§ 428. The repair of highways. As a general rule, it can be stated that special authority is necessary to enable a public corporation other than the sovereign itself to pave a highway or make upon it improvements of an unusual character;910 this rule, however, does not apply to what can be termed ordinary repairs assuming the authority for the opening of the highway and placing it in its present existing condition. From this time there exists the implied authority and duty of maintenance. 911 The method of making such repairs depends upon local statutes and ordinances applicable.912 § 429. The general improvement of highways. The grant of authority or the existence of the power to open or establish highways, as repeatedly held, carries with it the im N. W. 733; Coggeshall v. City of 910 City of New Haven v. Whitney, 36 Conn. 373. In this case it is held that macadamizing a street is "maintaining" it rather than constructing a public improvement. State v. Corrigan Consol. St. R. Co., 85 Mo. 263; City of Philadelphia v. Dibeler, 147 Pa. 261, 23 Atl. 567. 911 Hart v. Gaven, 12 Cal. 476. By law, the duty of repairing a street may rest upon the abutter. Barton v. McDonald, 81 Cal. 265; Jones v. Town of Marlborough, 70 Conn. 583; Klein v. People, 31 Ill. App. 302. The performance of the duty may be enforced by mandamus and where a discretionary power is given the manner of making the repair cannot be prescribed. State v. Kamman, 151 Ind. 407; City of Covington v. Bishop, 10 Ky. L. R. 939, 11 S. W. 199; Bembe v. Anne Arundel County Com'rs, 94 Md. 330, 51 Atl. 179, 57 L. R. A. 279; Inhabitants of Brookfield v. Reed, 152 Mass. 568. A contract by .town authorities for the perpetual repair of a road held good. Inhabitants of Middlefield v. Church Mills Knitting Co., 160 Mass. 267; State v. Vice, 71 Miss. 912, 15 So. 129. McDonough v. Virginia City, 6 Nev. 90. The grant of the power to open streets, improve them and keep sidewalks in repair does not impose upon the municipal authorities the duty of keeping the streets in repair. Inhabitants of Lodi v. State, 53 N. J. Law, 259, 21 Atl. 457; People v. City of Brooklyn, 21 Barb. (N. Y.) 484; Garlinghouse v. Jacobs, 29 N. Y. 297. No duty attaches for the repair of highways until funds have been provided for that purpose by the public authorities. Ivory V. Town of Deerpark, 116 N. Y. 476; In re Lehigh Valley Coal Co., 164 Pa. 44; Shoolored v. Corporation of Charleston, 2 Bay (S. C.) 63; Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Western Wheeled Scraper Co. v. Chippewa County, 102 Wis. 614, 78 N. W. 764. Under the grant of a power to keep in repair a highway, the purchase of a rock crusher for such purpose is authorized. 912 City of Baltimore v. Scharf, 54 plied power to make such ordinary repairs and improvements as are necessary to maintain them in that ccndition necessary to effect the original purpose of their establishment.913 This does not, however, carry with it the implied power of making extraordinary repairs or those of a great degree of permanence.1 The Md. 499; Borough of McKeesport v. McKeesport Pass R. Co., 158 Pa. 447. 913 Allen County Com'rs v. Silvers, 22 Ind. 491; State v. City of Neodesha, 3 Kan. App. 319, 45 Pac. 122. "In accordance with the provisions of the statute relating to cities of the third class the mayor and council passed an ordinance providing for the construction of sidewalks and street crossings along and over certain streets in the city giving the dimensions of the walks, the material that the same were to be composed of, and defining the duties of the street commissioner in relation to the building the same, and requiring him to notify the owners or occupants of abutting lots of the provisions of the ordinance, and to notify them to build the same within a certain period and in case the owners or occupants of abutting lots neglected or refused to construct the walks within twenty days after the notice, then the street commissioner to build said walk or cause the same to be built and report the cost thereof to the council for assessment. The mayor and council also passed an ordinance ordering the building of certain sidewalks and street crossings in accordance with the former ordinances relating to the construction of walks and crossings. It is not claimed by the plaintiff that the mayor and council were not authorized to build sidewalks and street crossings in the city, but that the indebtedness of the city had al ready reached the limits to which the mayor and council could contract and they were not authorized to build sidewalks and street crossings and issue the warrants of the city to pay for the same out of the current fund of the city. The mayor and council are the only competent authority to determine what sidewalks, street crossings, bridges, and other street improvements are necessary for the safety,. security and convenience of the public and, when they have determined what improvements are necessary, their determination is final and cannot be inquired into in a proceeding to enjoin the construction of the same. It is not necessary for them to submit the question of street improvements to a vote of the people of the city, but they are authorized to make the improvements and create the indebtedness of the city for the payment of the same." Wabash R. Co. v. City of Defiance, 52 Ohio. St. 262, 40 N. E. 89; Withers v. Road Com'rs of Claremont County, 3 Brev. (S. C.) 83. Public authorities have no power to improve or repair highways not legally laid out. 914 Demartini v. City & County of San Francisco, 107 Cal. 402; People v. Fort St. & E. R. Co., 41 Mich. 413; State v. Ramsey County Dist. Ct., 44 Minn. 244; State v. Judges of Dist. Ct., 51 Minn. 539, 53 N. W. 800, 55 N. W. 122. The permanent grade of a street should be established before permanent improvements which are a charge against property owners can be constructed. cost of these improvements is usually paid not from the general revenues but by the making of a local assessment upon property specially benefited without regard to the measure for such benefit in determining the liability of the property."15 The power to make extraordinary or unusual improvements, as they may be termed, aside from those already considered, must be specially given16 and exercised only by the authority possess "We are satisfied that it was the intention of the legislature to require the permanent grade to be established before any proceedings for the permanent improvement of a street at the expense of the real property shall be begun. * * It would be strange if the city could was San Francisco, 75 Cal. 534, 17 Pac. 678. Property of the Federal government may be exempted from special assessment. English v. City of Danville, 150 Ill. 92, 36 N. E. 994; Halsey v. Town of Lake View, 188 Ill. 540. Thompson v. City of Highland Park, 187 Ill. 265. Under grant of a general power, a street may be improved by a "parking" down its center to be seeded with grass and planted with trees. Gibson V. O'Brien, 9 Ky. L. R. 639, 6 S. W. 28; O'Brien v. Markland, 9 Ky. L. R. 773, 6 S. W. 713; Fox v. Middlesborough Town Co., 16 Ky. L. R. 455, 28 S. W. 776; Huelfeld v. City of Covington, 22 Ky. L. R. 1188, 60 S. W. 296. City of Springfield v. Harris, 107 Mass. 532. A special contract with property owners for the payment of a portion of the cost of a local improvement held enforceable. Second Nat. Bank v. City of Lansing, 25 Mich. 207; Lincoln St. R. Co. v. City of Lincoln (Neb.) 84 N. W. 802; State v. City of Newark, 49 N. J. Law, 239, 12 Atl. 770; Borough of Greensburg v. Young, 53 Pa. 280; Green v. Ward, 82 Va. 324. 916 Blanchard v. Beideman, 18 Cal. 261; Banaz v. Smith, 133 Cal. 102, 65 Pac. 309; Murphy v. City of Peoria, 119 Ill. 509, 9 N. E. 895. The grading, draining and sodding of a 915 Onderdonk v. City & County of street may be authorized under the 917 918 ing it, and in the precise manner indicated by its terms." A general grant of power, however, always carries with it the same ordinance. Starr v. City of Burlington, 45 Iowa, 87; Gilmore v. Norton, 10 Kan. 491. Such legislation must not conflict with any provisions of the state constitution. Dobbins v. Long Branch Police Com'rs, 59 N. J. Law, 146, 36 Atl. 482. Public Laws, 1892, p. 146, held a special law and therefore, in contravention of constitution, art. 4, § 7, and also as holding acts of N. J. March 30th, 1887, violative of the same section, see Township of Lodi v. State, 51 N. J. Law, 402, 18 Atl. 749, 6 L. R. A. 56; In re Petition of Lehigh Val. Coal Co., 14 Pa. Co. Ct. R. 621; City of Reading v. Keppleman, 61 Pa. 233, construing charter provisions of the City of Reading; Wilson v. Allegheny City, 79 Pa. 272. 917 McCain v. State, 62 Ala. 138; Santa Cruz Rock Pavement Co. v. Heaton, 105 Cal. 162; Bolton v. Gilleran, 105 Cal. 244; Bloomington Cemetery Ass'n v. People, 139 Ill. 16, 28 N. E. 1076; Ralston v. Beall (Ind.) 30 N. E. 1095; Millisor v. Wagner, 133 Ind. 400, 32 N. E. 927; Lewis v. Albertson, 23 Ind. App. 147, 53 N. E. 1071. It is not necessary that a city council should act in regard to the improvement of a street at a regular meeting. of Public Works, 99 Mich. 392; McNeal Pipe & Foundry Co. v. Lippincott, 57 N. J. Law, 540, 31 Atl. 399; Union Tp. Committee v. Rader, 41 N. J. Law, 618; Matawan Tp. Com'rs v. Horner, 48 N. J. Law, 441. See People v. Queens County Sup'rs, 62 Hun, 620, 16 N. Y. Supp. 705, in respect to the right of county supervisors to direct the improvement of highways located within the limits of an incorporated village and forming some of its streets. Lewis v. Laylin, 46 Ohio St. 663; City of Waco v. Prather, 90 Tex. 80, 37 S. W. 312. 918 Irwin v. City of Mobile, 57 Ala. 6; San Jose Imp. Co. v. Auzerais, 106 Cal. 498, 39 Pac. 859; Harney v. Heller, 47 Cal. 15. The proceedings for the improvement of a street need not be more certain or precise than the law authorizing such improvement. People v. McCain, 50 Cal. 210; City of Stockton v. Whitmore, 50 Cal. 554; Spaulding v. North San Francisco H. & R. Ass'n, 87 Cal. 40. A property owner may be estopped by his conduct to oppose the making of a public improvement when the provisions of law have not been strictly followed. City of Indianapolis v. Imberry, 17 Ind. 175. Inhabitants of Melpomene v. City of New Orleans, 14 La. Ann. 452. A city as a municipal corporation has exclusive control over the public places and highways within its boundaries and has, therefore, the power to determine the necessity for and the kind of street improvements. Howard v. First Independent Church, 18 Md. 451; Common Council of Grand Rapids v. Board key, 29 Ind. App. 55, 63 N. E. 864; City of Delphi v. Evans, 36 Ind. 90, construing charter provisions of the city of Delphi, Ind., relative to street improvements. Anderson v. Bement, 13 Ind. App. 248, 41 N. E. 547. A road may be improved by the removal of gravel from one place to another if for the making of an ordinary repair. Warren County Com'rs v. Man right of exercise within certain discretionary limits.919 The cost of general improvement or maintenance may be contributed by different towns and cities in such proportion as may be determined upon either by agreement or law,920 when used for the ac City of New Albany v. Endres, 143 Ind. 192. A nunc pro tunc entry correcting proceedings may be made which will bind a subsequent purchaser of property. within their limits, this partakes of a discretionary nature and in its exercise, the corporate authorities cannot be controlled by the courts. The determination of the necessity, kind or manner of making a par ticular improvement by such authorities is conclusive. City of Augusta v. Taylor, 23 Ky. L. R. 1647, 65 S. W. 837; Shimmons v. City of Saginaw, 104 Mich. 511, Joyes v. Shadburn, 11 Ky. L. R. 892, 13 S. W. 361; Sullivan v. City of Fall River, 144 Mass. 579; Hoyt v. City of East Saginaw, 19 Mich. 39; Sheehan v. Gleeson, 46 Mo. 100. In an ordinance providing for the improvement of a street, a substan- 62 N. W. 725; Seaboard Nat. Bank tial compliance with the requirements of law is sufficient although it may lack precision. Leach v. Cargill, 60 Mo. 316. Where the law requires that the abutting property owner shall be given an opportunity to construct the work, a failure to do this will defeat an action on a special tax bill where the improvement was constructed by the city authorities. Village of Tonawanda v. Price, 171 N. Y. 415, reversing 57 App. Div. 635, 68 N. Y. Supp. 1150; Welker v. Potter, 18 Ohio St. 85; Clinton v. City of Portland, 26 Or. 410, 38 Pac. 407. 919 Bacon v. City of Savannah, 86 Ga. 301. Different provisions under the same statute under the grant of a general power to improve may be construed in a different manner. Murphy v. City of Peoria, 119 Ill. 509. A portion of a street may be sodded and a portion graded under the grant of a general power to improve. Cason v. City of Lebanon, 153 Ind. 567. Where a general power of control, regulation and improvement is given to municipal corporations over streets and alleys v. Woesten, 147 Mo. 467, 48 S. W. 939, 48 L. R. A. 279; Mendham v. Losey, 2 N. J. Law (1 Pen.) 327; Day v. Public Road Board, 49 N. J. Law, 180; In re Dugro, 50 N. Y. 513. Such discretionary powers will not be revoked by implication or legislation containing words of doubtful inference. Leverich v. City of New York, 66 Barb. (N. Y.) 623; Wabash R. Co. v. City of Defiance, 52 Ohio St. 262, 40 N. E. 89. In the absence of fraud or abuse of discretion, the determination of a municipality of the necessity for a certain street improvement is not subject to review by the courts. Ripka's Appeal, 21 Pa. 55; Hutcheson v. Storrie (Tex. Civ. App.) 48 S. W. 785. The determination in the affirmative that a public necessity exists for the improvement of a street is not subject to judicial review where a general grant of power exists in the city council to improve streets. Buckley v. City of Tacoma, 9 Wash. 253. 920 Langley v. Barnstead, 63 N. H. 246; People v. Flagg, 46 N. Y. 401; |