other powers as are absolutely necessary to carry into effect those expressly granted.136 The grant of powers, however, is usually construed strictly.137 The existence, however, of certain public corporations is recognized and the truth that they are organized for certain specific purposes in connection with the sole end and aim of government. The fact and the purpose of existence is, therefore, made the basis by some cases of holding that certain implied powers are possessed by these agencies of government in order that the results for which they were created may not be lessened, lost or destroyed.138 139 (a) When exercised. The power to pass an ordinance depends, therefore, upon the legal capacity of the corporation to deal with the subject or question involved in the ordinance. All legislative action of a municipal corporation originates in the municipal council, and an ordinance or resolution is the visible. manifestation or outward form of such action.1 It is unnecessary here to repeat the general principles which control public corporations including municipal in the exercise of powers relating to the making of contracts,140 the incurring of debts, the issuing of bonds and negotiable securities,142 the collection and disbursement of public moneys,143 the exercise of the police power, the acquirement and control of public property which in 144 136 Littlefield v. State, 42 Neb. 223, 28 L. R. A. 588; Taintor v. Town of Morristown, 33 N. J. Law, 57. The power of making by-laws belongs to a corporation by implication. Farnsworth V. Town Council of Pawtucket, 13 R. I. 83; Town of Sumter v. Deschamps, 4 S. C. (4 Rich.) 297. See, also, §§ 108 et seq., ante. 187 State v. Tryon, 39 Conn. 183; City of Keokuk v. Scroggs, 39 Iowa, 447; Denning v. Yount, 62 Kan. 217. 138 City of Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441; City of Alton v. Aetna Ins. Co., 82 Ill. 45. But acts not fully within the powers conferred on a city by statute are ultra vires. City of Crawfordsville v. Braden, 130 Ind. 149, 14 L. 141 R. A. 268; Champer v. City of Greencastle, 138 Ind. 339, 24 L. R. A. 768; Meyers v. Chicago, R. I. & P. R. Co., 57 Iowa, 555; Burg v. Chicago, R. I. & P. R. Co., 90 Iowa, 106; State v. Robertson, 45 La. Ann. 954; State v. Morris, 47 La. Ann. 1660; People v. Common Council of Detroit, 29 Mich. 108; Drake v. Hudson River R. Co., 7 Barb. (N. Y.) 508; Farnsworth v. Town Council of Pawtucket, 13 R. I. 83. 139 City of St. Louis v. Bell Tel. Co., 96 Mo. 623, 2 L. R. A. 278. 140 See §§ 246-299, ante. 143 See c. VI. Fuller v. Heath, 89 Ill. 296. 144 See §§ 115-139, ante, 32 Am. & cludes its use and disposal,145 and the management and control of public offices, officials and employes.146 All these have been or will be considered fully in the chapters and sections referred to. Additional cases, however, will be found under the appropriate titles in succeeding sections.147 The exercise of many municipal powers, especially those pertaining to local necessities or demands, is left by the state, largely, to the discretion of the subordinate corporation, and this is true whether such powers and duties are legislative or ministerial in their character.148 The making of local improvements belongs to this class, and municipal corporations may exercise or refrain from exercising their granted powers in respect to these without interference.149 The power always exists, Eng. Corp. Cas. notes 354-459; City 145 See post, c. IX. 147 State v. Johnson, 17 Ark. 407. The power granted of the establishing of a tribunal for the trial of contested municipal elections. 148 Union Pac. R. Co. v. City of Cheyenne, 113 U. S. 516; State v. Swearingen, 12 Ga. 23. "These municipal corporations are the germs and minature models of free government; and their internal police and administration should not be interfered with for slight causes nor unless some great right has been withheld or wrong perpetrated," City of Chicago v. McKechney, 91 Ill. App. 442; Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505; Moses v. Risdon, 46 Iowa, 251. "In the absence of actual fraud, courts cannot interfere with the judgment and discretion of city councils in determining what are and what are not suitable rooms for the purposes of the city and its officers." Evansville, I. & C. S. L. R. Co. v. City of Evansville, 15 Ind. 395; Asher v. Hutchinson Water, Light & Power Co., 66 Kan. 496, 71 Pac. 813, 61 L. R. A. 52; Spauld ing v. City of Lowell, 40 Mass. (23 Pick.) 71; City of St. Louis v. Boffinger, 19 Mo. 15; Lincoln St. R. v. City of Lincoln, 61 Neb. 109; Poillon v. City of Brooklyn, 101 N. Y. 132. 149 Goodrich v. City of Chicago, 20 Ill. 445; Sheridan v. Colvin, 78 Ill. 237; City of Richmond v. McGirr, 78 Ind. 192; Kitchel v. Union County Com'rs, 123 Ind. 540; Fulton v. Cummings, 132 Ind. 453; City of Topeka v. Huntoon, 46 Kan. 634; Inhabitants of Melpomene St. v. City of New Orleans, 14 La. Ann. 452. "The city as a corporation has control over the public places and highways within its bounds and it is the province of the corporation and not of a judicial tribunal to determine what improvements shall be made in the streets and canals of the city." Hovey v. Mayo, 43 Me. 322; Farrar v. City of St. Louis, 80 Mo. 379; Teegarden v. City of Racine, 56 Wis. 545; Horton v. City of Nashville, 72 Tenn. (4 Lea) 39. See, also, cases cited note 108, § 513, ante. however, in the judiciary to redress wrongs, compensate injuries sustained and correct mistakes made or done by public corporations even in the exercise of discretionary and legislative powers.1 150 (b) Where found. The power to pass ordinances, except in special and exceptional instances, may be found in the Constitution of the state,151 general or special statutes relating to or granting specific powers or dealing with specific questions152 and, finally, the charter of the particular municipality.153 In this instrument will be found most commonly and frequently the grants of power to the municipal corporation. § 519. The power to pass peace ordinances, so called. A municipal corporation being a petty state and having for its purpose the better government of the people within its boundaries may, in the exercise of its governmental and police powers, pass ordinances defining or establishing certain acts or conditions as offenses against the peace, the good order and the welfare of 150 Union Pac. R. Co. v. City of Cheyenne, 113 U. S. 516. Illegal tax. Dunham v. Village of Hyde Park, 75 Ill. 371; Brush v. City of Carbondale, 78 Ill. 74; Regenstein v. City of Atlanta, 98 Ga. 147; City of Valparaiso v. Gardner, 97 Ind. 1; City of Vincennes v. Citizens' Gaslight Co., 132 Ind. 114, 16 L. R. A. 485; Slack v. Maysville & L. R. Co., 52 Ky. (13 B. Mon.) 1; State v. District Court, 33 Minn. 295; Morse v. City of Westport, 136 Mo. 276; Cape May & S. L. R. Co. v. City of Cape May, 35 N. J. Eq. (8 Stew.) 419; Babcock v. City of Buffalo, 56 N. Y. 268; Sitzinger v. Tamaqua, 187 Pa. 539; Kelley v. City of Milwaukee, 18 Wis. 83. Pieri v. Town of Shieldsboro, 42 Miss. 493, where it is held that municipal authorities cannot through an arbitrary ordinance, destroy private property by force or compel the owner to destroy or remove it. 151 Foster V. Police Com'rs, 102 Cal. 483. Where the power is found in the constitution it obviates all necessity for any other authority. State v. Fourcade, 45 La. Ann. 717; State v. Noyes, 30 N. H. 279; Tanner v. Trustees of Albion, 5 Hill (N. Y.) 121. 152 Crofut v. City of Danbury, 65 Conn. 294. An unauthorized ordinance cannot be made valid by any action of a city. Lane v. City of Concord, 70 N. H. 485, 49 Atl. 687. 153 Culbertson v. The Southern Belle, Newb. Adm. 461, Fed. Cas. No. 3,462; City of El Dorado v. Beardsley, 53 Kan. 363; Remy v. Municipality No. 2, 15 La. Ann. 657; Landis v. Borough of Vineland, 54 N. J. Law, 75, 23 Atl. 357; City Council of Charleston v. Seeba, 4 Strob, (S. C.) 319; Milliken v. City Council of Weatherford, 54 Tex. 388. Disorderly houses. Ex parte Powell, 43 Tex. Cr. R. 391, 66 S. W. 298. Gambling houses, lotteries and pool rooms. City of Janes the community.154 It may establish and enforce, in other words. as it were, a complete criminal code defining and punishing petty offenses. Such power is usually an express one and must be found in some specific provision of the general laws. 155 In common with other ordinances, their legality is determined by the tests to be suggested in the following sections.156 The power to pass them is usually limited by the provision that they must not conflict with general statutes or deal with acts made crimes or misdemeanors by the general laws. 157 § 520. Limitations upon this power. Without now giving the restrictions upon the power to pass or enact ordinances that are found in rules controlling their passage or determining their validity in respect to other matters, the limitations which exist upon the power to pass an ordinance are either express or implied. They may be found either in the instrument, the source of power and authority,158 or in the implied authority of the judicial branch of the sovereign power to pass upon and determine the validity159 of all legislative action, and in ville v. Milwaukee & M. R. Co., 7 Wis. 484; City of Green Bay v. Brauns, 50 Wis. 204. Dis 154 City of Talladega v. Fitzpat rick, 133 Ala. 613, 32 So. 252. turbing a religious assembly. Amboy v. Sleeper, 31 Ill. 499; City of Burlington v. Stockwell, 5 Kan. App. 569, 47 Pac. 988; Kansas City v. White, 69 Mo. 26; Lane v. City of Concord, 70 N. H. 485, 49 Atl. 687; Melick v. Inhabitants of Washington, 47 N. J. Law, 254; Pennsyl vania R. Co. v. Jersey City, 47 N. J. Law, 286; Cox v. Special Sessions, 7 Hun (N. Y.) 214. The power to pass ordinances concerning the health of the city may be delegated by the legislature to the board of health. 155 City of Owensboro v. Sparks, 18 Ky. L. R. 269, 36 S. W. 4; State v. Hammond, 40 Minn. 43; State v. Clay, 118 N. C. 1234, 24 S. E. 492; City of Portland v. Schmidt, 13 Or. 17; Judy v. Lashley, 50 W. Va. 628, 41 S. E. 197, 57 L. R. A. 413; Village of Platteville v. McKernan, 54 Wis. 487. 156 McInerney v. City of Denver, 17 Colo. 302; State v. Kirkley, 29 Md. 85. 157 City of Mobile v. Yuille, 3 Ala. 137; Holt v. City of Birmingham, 111 Ala. 369; Waters v. Leech, 3 Ark. 115; In re Sic, 73 Cal. 142, 14 Pac. 405; Ex parte Kuback, 85 Cal. 274, 9 L. R. A. 482; Phillips v. City of Denver, 19 Colo. 179; Adams v. City of Albany, 29 Ga. 56. But see Polinsky v. People, 11 Hun (N. Y.) 390, and Borough of York v. Forscht, 23 Pa. 391. 158 Huesing v. City of Rock Island, 128 Ill. 465; City of Keokuk v. Scroggs, 39 Iowa, 447. 159 New Orleans M. & C. R. Co. v. Dunn, 51 Ala. 128; State v. Swearingen, 12 Ga. 23; Sherlock v. Village of Winnetka, 59 Ill. 389; exceptional cases to restrain it160 as warranted by constitutional and statutory provisions. Express limitations may not only be found in the charter of the corporation but also in the general statutes dealing with and controlling municipal corporations and perchance in constitutional provisions classifying them or providing for their government.161 The implied power of the courts to determine the legality of legislative action by municipal councils is itself restricted and limited by its character as the judicial arm or branch of the government. A legislative body is one of the three co-ordinate and distinct branches of government and to it is intrusted by the people the sole power of making laws. This involves the exercise of legislative powers which are discretionary in their character and which require for their proper exercise the use of individual judgment. It is a common principle that where an official or an official body is granted powers that partake of these characteristics, that official or official body is free to exercise them without restraint or interference by or an inquiry into of judicial bodies in the absence of fraud or action in excess of authority.10 City of Valparaiso v. Gardner, 97 Ind. 1; Holland v. City of Baltimore, 11 Md. 186; City of Frostburg v. Wineland, 98 Md. 239, 56 Atl. 811; Cape May & S. L. R. Co. v. City of Cape May, 35 N. J. Eq. (8 Stew.) 419; Place v. City of Providence, 12 R. I. 1. 160 Dailey v. City of New Haven, 60 Conn. 314, 14 L. R. A. 69; New Orleans El. R. Co. v. City of New Orleans, 39 La. Ann. 127; Champlin v. City of New York, 3 Paige (N. Y.) 573; Lewis v. Oliver, 4 Abb. Pr. (N. Y.) 121; Whitney v. City of New York, 28 Barb. (N. Y.) 233; People v. Dwyer, 90 N. Y. 402; Smith v. McCarthy, 56 Pa. 359. See, also, cases cited in the following notes. 162 General Assembly is a co-ordinate: branch of the state government and so is the law making power of public municipal corporations within the prescribed limits. It is no more competent for the judiciary to interfere with the legislative acts of the one than the other. But the unconstitutional acts of either may be annulled." Conery v. New Orleans Waterworks Co., 39 La. Ann. 770, 29 Am. & Eng. Corp. Cas. 323; State v.. Cozzens, 42 La. Ann. 1069, 46 Am. & Eng. R. Cas. 168; Coulson v. City of Portland, Deady, 481, Fed. Cas. No. 3,275; New Orleans M. & C. R. Co. v. Dunn. 51 Ala. 128; Ex parte Delaney, 43 Cal. 478; Macon Consol. St. R. C. v. City of Macon, 112 Ga. 782, 38 S. E. 60. "The courts will not readily interfere with the governing authorities of a city in the performance of a discretionary act; it is only where it 'has passed' |