drawn by the Supreme Court in the case cited, between offences essentially criminal, affecting the public at large, and petty offences which at the common law may be proceeded against in a summary manner, which latter would include violations of municipal ordinances concerning local affairs in respect of matters noncriminal in their nature. This distinction would appear to be sound, and the doctrine of the Supreme Court is consonant with the established and traditionary regard of our jurisprudence for the rights of the citizen and for the trial by jury in criminal cases. To this extent only is the doctrine of the Supreme Court in necessary conflict with the judgments of the State courts referred to in the text.1 § 440 (368). Revisory Power of the Superior Courts; Review of Proceedings by Superior Tribunals. With respect to inferior jurisdictions, the right to review their proceedings by the superior tribunals will not be taken away unless the intention offence of a grave character, affecting the public at large, and we are unable to hold that a person charged with having committed it in this District is not entitled to a jury, when put upon nis trial. The jurisdiction of the Police Court, as defined by existing statutes, does not extend to the trial of infamous crimes or offences punishable by imprisonment in the penitentiary. But the argument made in behalf of the government, implies that if Congress should provide the Police Court with a grand jury, and authorize that court to try, without a petit jury, all persons indicted - even for crimes punishable by confinement in the penitentiary such legislation would not be an invasion of the constitutional right of trial by jury, provided the accused, after being tried and sentenced in the Police Court, is given an unobstructed right of appeal to, and trial by jury in, another court to which the case may be taken. We cannot assent to that interpretation of the Constitution. Except in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name, or by or under the authority, of the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court he is put on trial for the offence charged. In such cases a judgment of conviction, not based upon a verdict of guilty by a jury, is void. To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution. When, therefore, the appellant was brought before the Supreme Court of the District, and the fact was disclosed that he had been adjudged guilty of the crime of conspiracy charged in the information in this case, without ever having been tried by a jury, he should have been restored to his liberty." The Supreme Court of the District had previously expressed its doubt upon the question. In re Fry, 3 Mackey, (D. C. 135. See also In re Dana, 7 Benedict, 1. 1 It is certainly very difficult to define in view of the English legislation what are such petty offences. 1 Stephen, Hist. Cr. Law, chap. iv. p. 122, where the history and character of such legislation are given. of the legislature to this effect is expressed with unequivocal clearness. The authorities cited in the note will show the great length to which the courts go in preserving the right to review the proceedings of subordinate tribunals, administered frequently by men without professional or judicial knowledge or experience, A declaration by the statute concerning an inferior tribunal, that its proceedings "shall be final and conclusive," or "without appeal," &c., will not deprive a party of the right of review by certiorari, error, or the proper proceeding. But where it is 1 Rex v. Commissioners, 2 Keeble, 43; Rex v. Moreley, 2 Burr. 1040; Lawton v. Commissioners, 2 Caines (N. Y.), 179, 181; Starr v. Trustees, 6 Wend. (N. Y.) 564; People v. Mayor, 2 Hill (N. Y.), 9; Tierney v. Dodge, 9. Minn. 166; Heath, In re, 3 Hill (N. Y.), 42, 52, and cases cited and reviewed by Cowen, J.; Camden v. Bloch, 65 Ala. 236. A kindred subject is treated in the chapter on Municipal Officers: "Special Tribunal to determine Election Contests for Municipal Offices," ante, sec. 200, and it is there shown that the ordinary constitutional provision that the judicial power shall be vested in certain courts does not disable the legislature from providing that the council of municipal corporations may finally determine the validity of the election of corporation officers. New Orleans v. Morgan, 7 Martin (La.), N. S. 1,9 Martin, repr. 381; State v. Fitzgerald, 44 Mo. 425 (1869); Ewing v. Filley, 43 Pa. St. 384; State v. Johnson, 17 Ark. 407. But the supervisory jurisdiction of the superior courts will not be held to be taken away by mere negative words. Grier v. Shackleford, Const. Rep. 642; State v. Fitzgerald, supra; Commonwealth v. McCloskey, 2 Rawle (Pa.), 369; Strahl, In re, 16 Iowa, 369; State v. Funck, 17 Iowa, 365; Bateman v. Megowan, 1 Met. (Ky.) 533; Wammack v. Holloway, 2 Ala. 31; Hummer v. Hummer, 3 G. Greene (Iowa), 42; State v. Marlow, 15 Ohio St. 114; Attorney General v. Corporation of Poole, 4 Mylne & Cr. 17; Attorney-General v. Aspinall, 2 Mylne & Cr. 613; Parr v. AttorneyGeneral, 8 Cl. & F. 409; Taylor v. Americus, 39 Ga. 59; State v. Kempf, 69 Wis. 470; post, chaps. xx. xxi., xxii.; post, sec. 926. The Supreme Court of Michigan, in reviewing, on certiorari, the legality of a conviction of a defendant in the recorder's court on a complaint for violating a municipal ordinance, speaking of the extent of the revisory power of the superior tribunals, and the nature and purposes of the municipal tribunals, says: The power of reviewing upon certiorari judicial proceedings of inferior tribunals and bodies not according to the course of the common law has been long exercised in England, as well as in this country. The power has been jealously maintained, and has been deemed necessary to prevent oppression. There are certain classes of questions which, by common understanding, from time immemorial belong to the course of the judicial inquiry under the laws of the land. The common law and the various charters and bills of rights recognized and assured the right to such an inquiry; and the Constitution, in apportioning the judicial power, as well as in affirming the immunity of life, liberty, and property, has always been understood to guarantee to each citizen the right to have his title to property, and other legal privileges, determined by the general tribunals of the State. These municipal courts, so far as they act under city by-laws, are not designed to decide between man and man, or to administer general laws. They are ordained to prevent disorder in matters of local convenience, and to regulate the use of public and quasi public easements, so as to prevent confusion. If in exercising this power they can incidentally decide upon the rights of private property so as to determine its enjoyment without review, there would seem to be a practical annihilation of the right to resort to the general tribunals and the common law." declared with respect to a court of general and superior jurisdiction, as of the Supreme Court of New York, that its action (for example, in confirming appraisements for opening streets, or under a railroad act)" shall be final and conclusive upon the parties interested and upon all other persons," the right of appeal, which would otherwise exist, from the decision of such court to a still higher tribunal, as to the Court of Appeals, is destroyed.1 A charter provision to the effect that appeals and writs of error from judgments of the mayor, in cases arising under the charter, should only be allowed in cases where the fine was over five dollars, was considered as evincing the legislative intention that in cases where the fine was under that sum the judgment should be final, and hence a writ of prohibition will not lie to restrain its collection, nor can it be reviewed on certiorari.2 § 441 (369). Same subject. In Virginia it is decided that in a proceeding before the mayor or a justice to impose a penalty on a party for obstructing a street, the mayor or justice cannot, if the defendant bona fide sets up title to the land claimed as a street, inquire into the validity of the claim, the court holding that by the principles of the common law (which are not changed by the statutes), a bona fide assertion of title to property or to an incorporeal hereditament or real franchise ousted the jurisdiction of these inferior magistrates or tribunals.3 Per Campbell, J., Jackson v. People, 9 Mich. 111, 117 (1860). Further see chap. xxii. post, sec. 925 et seq. An appeal from inferior tribunals does not exist unless plainly given. People v. Police Justice, 7 Mich. 456; Conboy v. Iowa City, 2 Iowa, 90; Muscatine v. Steck, 7 Iowa, 505; Dubuque v. Rebman, 1 Iowa, 444; McGarty v. Deming, 51 Conn. 422, where, however, the charter denied the right of an appeal. Certiorari, on the other hand, will lie unless plainly denied, or other specific remedy be given. Cunningham v. Squires, 2 West Va. 422 (1865); post, sec. 611, and chap. xxii. on Remedies against Illegal Corporate Acts, post. 1 Canal and Walker Streets, In re, 12 N. Y. (2 Kern.) 406 (1855); New York, Central R. Co. v. Marvin, 11 N. Y. (1 Kern.) 276. 2 Wertheimer v. Boonville, 29 Mo. 254 (1860). 3 Warwick v. Mayo, 15 Gratt. (Va.) 528 (1860). To the same effect, see Jackson v. People, 9 Mich. 111 (1860); Grand Rapids v. Hughes, 15 Mich. 54 (1866). See chapter on Streets. What record of conviction before corporation officers or courts should show. Keeler v. Milledge, 4 Zabr. (24 N. J. L.) 142; Muscatine v. Steck, 7 Iowa, 505; Buck v. Danzen. backer, 8 Vroom (37 N. J. L.), 359; St. Peter v. Bauer, 19 Minn. 327 (1872); Goldthwaite v. Montgomery, 50 Ala. 486 (1874). See chap. xxii. post. A town officer who holds in custody a person committed by a verbal order of a police magistrate for non-payment of a fine imposed for the breach of a town ordinance, acts not only without authority but in violation of law. Odell Trustees v. Schroeder, 58 Ill. 353 (1871). CHAPTER XIV. CONTRACTS. § 442 (370). Subject outlined. The mode of enforcing the contracts of municipal corporations will be considered hereafter. In this chapter we shall treat, in the order below indicated, of the power of such corporations to make contracts of different kinds, the mode of exercising the power, and the effect of transcending it. 448. 1. Extent of Power to contract, and how conferred 2. Mode of exercising the Power-sec. 449. secs. 443 3. Seal not necessary unless required - May be concluded by Vote or Ordinance secs. 450, 451. 4. When Corporation bound by Contracts made by AgentsMode of Execution secs. 452-456. 5. Contracts beyond Corporate Powers void-Ultra Vires a Defence secs. 457, 458. 6. Implied Contracts When Deducible-secs. 459, 460. 7. Ratification of Unauthorized Contract secs. 463-465. 8. Provision requiring Letting to Lowest Bidder-secs. 466470. 9. Contract of Suretyship-sec. 471. 10. Rights and Liabilities as respects Authorized Contracts — Illustrations Cases mentioned Power to settle Disputed Claims -To give Extra Compensation-To employ Attorneys-secs. 472-479. 11. Contracts for Public Works 480-483. - Rights of Contractors secs. 12. Same Corporate Control under Stipulation to that effectsecs. 480-483. 14. Ordinary Warrants or Orders - Their Legal Nature secs. 487, 488. 15. Liability of Indorsers thereof sec. 489. 1 See post, chaps. xx., xxii., xxiii. Legislative power over and in respect of contracts made by municipal corporations. See chaps. iv., vii., and viii., ante. 16. Payment and Cancellation of Orders and Warrants, - sec. 500. 17. Rights and Remedies of Holders thereof-secs. 501, 502. 18. Defences thereto Ultra Vires-Fraud 19. Orders payable out of a Particular Fund Want of Consid 20. Interest on Corporate Indebtedness-sec. 506. 21. Railroad Aid Bonds Course of Decision in U. S. Supreme Court- secs. 511-515. 22. Leading Cases in National Supreme Court on the Subject noticed secs. 521-534. 23. Decisions in State Courts referred to― Conclusions stated secs. 550-554. § 443 (371). Extent of Power to make Contracts; and how conferred. In determining the extent of the power of a municipal corporation to make contracts, and in ascertaining the mode in which the power is to be exercised, the importance of a careful study of the charter or incorporating act, and of the general legislation of the State on the subject, if there be any, cannot be too strongly urged. Where there are express provisions on the subject, these will, of course, measure, as far as they extend, the authority of the corporation. The power to make contracts, and to sue and be sued thereon, is usually conferred, in general terms, in the incorporating act. But where the power is conferred in this manner it is not to be construed as authorizing the making of contracts of all descriptions, but only such as are necessary and usual, fit and proper, to enable the corporation to secure or to carry into effect the purposes for which it was created; and the extent of the power will depend upon the other provisions of the charter prescribing the matters in respect of which the corporation is authorized to act. To the extent necessary to execute the special powers and functions with which it is endowed by its charter, there is, indeed, an implied or incidental authority to contract obligations, and to sue and be sued in the corporate name.1 11 Kyd, 69, 70; 2 Kent Com. 224; Angell & Ames, secs. 110, 271; Galena v. Corwith, 48 Ill. 423 (1868); Straus v. Eagle Ins. Co., 5 Ohio St. 59 (1855); Chaffee v. Granger, 6 Mich. 51; Douglass v. Virginia City, 5 Nev. 147 (1869); Goodrich v. Detroit, 12 Mich. 279; Bank of Columbia v. Patterson, 7 Cranch, 299 (1813); Siebrecht v. New Orleans, 12 La. An. 496 (1857; Bateman v. Ashton-nnder-Lyne, 3 H. & N. 322 (1858); Nowell v. Worcester, 9 Exch. 457 (1854). Indianapolis v. Indianapolis Gas Co., 66 Ind. 396, approving text; Montgomery County v. Barber, 45 Ala. 237 (1871); Smith v. Stephan, 66 Md. 381; Galveston v. Loonie, 54 Tex. 517. Under general authority to make all contracts necessary for its welfare, a city may contract for water-works. Cabot v. Rome, 28 Ga. 50; see Wells v. Atlanta, 43 Ga. 67. A contract granting the exclu |