ratify the ultra vires contracts of a municipal corporation. Ante, secs. 79, 544; Index, tit. Curative Acts. 1 Ante, chap. xiv. secs. 447, 457, 531, 553. The city council of a city, authorized to borrow money and issue its bonds therefor, ordered its officers to insert on the face of certain bonds the consideration; this the officers failed to do; and it was held that the city was responsible for the acts and omissions of its officers in this respect, and was bound to pay, the court regarding the directions to the officers not as a limitation on their powers, but in the nature of private instructions. De Voss v. Richmond, 18 Gratt. 338 (1868). The opinion of Joynes, J., in this case, treats the power of the corporation to borrow money as one of its private and not public or governmental powers. In a case in the Supreme Court of the United States, where a town sought to have bonds adjudged to be invalid, it was held that a previous decree declaring them valid, entered upon the written consent of the mayor to that effect, the decree not being an adjudication of the question, did not estop the town from denying their validity. Kelley v. Milan, 127 U. S. 139, affirming s. c. 21 Fed. Rep. 842. 25 Am. L. Rev. (Jan. 1871) 272, which sums up the result of the English cases to that date substantially in the language of the text. contract would not be ultra vires in the true sense of that term; and the city would be estopped to set up as a defence its own irregularities in the exercise of a power clearly granted to it.1 A distinction which has often been overlooked, exists for some purposes and to some extent, between acts or contracts simply ultra vires and those which are illegal because made in violation of a positive provision of a penal statute. Where license moneys were collected from the sale of liquors, which by statute were to be paid into the common-school fund of the county, and the county treasurer brought an action against the city to recover the amount thus collected by the city, it was held that the city, having collected the money, could not set up the defence of illegality." § 937. Statute may require Presentation or Demand before Suit. - In furtherance of a public policy to prevent needless litigation, and to save unnecessary expenses and costs, by affording an opportunity amicably to adjust all claims against municipal corporations of every nature before suit is brought, it is provided in the charters of such corporations that no action shall be maintained upon any claim or demand until the claimant shall first have presented his claim or demand to the common council for allowance. In other charters it is provided that no action on a contract, obligation, or liability shall be commenced except within one year or other short limitation period after the cause of action shall have accrued.1 These provisions have been held to be inapplicable to actions for personal torts,5 yet a similar charter provision with the addition of the word (claim or 1 Moore v. New York, 73 N. Y. 238 (1878). Allen, J., clearly draws the distinction between a total want of power and mere irregularities in the exercise of powers conferred. Ib. Wade v. Brantford, 19 Up. Can. Q. B. 207. As to actions of implied assumpsit where the contract is ultra vires, see infra, sec. 938, and cases cited. Howell v. Buffalo, 15 N. Y. 512; Taylor v. New York, 82 N. Y. 10 (wherein also the right of a city to set off a debt or demand in an action for services rendered and materials furnished was upheld by Folger, C. J.). The neglect of the council to act upon a claim within the time limited in the charter is equivalent to a refusal to allow it. Fleming v. Appleton, 55 Wis. 90. 4 McGaffin v. Cohoes, 74 N. Y. 387. 5 Cases, notes 3 and 4 supra; Nance v. Falls City, 16 Neb. 85. At common 2 Hastings v. Thorne, 8 Neb. 160; Herman, Treas. v. Crete, 9 Neb. 350; Bulwinkle v. Guttenberg, 17 Wis. 585; White v. Lincoln, 5 Neb. 505; S. P. Oxford Bank v. Wheeler, 72 N. Y. 201; law it is not necessary, as a condition see post, secs. 968-970. 8 Kelly v. Madison, 43 Wis. 688; Cerro Gordo County v. Wright, 50 Iowa, 439; State v. Stout, 7 Neb. 89; State v. Lancaster Co. Bank, 8 Neb. 218; s. P. Alden v. Alameda County, 43 Cal. 270 (1872); precedent to an action against a municipal corporation arising in tort, that the claim shall first be presented to the corporation. Green v. Spencer, 67 Iowa, 410. See ante, sec. 137, and cases. demand) "whatsoever," was held to include torts. The failure to comply with such provision constitutes a good defence. Liability on Implied Contracts. § 938. Implied Assumpsit. — Municipal corporations are liable to actions of implied assumpsit. The principles governing such liability have already been referred to.2 Some additional illustrations of the subject may be here appropriately noticed. Thus, if the officers or agents of a municipal corporation, acting under ordinances which are void, make sales and deeds of corporate property, which pass no right to the purchaser, and can never ripen into a title, and receive the purchase-money, and place the same into the treasury of the corporation, which appropriates the money to its own use, by virtue of ordinances or resolutions legally adopted, the purchaser may recover back the purchase-money, and, the sale being void, he need not make or tender a reconveyance before bringing his action. So a 1 Sheel v. Appleton, 49 Wis. 125; s. c. 3 N. W. Rep. 26; Bradley v. Eau Claire, 56 Wis. 168. As to sufficiency of evidence for misfeasance, see Flanagan v. Wilmington, 4 Houst. 548 (1873). On a claim against a city for damages from a defective highway, the mayor cannot waive the notice in writing required by the Maine statute (1876), chap. xcvii. Veazie v. Rockland, 68 Me. 511. 2 Ante, secs. 459-465; Clark v. Saline County, 7 Neb. 516, approving text; Norway Dist. Tp. v. Clear Lake Dist. Tp., 11 Iowa, 506, and cases cited; Lemington v. Blodgett, 37 Vt. 215; Sangamon Co. Sup. v. Springfield, 63 Ill. 66 (1872); Hathaway v. Cincinnatus, 62 N. Y. 434 (1875); Parsons v. Monmouth, 70 Me. 262, approving text and notes; Nashville v. Toney, 10 Lea, 643; Billings v. Monmouth, 72 Me. 174; Belfast Nat. Bank v. Stockton, 72 Me. 522. The principle stated in the text was settled after great consideration, by the Supreme Court of California, in an interesting series of cases known as the "City Slip Cases." Ante, sec. 578; McCracken v. San Francisco, 16 Cal. 591 (1860); Grogan v. San Francisco, 18 Cal. 590 (1861); Pimental v. San Francisco, 21 Cal. 351 (1863), where Mr. Chief Justice Field reviews the previous cases, and sums up the propositions they establish. See, also, Satterlee v. San Francisco, 23 Cal. 314 (1863); Herzo v. San Francisco, 33 Cal. 134 (1867). In this last case the principle stated above was reaffirmed, but it was held that the city would not be liable simply by reason of the receipt and retention of the money by its officers or the treasurer; that an appropriation by the city is necessary, which could only be by a valid ordinance; and hence where the appropriation was by virtue of an ordinance which was void, because not passed as required by the charter, the city is not liable, even if the money has been applied in payment of its debts. This last decision was participated in by part of the court only, and it is not clear to our mind that it does not lay down too strict a rule as to the necessity of a valid ordinance to constitute such an appropriation or conversion of the money as will make the city liable to refund. See Dill v. Wareham, 7 Met. (Mass.) 438; ante, sec. 459. As to liability of COUNTIES on implied contract. Alton v. Madison County (pauper), 21 Ill. 115 (1859); Wolcott v. Law. rence County (denying such liability under statute of Missouri), 26 Mo. 272; Aldrich v. Londonderry (pauper), 5 Vt. 441; 17 Vt. 79, 447; Lehigh County v. Kleckner (erecting county bridge), 5 Watts & S. (Pa.) 181; post, secs. 961, |