1 refused to compel a city to cover over an open draining canal of long standing, it "not appearing to be a nuisance in the legal sense of the word." So where it is made the duty of the city to remove, as far as they may be able, every nuisance which may endanger health, the courts, unless the power be transcended, cannot ordinarily interfere to control the manner in which this shall be done. But the power to abate nuisances, like all other municipal powers, must be reasonably exercised; and although the power be given to be exercised in any manner the corporate authorities may deem expedient, it is not an unlimited power, and such means only are intended as are reasonably necessary for the public good; wanton or unnecessary injury to private property and private rights are not thereby authorized.3 And generally the judicial tribunals will not interfere with municipal corporations in their internal police and administrative government, unless they are transcending their powers or some clear right has been withheld or wrong perpetrated or threatened.* § 244 (96). Public Powers and Trusts Incapable of Delegation. - The principle is a plain one, that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others. This principle, its scope and limitations, is best shown by examples of its application to actual cases. Thus, where, by charter or statute, local improvements, to be assessed upon the adjacent property owners, are to be constructed in "such man commenced, and to retain counsel for the county. Scollay v. Butte County, 67 Cal. 249. The municipality cannot delegate to a private individual the defence of an action against it, even if he be under an agreement to hold it harmless for all damages and costs. Shelby v. Miller, 114 Wis. 660. Whilst the common council has authority to employ an attorney to represent the city in a litigation, it cannot delegate to the attorney so employed the power to employ other and additional counsel. Knight v. Eureka, 123 Cal. 192; Bowling Green v. Gaines, 123 Ky. 562; 96 S. W. Rep. 852; Huron v. Campbell, 3 S. Dak. 309; post, chapter on Contracts; Index, Attorney. The council cannot appoint ministerial agents by ordinance and authorize them to appoint additional agents. Tampa v. Salomonson, 35 Fla. 446; Ridgeway v. Michellon, 42 N. J. L. 405. ner as the common council shall prescribe" by ordinance, it is not competent for the council to pass an ordinance delegating or leaving to any officer or committee of the corporation, the power to determine the mode, manner, or plan of the improvement. Such an ordinance is void, since powers of this kind must, as above shown,' be exercised in strict conformity with the charter or incorporating act.2 1 Supra, §§ 238, 239. State v. Hauser, 63 Ind. 155; State v. Bell, 34 Ohio St. 194; Birdsall v. Clark, 73 N. Y. 73; N. Y., &c. Trustees, In re, 57 How. Pr. (N. Y.) 500; Thompson v. Schermerhorn, 6 N. Y. 92, relating to grading and levelling streets; affirming s. c. 9 Barb. 152, and approving in the main the views there expressed by Mr. Justice Cady. Phelps v. Mayor, &c., of New York, 112 N. Y. 216; Matter of Emigrant Ind. Sav. Bank, 75 N. Y. 388; Birdsall v. Clark, 73 N. Y. 73; Matter of Presbytery of New York, 9 Daly, 116, aff'd 80 N. Y. 642; Brooklyn v. Breslin, 57 N. Y. 591, distinguishing Thompson v. Schermerhorn, supra; State v. Jersey City, 25 N. J. L. 309; see 28 N. J. L. 500; post, §§ 661, 1236, 1447. Indianapolis v. Indianapolis Gas Co., 66 Ind. 396; Baltimore v. Scharf, 54 Md. 499, citing this section. Same principle applied in similar case, Ruggles v. Collier, 43 Mo. 359, holding that where the charter gave the city power to require streets to be paved, "in all cases where the city council shall deem it necessary," it could not by ordinance make the mayor the judge of the necessity for paving. Reaffirmed but distinguished, Shehan v. Gleason, 46 Mo. 100; East St. Louis v. Wehrung, 50 Ill. 28. So, where the charter gives the city council power to construct sewers of such "dimensions as may be prescribed by ordinance," the council cannot by ordinance require sewers to be constructed of such dimensions as may be deemed requisite by the city engineer. St. Louis v. Clemens, 43 Mo. 395, overruling St. Louis v. Eters, 36 Mo. 436; reaffirmed, St. Louis v. Clemens, 52 Mo. 133; Jack son Co. v. Brush, 77 Ill. 59 (issuing bonds). See further State v. New Brunswick, 30 N. J. L. 395; Meuser v. Risdon, 36 Cal. 239; Hydes v. Joyes, 4 Bush (Ky.), 464; Darling v. St. Paul, 19 Minn. 389, citing text. A direction in an ordinance providing for the construction of a sewer that the engineer shall fix the grade is not unlawful. The fixing of the grade is merely an executive or ministerial function. Rich v. Woods, 118 Ky. 865. An ordinance for paving a street provided for bids for sheet asphalt, asphalt block, or bitulithic paving, the material to be used to be determined by the board of awards after the bids had been opened. Held, that the ordinance delegated to the board of awards a ministerial function only, and that the delegation was valid. Baltimore v. Gahan, 104 Md. 145; 64 Atl. Rep. 716. When a charter authorized a city by ordinance "to erect lamps and to provide for lighting the city," &c., the delegation of the power so conferred to a committee whose action was to be final, was declared illegal. Minneapolis Gas Light Co. v. Minneapolis, 36 Minn. 159. The doctrine of the text applied where a city, empowered to erect and regulate public wharves, and fix the rates of wharfage thereat, undertook to lease the wharf, farm out its revenues, and delegate a person to fix the rates. Matthews v. Alexandria, 68 Mo. 115; post, chapter on Taxation. So, where a charter directed the common council to appoint a time when persons interested in an application for opening a street would be heard, the council must itself fix the time, and cannot delegate that duty to the clerk. If it does so, its proceedings will be set aside on certiorari or other direct proceeding. State v. Jersey City, 25 N. J. L. 309; State v. Jersey City, 26 N. J. L. 444; State v. Paterson, 34 N. J. L. 163. The text is cited and approved in the following cases: Birdsall v. Clark, 73 N. Y. 73; State v. Trenton, 42 N. J. L. 74; Parker v. New Brunswick, 30 N. J. L. 395; State v. Paterson, 34 N. J. L. 163. Á municipal corporation cannot delegate powers conferred upon and to be exercised by it to a street committee or others. Whyte v. Nashville (sidewalk assessment), 2 Swan (Tenn.), 364. See Smith v. Morse, 2 Cal. 524; So, where a power - for example, the power to issue licenses — is granted by law, or by an ordinance duly passed, to the mayor and aldermen, they are constituted to act as one deliberative body, to the end that they may assist each other by their united wisdom and experience, and the result of their conference be the ground of their determination: where this is the case, the board of aldermen cannot, even by a vote, delegate the power to the mayor alone.' But the principle that the exercise of municipal powers or discretion cannot be delegated does not prevent a corporation from appointing agents and empowering them to make contracts, or from appointing com Oakland v. Carpenter, 13 Cal. 540; Murray v. Tucker, 10 Bush (Ky.), 240; compare State v. Atlantic City, 34 N. J. L. 99, 108. See Brooklyn v. Breslin, 57 N. Y. 591, distinguishing Thompson v. Schermerhorn, supra. A delegation of power is of course valid when expressly authorized by the legislature. Brooklyn v. Breslin, supra; State v. Paterson, 34 N. J. L. 163; post, §§ 1236, 1383. 1 Day v. Green, 4 Cush. 433, and cases there cited. Further, as to delegation of power, Coffin v. Nantucket, 5 Cush. 269; Ruggles v. Nantucket, 11 Cush. 433; Clark v. Washington, 12 Wheat. 40, 54; Cooley, Const. Lim. 204; Northern Cent. R. Co. v. Baltimore, 21 Md. 93; Winants v. Bayonne, 44 N. J. L. 114; State v. Paterson, 34 N. J. L. 163; Haynes v. Cape May, 52 N. J. L. 180; Young v. Atlantic City, 60 N. J. L. 125; Slocum v. Ocean Grove, 59 N. J. L. 110; Lambertville v. Applegate, 73 N. J. L. 110. Where a city's charter commits to the council exclusively the control of the city's finances, and does not, in express terms, or by fair implication, authorize the delegation to an agent of a discretion to sell its bonds without limitation as to price, it was held that the city cannot delegate to the mayor power to sell the bonds at his discretion as to price. Blair v. Waco, 75 Fed. Rep. 800. When the statute gives the council power to fix license fees for revenue, it cannot delegate the power so to do to the mayor, or, in his absence, to the recorder. Thurlow Medical Co. v. Salem, 67 N. J. L. 111. Power to revoke a liquor license cannot be delegated by the common council to the mayor acting alone. Carbondale v. Wade, 106 Ill. App. 654. Power of mayor and aldermen as to choosing site for mar kets cannot be delegated to commissioners. State v. Paterson, 34 N. J. L. 163. It A grant by the council of a corporation to build a street railroad must be made by ordinance directly to the parties to be therein named, and the authority to make the grant cannot be delegated by the council to any officer or board. State v. Bell, 34 Ohio St. 194. So where the city built a pier in respect of which it was authorized to fix tolls for its use and collect the same. leased it to a party; failing to keep the pier in repair, the lessee brought an action for damages; the power of the council not being subject to delegation, the lease was declared void. Lord v. Oconto, 47 Wis. 386; s. P. Lauenstein v. Fond du Lac, 28 Wis. 336; Mullarky v. Cedar Falls, 19 Iowa, 21; Gale v. Kalamazoo, 23 Mich. 344; Milhau v. Sharp, 19 Barb. 435; Rogers v. Collier, 43 Mo. 359; East St. Louis v. Wehrung, 50 Ill. 28. Any work not done within the time specified, the common council was required to cause to be done by contract or otherwise. An ordinance directed that the superintendent of streets should " cause the work to be done," thus delegating the precise authority conferred upon it. This was held to be unauthorized. The charter conferred the power, said the court, to cause it to be done by contract or otherwise; this required the exercise of discretion and judgment as to the manner in which the work should be done. The legislature said it must be the judgment of the council, and they attempted to invest the superintendent of streets with its exercise. This they had no power to do; they could not delegate the power_thus conferred. Birdsall v. Clark, 73 N. Y. 73. mittees and investing them with duties of a ministerial or administrative character.1 A municipal council having authority to pave streets at the primary expense of the city, directed the making of the pavements of one or the other of specified materials, but giving to the owners of abutting lots, on whom the expense would ultimately fall, the privilege of selecting which, and reserving to the street committee the authority to select, in case the lot-owners failed, and authorized the mayor to execute a contract accordingly, which was done. It was objected by the city that this contract was invalid: (1) because the city could not delegate the power to the mayor to make it; and (2) because the mayor could not delegate to the lot-owners the power of determining the kind of materials. The Supreme Court of the United States, while admitting that "the council could not delegate all the power conferred upon it" in this respect, yet held that it could do its ministerial work by agents, and that there was here no unlawful delegation of power." § 245 (97). Legislative Powers cannot be surrendered or bargained away. Powers are conferred upon municipal corporations for public purposes; and as their legislative powers cannot, as we have just seen, be delegated, so they cannot without legislative authority, express or implied, be bargained or bartered away. Such corporations may make authorized contracts, but they have no implied power, as a party, to make contracts or pass by-laws which 1 Hannibal & St. J. R. Co. v. Marion County, 36 Mo. 294; Schenley v. Commonwealth, 36 Pa. St. 29; Stewart v. Council Bluffs, 58 Iowa, 642; Harcourt v. Asbury Park, 62 N. J. L, 158; Kramrath v. Albany, 127 N. Y. 575, aff'g 53 Hun, 206; People v. Green, 64 N. Y. 606, rev'g 6 Hun, 11; Dancer v. Mannington, 50 W. Va. 322, citing text. Under authority "to regulate the numbering of houses, "the board of aldermen may authorize the appropriate city officer to renumber a street. Van Ingen v. Hudson Realty Co., 106 N. Y. App. Div. 444. Where the taxpayers have approved of the purchase price and site of land to be purchased, the devolution upon the city solicitor of the duty of obtaining a proper deed to the land was not an unlawful delegation of power, such duty being purely ministerial or administrative. Ecroyd r. Coggeshall, 21 R. I. 1, citing text. Where the charter gave the common council power to "ordain by-laws relating to wharves, and the anchoring, moving, and mooring of vessels," and "to appoint all necessary officers to carry the by-laws into effect," and the council passed a by-law creating the office of superintendent of wharves, and giving him "full power to order and regulate, whenever requested by the owner or lessee of any wharf, the mooring of vessels at such wharf," such a bylaw is not void as delegating to the superintendent of wharves the making of regulations which the charter gave the council alone the power to make. Gregory v. Bridgeport, 41 Conn. 76. See chapters on Contracts and Corporate Meetings, post. 2 Hitchcock v. Galveston, 96 U. S. 341. If a contract should be invalid because of the delegation of powers, it may be ratified by the council. Ib. Index, Curative Acts, Ordinances. shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties. The cases cited mark the scope and illustrate the Baltimore, 75 Md. 247, citing text; 1 Richmond Gaslight Co. v. Middletown (gas contract), 59 N. Y. 228; Lord v. Oconto, 47 Wis. 386, approving text; Matthews v. Alexandria, 68 Mo. 115; Bodine v. Trenton (boundaries of streets), 36 N. J. L. 198; State v. New Brunswick, 30 N. J. L. 395; Indianapolis v. Indianapolis Gas Co., 66 Ind. 396, approving text; Milhau v. Sharp, 27 N. Y. 611; Ill. &c. Co. v. St. Louis, 2 Dillon C. C. 70; Gale v. Kalamazoo (market-house contract), 23 Mich. 344; Louisville City Railroad Co. v. Louisville, 8 Bush (Ky.), 415; Covington, &c. R. R. Co. v. Covington, 9 Bush (Ky.), 127; People's Railroad v. Memphis Railroad, 10 Wall. 38, 50; It has been by some courts held Presb. Church v. Mayor, &c. of New that one legislature, in the enactment of York, 5 Cow. 538; followed, Stuy- laws, cannot, even by contract, put it out vesant v. Mayor, &c. of New York, 7 of the power of a subsequent legislature to Cow. 588; Western Sav. Fund Society repeal or amend them; cannot thus surv. Philadelphia, 31 Pa. St. 175; Lehigh render a portion of its sovereign power. Water Co.'s Appeal, 102 Pa. St. 515; Debolt v. Ins. and Trust Co., I Ohio St. San Francisco Gas Light Co. v. Dunn, 564; Plank R. Co. v. Husted, 3 Ohio 62 Cal. 580; Mayor, &c. of Albany, In St. 578, per Bartley, C. J., dissenting; re 23 Wend. 277; New York & H. R. Matheny v. Golden, 5 Ohio St. 375; Co. v. Mayor, &c., 1 Hilt. (N. Y.) 562, Mott v. Pa. Railroad Co., 30 Pa. St. 9; 568; Martin v. Mayor, &c., 1 Hill Newton v. Mahoning County Com'rs, (N. Y.), 541, 545; Goszler v. George- 100 U. S. 548; American R. Tel. Co. v. town, 6 Wheat. 593; Sedgw. Const. Hess, 125 N. Y. 641; Henderson v. and St. Law, 634; State v. Graves, 19 Ogden City R. Co., 7 Utah, 199. Md. 351, 373; Bryson v. Philadelphia, see, in Supreme Court of the United 47 Pa. St. 329; Cooley, Const. Lim. States, as to legislative contracts to 206; Albany St., 6 Abb. Pr. (N. Y.) exempt from taxation, &c., Home of the 273; Britton v. Mayor, &c. of New Friendless v. Rouse, 8 Wall. (U. S.) 430, York, 21 How. Pr. R. 251; New York and prior cases cited, and the vigorous v. Second Av., &c. Co., 32 N. Y. 261; dissent (Ib. 441), which seems, were the Dingman v. People, 51 Ill. 277; Brim- question open, to be the sound view; at mer v. Boston, 102 Mass. 19; Johnson all events, it is clear that "An alleged v. Philadelphia, 60 Pa. St. 445; State v. surrender or suspension of a power of Cin. Gas Co., 18 Ohio St. 262, 295; government respecting any matter of Jackson v. Bowman, 39 Miss. 671; public concern must be shown by clear Oakland v. Carpentier, 13 Cal. 540, and inequivocal language; it cannot be opinion of Baldwin, J.; Smith v. Morse, inferred from any inhibitions upon par2 Cal. 524; Louisville City Railway v. ticular officers or special tribunals, or Louisville, 8 Bush (Ky.), 415; Karst from any doubtful or uncertain exv. St. Paul, &c. R. Co., 22 Minn. 118; pressions." Wheeling and Belmont Peru v. Gleason, 91 Ind. 566; Brenham Bridge Co. v. Wheeling Bridge Co., 138 v. Water Co., 67 Tex. 542; National U. S. 287; Safety Insulated Wire & Bank v. St. Joseph, 31 Fed. Rep. 216; Cable Co. v. Baltimore, 25 U. S. App. ante, § 92 and note; post, §§ 277, 166; ante, chap. iv. more fully; also 1215; Mahoning County v. Young, Cooley, Const. Lim. 127, 280; Sedg. 16 U. S. App. 253; Winter v. Mont- Const. and St. Law, 616, 633; chapter gomery, 83 Ala. 589; Illinois Central on Taxation and post, §§ 704, 1215. Hospital v. Jacksonville, 61 Ill. App. 199, citing text; Snouffer v. Cedar Rapids, &c. R. Co. 118 Iowa, 287, 304; North Baltimore Pass. R. Co. v. But Vicksburg Water Case. - The Vicksburg case came the third time before the Supreme Court of the United States in Vicksburg v. Vicksburg Water Works |