dinary tests for determining the validity of laws.984 As a rule, no general principles can be laid down which can be universally invoked for the determination of the legality of legislative authority for this particular purpose. It might be said, however, that the construction of a sewer involves the expenditure of public moneys raised through taxation of private property. Whereever this condition exists, the courts are conservative in construing legislation. Powers will not be granted ordinarily by implication unless the intent appears beyond question.985 Expenditures even for such a necessary purpose as the construction of sewers are not permitted when their legality is in doubt as violating laws regulating the levy of taxes, the borrowing of moneys by public corporations or the disbursing of public funds.986 The grant of the express power to construct sewers carries with it by implication the right to purchase property 987 or condemn landss necessary for use. art. 9, § 7, of the Mo. Const. provid. ing for the classification of cities. This case also holds that the act is not in violation of Const. art. 4, § 53, forbidding the passage of local or special laws "Incorporating cities, towns or villages or changing their charters." See, also, Rutherford v. Hamilton, 97 Mo. 543. Independent School Dist. v. City of Burlington, 60 Iowa, 500; Rutherford v. Heddens, 82 Mo. 388; Vreeland v. Jersey City, 54 N. J. Law, 49, 22 Atl. 1052; Tyler v. City of Plainfield, 54 N. J. Law, 529, 24 Atl. 494; Brown's Estate v. Town of Union, 62 N. J. Law, 142, 40 Atl. 632. The word "town" is used in its broad sense embracing the whole range of municipal laws. 984 Thomas v. Gain, 35 Mich. 155. 985 Hungerford v. City of Hartford, 39 Conn. 279. City of New York, 1 Denio (N. Y.) 595; In re Long, 58 Hun, 609, 12 N. Y. Supp. 230. 988 McDaniel v. City of Columbus, 91 Ga. 462; Hildreth v. City of Lowell, 77 Mass. (11 Gray) 345; In re Kingman, 153 Mass. 566, 12 L. R. A. 417. Vreeland v. Jersey City, 54 N. J. Law, 49. "The subject embraced in this legislation is the drainage of a neighborhood as distinguished from local sewerage, designed principally for the benefit of lands abutting on a sewer. The means by which the object is to be accomplished is the construction of a main sewer 'from such neighborhood to tide water, or other waters into which the sewerage of such city is emptied.' The charter of Jersey City provides that a sewer shall be constructed on the application of the owners of 986 Town of Leominster v. Con- one-third of the property fronting ant, 139 Mass. 384. 987 Freburg v. City of Davenport, 63 Iowa, 119; Page v. O'Toole, 144 Mass. 303, 10 N. E. 851; Wilson v. on the improvement. The act of 1885 provides that any fifty owners of lands lying within the neighborhood proposed to be drained $439. Nature of the power. The power in common with many others granted public corporations is or may be discretionary in its character and, therefore, not ordinarily subject to review by the courts unless, in its exercise, the public authorities have acted fraudulently or oppressively or there is a manifest abuse of discretion in other respects. The power must be exercised by the body to whom it is expressly granted,990 and by this body only within the limits 989 may make the application and that thereupon the municipal authorities 'shall proceed to act.' The city charter in this respect must yield. The application presented to the board purported to be signed by more than fifty owners of lands proposed to be drained and sets out all the jurisdictional facts required by the statute. It was sufficient to confer jurisdiction on the board. The act purports also to deal with the entire subject of municipal action in this respect and hence operates to supersede special provisions in city charters on the same subject, except so far as their provisions are retained or adopted by the act." 989 Shumate v. Heman, 181 U. S. 402; Drexel v. Town of Lake, 127 Ill. 54; Ryder's Estate v. City of Alton, 175 Ill. 94; City of Topeka v. Huntoon, 46 Kan. 634, 26 Pac. 488. The decision by a city council as to sewer districts under authority of law is conclusive. See, also, Grimmell v. City of Des Moines, 57 Iowa, 144. City of Detroit v. Corey, 9 Mich. 165; Miller V. Anheuser, 2 Mo. App. 168. The necessity for a sewer is conclusively established by a city council when it passes an ordinance directing its construction. City of St. Joseph v. Farrell, 106 Mo. 437; Stoudinger C. City of Newark, 28 N. J. Eq. (1 Stew.) 187, 446. In this case it is stated that "When by legislative grant the location and construction of sewers is committed to the judgment of municipal authorities, the acts of such authorities are not subject to judicial revision so long as they keep within their powers and do not abuse them." Lynch v. City of New York, 76 N. Y. 60; Jones v. Holzapfel, 11 Okl. 405, 68 Pac. 511. The power to establish a sewer carries with it the implied power of making a contract for its construction. Carr v. Northern Liberties, 35 Pa. 324, 78 Am. Dec. 342; Horton v. City of Nashville; 72 Tenn. (4 Lea) 39. 990 Pine Bluff Water & Light Co.. v. Sewer Dist. No. 1, 56 Ark. 205; Cochran v. Village of Park Ridge (Ill.) 27 N. E. 939; Lingle v. City of Chicago, 172 Ill. 170; Franklin Wharf Co. v. City of Portland, 67 Me. 46. The power should be exercised in such a manner as to avoid creating a nuisance. Dorey v. City of Boston, 146 Mass. 336, 15 N. E. 897; Collins v. City of Holyoke, 146 Mass. 298, 15 N. E. 908. The authority as granted cannot be delegated to others but agents may be employed. Downie v. Freeholders of Passaic County, 54 N. J. Law, 223, 23 Atl. 954; In re Wheelock, 51 Hun, 640, 3 N. Y. Supp. 890. In: of its jurisdiction." The fundamental principle cannot be ignored that public corporations in their manifold relations and with their many officials are agents of the sovereign with limited and restricted powers, capable of exercising only those expressly granted and in the manner particularly prescribed by law.992 re New York Institution for Deaf & Dumb, 55 Hun, 606, 7 N. Y. Supp. 860; In re Taxpayers & Freeholders of Plattsburgh, 27 App. Div. 353, 50 N. Y. Supp. 356; Lutes v. Briggs, 64 N. Y. 404. 991 Sault Ste. Marie Highway Com'rs v. Van Dusan, 40 Mich. 429; Farlin v. Hill, 27 Mont. 27, 69 Pac. 237. Land not within the limits of a city cannot be assessed to pay in part the cost of a sewer constructed by the city in front of such land. The court say: "From the way that the lots are numbered it is further somewhat apparent that the owner platted the ground in such a way that if he or any other owner ever cared to add the rest of the lode claim surface to the territory of the city, it might conveniently be done. The tract is not part of the city and the owner has no more right to privileges such as an owner of city lots would have, than a lode claim owner has whose property is opposite to the city and bounding on an outside boundary street. Thus having no such privileges, he is under no obligation to pay taxes or special assessments to the city. The city having accepted the plat with its eyes open to see and read what the plat and certificates plainly showed and declared, all of which it solemnly accepted, it cannot now exercise dominion over what was not turned over to the control of the city." 992 Cone v. City of Hartford, 28 (Conn. 363; White v. City of Sag inaw, 67 Mich. 33, 34 N. W. 255. "The second section of the statute under which the proceedings were taken expressly requires that the necessity for the construction of the sewer in question shall first be determined by the common council of the city. In this case the record does not disclose that any such determination was ever made. They determined to make it, it is true, but it does not appear there was any necessity for it and this lies at the foundation of the entire proceeding. The necessity must exist in every case and must be found by the legislature or the common council. The power to determine when a special assessment shall be made and on what basis it shall be apportioned is confided to the legislature alone. It may determine the extent of territory which may be assessed for the improvement and may direct that the whole or any part thereof may be assessed upon the property in that territory. It will be discovered by the record that the first assessment was upon the basis that the property benefited should pay half the expense of construction. The city did pay its half and several of the parties upon the roll paid their assessments in full and then that as sessment was declared invalid by the council and the present assessment is ordered and made upon the basis that the property benefited should pay two-thirds of the expenses of the improvement, and ** * § 440. Proceedings for construction. The required proceedings for the legal construction of a sewer or a sewerage system must be taken, and, as a rule, should be had separate and distinct from those having for their purpose the carrying out of other governmental or delegated powers.993 * * * that those who had paid the full all such streets 993 Village of Hinsdale v. Shan- and to construct all such main and lateral Public officials when required by law must, in the manner prescribed, report their action,994 and the damages to private property, if any, occasioned by the construction of the improvement, must be paid.995 But it has been held that the use of a street for the construction of a drain or open ditch for the purpose of improving its condition is a proper use of such street or high by the establishment of a street or highway. The inhabitants of the city are entitled to a hearing on each of such public improvements and neither can be included in the other. Grading and graveling may be a necessary improvement, while the construction of a sewer may not." Vreeland v. Jersey City, 54 N. J. Law, 49, 22 Atl. 1052. Where it is necessary to exercise the pow. er of eminent domain in the construction of a sewer, this should be done under those provisions relating to its exercise by a city in general. 994 Mills on Charles River v. Mills on Mill Creek, 24 Mass. (7 Pick.) 207. we have no doubt that it is as competent to construct drains and sewers below, as it is upon the surface of the ground. On ordinary country roads, the gutters upon their sides are usually deemed sufficient to carry off the water and filth upon them. In populous places, however, where they accumulate in greater quantities, or where it may be necessary for the public to use, for passing and other proper purposes, every part of the highway, it is frequently requisite to make the drains of the highway beneath its surface, and the safety as well as the commodiousness of the public travel, and the healthfulness of the people in its vicinity may also require it. It is no objection therefore, to a sewer in a highway, that it is made beneath the surface of the ground, if the 995 Cone v. City of Hartford, 28 Conn. 363. "There cannot be a doubt that, in the laying out and establishment of a highway, the right of repairing and maintaining, circumstances render it proper so as well as of originally construct- to construct it." Haskell v. City ing it, is embraced, and that, there- of New Bedford, 108 Mass. 208; fore, when damages are assessed to Field v. Town of West Orange (N. a person for laying out and con- J. Eq.) 2 Atl. 236; In re Ashburton structing a road upon his land, Sewer, 51 Hun, 644, 4 N. Y. Supp. those damages include compensa- 301. Abutting property owners not tion as well for the repairing of entitled to more than nominal such road as its original construc- damages for the additional burden tion. Such reparation embraces imposed by reason of placing a sewand extends to the making of such er in a street. Van Brunt v. Town gutters, drains and sewers as are of Flatbush, 128 N. Y. 50, reversnecessary and proper in order to ing 59 Hun, 192, 13 N. Y. Supp. preserve the highway in good con- 545. See Lewis, Em. Dom. §§ 121f dition for the purposes for which it and 127. But see Cummins v. City was made. And, for those purposes, of Seymour, 79 Ind. 491. |