for the purpose of raising a of raising a legal question as to the boundary line of the highway.1 § 308 (148).- Same Subject. Refund Taxes illegally assessed. So, a vote by a town to refund money paid by assessors of the town on an illegal assessment made by them of a town tax, is an express promise, founded upon a meritorious and legal consideration, and is irrevocably binding upon the town. And this, although without such vote the town could not have been compelled to refund or indemnify the assessors. But such a vote, by a town, would be without consideration in respect to State and county taxes. So, if the town is not concerned, having nothing to lose or gain in the result of the litigation, a vote to indemnify an officer would be in excess of its power, and void; but it would be otherwise if the suit against the officer was in respect to matters in which the corporation was interested.* 3 Bancroft v. Lynnfield, supra. 2 Nelson v. Milford, 7 Pick. (Mass.) 18. A separate action, on such a vote, lies against the town in favor of each assessor for his share, which does not include, however, his own tax, paid by him voluntarily. Ib. 3 Vincent v. Nantucket, 12 Cush. 103, 105; Gregory v. Bridgeport, 41 Conn. 76. "A promise to indemnify a tax collector if he would collect, by pretence of his official authority, a tax which he knew was illegal, would be an agreement to violate the law, and could not be enforced." Pike v. Middleton, 12 N. H. 281, per Gilchrist, J. Selectmen, under their authority "to order and manage all of the prudential affairs of the town," may bind the town thus to indemnify its officers. 12 N. H. 281, supra; ante, § 42 and notes. Briggs v. Whipple, 6 Vt. 95. A by-law declaring that the officers of the corporation shall be indemnified for all lawful acts done in an official capacity is not illegal. Irwin v. Mariposa, 22 Upper Can. C. P. 367. The principles laid down in the text are applied to municipal corporations in England and Canada. Thus, where the suits are of such a nature that the rights of the corporation are not in any way affected by the result, costs and expenses for attorneys cannot be defrayed out of the corporate funds; as, for example, in Reg. v. Leeds, 4 Q. B. 796, where the question was which of two councillors was legally elected. So costs of defending quo warranto against an alder man of a borough cannot be paid by the corporation. Reg. v. Bridgewater, 2 P. & D. 558. But where the object of the quo warranto or other proceeding or suit is to affect the legal rights of the corporation, or to question its legal existence, the expenses may be defrayed out of the corporate funds. Holdsworth v. Dartmouth, 11 Ad. & El. 490. An indemnity to an officer for lawful acts gives him no claim for compensation against the consequences of unlawful acts. Irwin v. Mariposa, 22 Upper Can. C. P. 367. By-law to indemnify a councillor for the costs of a contested election would be illegal. Bell and Manvers, In re, 2 Upper Can. C. P. 507; 3 Ib. 400. In England an agreement by a corporation with one of its officers for an increase of the salary of an office retained by him as compensation for the loss of an office of which he was deprived, is not binding unless under the seal of the corporation. Queen v. Stamford, 6 Q. B. 433; see also Cope v. Thames, &c. Dock and Railroad Co., 3 Ex. 841. So the appointment of a corporation solicitor should be regularly under the corporation seal. Arnold v. Poole, 4 M. & G. 860. A town clerk, if a solicitor, may have a lien on papers of the corporation, with respect to which he has done work as an attorney or solicitor. King v. Sankey, 5 A. & E. 423. But quære in this country. Where persons entrusted with the administration of a fund have incurred Furnishing Entertainments. Without express § 309 (149). power, a public corporation cannot make a contract to provide for celebrating the Fourth of July, or to provide an entertainment for its citizens or guests. Such contracts are void, and, although the plaintiff complies therewith on his part, he cannot recover of the corporation.1 § 310 (150). Impounding Animals. - Power to impound and forfeit domestic animals must be expressly granted to the corporation, and laws or ordinances authorizing the officers of the corporation to impound, and upon taking specified proceedings to sell the property, are penal in their nature, and where doubtful in their meaning will not be construed to produce a forfeiture of the property, but rather the reverse. The pound-keeper cannot justify in an action brought against him by the property-owner unless he has strictly complied with all the requirements of the law under which he acts. Thus, if he sells without giving the requisite notice, or for the full length of time required, he is liable, although the owner sustains no actual injury from the omission, or the owner may treat the sale as void and recover his property. A statute directing the legitimate and proper expenses thrown upon them by their fiduciary situation, they have a right to reimburse themselves out of the funds. See King v. Inhabitants of Essex, 4 T. R. 591; King v. Commissioners of Sewers for the Tower Hamlets, 1 B. & Ad. 232; Attorney-General v. Mayor of Norwich, 2 M. & C. 406; Regina v. Mayor and Town Council of Sheffield, L. R. 6 Q. B. 652; Reg. v. White, L. R. 14 Q. B. Div. 358; Biggar's Municipal Manual (Canada, 1900), p. 599, citing St. Vincent v. Grier, 13 Grant Up. Can. 173. An attempted appropriation contrary to the terms of the trust may be restrained. Attorney-General v. Aspinall, 2 M. & C. 613; post, chap. xxxii., §§ 1616 et seq. Hodges v. Buffalo, 2 Denio (N. Y.), 110. Same principle. Cornell v. Guilford, 1 Denio, 510; Hood v. Lynn, 1 Allen (Mass.), 103; Gerry v. Stoneham, Ib. 319; Hale v. People, 87 Ill. 72. Nor to celebrate surrender of Cornwallis. Tash v. Adams, 10 Cush. 252. Nor can towns in Massachusetts vote money for the purchase of uniforms for an artillery company. Claflin v. Hopkinton, 4 Gray, 502. "Corporations," says Jewett, J., in Hodges v. Buffalo, 2 Denio, 110, "have no other powers than such as are expressly granted, or such as are necessary to carry into effect the powers expressly granted." Ante, §§ 237-239. În New York there is a statutory declaration of this commonlaw principle. 1 Rev. Sts. 599, §§ 1-3. "Until the case of Hodges v. Buffalo, 2 Denio, 110, nothing," says Pratt, J., in Halstead v. New York, 3 N. Y. 430, 433, "was more frequent than for city authorities to vote largesses and give splendid banquets for objects and purposes having no possible connection with the growth or weal of the body politic, thus subjecting their constituents to unnecessary and oppressive taxation." Under a clause in a charter providing that "nothing in this charter shall be construed as giving the power to vote money for any ordinary object except for the regular, ordinary, and usual expenses of the city," the city council of Newport gave a ball and banquet; certain taxpayers obtained a temporary injunction restraining the treasurer from paying the bills, which, upon final hearing, was sustained and made perpetual. Austin v. Coggeshall, 12 R. 1. 329; s. P. Greenough v. Wakefield, 127 Mass. 275; post, chap. xxxi., §§ 1581 et seq. 2 White v. Tallman, 26 N. J. L. 67; Willis v. Legris, 45 Ill. 289; Ib. mayor to issue a warrant annually, within ten days from July 1, commanding police officers to "kill all dogs not licensed according to law, whenever and wherever found," is not in conflict with the Constitution of Massachusetts,' or of Kansas.2 § 311 (151). Party Walls. Power in a charter to pass ordinances “to authorize the erection of party walls and fences, and to regulate them," includes the power to authorize their erection upon 218; Rounds v. Stetson, 45 Me. 596; Gilmore v. Holt, 4 Pick. (Mass.) 258; Rounds v. Mansfield, 38 Me. 586; Smith v. Gates, 21 Pick. (Mass.) 55, where the rule in the text was applied, although the sale was made only twenty minutes before the expiration of the time required by law. So actual knowledge, by the owner of the beasts, of the impounding thereof, is not equivalent to the written notice required by the statute. Coffin v. Field, 7 Cush. (Mass.) 355. Abridgment of the required notice for the shortest period avoids the sale; and so does a sale, at one bidding, of two animals having different owners. Clark v. Lewis, 3.5 Ill. 417. Purchaser must show a regular and authorized sale when his title is questioned by the former owner. Ib. Breach of a pound, and liberating an animal therein confined, is no violation of an ordinance prohibiting "any person from opposing or interrupting any city officer in the execution of the ordinances of the city." Rome v. Omburg, 22 Ga. 67. Marshal must strictly comply with the ordinance, or he becomes a trespasser from the beginning. 13 Pick. 384; 4 Pick. 258; 21 Pick. 55; 13 Met. 407; 7 Cush. 355; 9 Pick. 14; 12 Met. 118; 23 Pick. 255; 12 Met. 198. Owner cannot legally break pound and rescue animals. 5 Pick. 514; 5 Cush. 267. Pound defined. 2 Cush. 305. Marshal cannot delegate his authority to others to impound for him generally, and in his absence, but may have assistants to act in concert with him. Jackson v. Morris, 1 Denio (N. Y.), 199. See Friday v. Floyd, 63 Ill. 50. Officers must use the public pound. 1 R. I. 219. Replevin does not lie against a poundkeeper, at common law, while the creatures are in his legal custody. Co. Litt. 47 B.; Ib. 145 B.; 1 Chit. Pl. 159; Pritchard v. Stevens, 6 Term R. 522; Ilsley r. Stubbs, 5 Mass. 283; Smith v. Huntington, 3 N. H. 76; King v. Ford, 70 Ga. 628. But it does lie if he voluntarily parts with his legal control over them, or if he impounds them in any other places than those prescribed by the law, as, for example, in his pasture or barn, although this be done the more conveniently to furnish them with food and drink. Bills v. Kinson, 21 N. H. 448. In New Hampshire, if creatures are found "doing damage," they may be impounded, and appraisers are to ascertain "whether any damage was done." Held that the statute contemplated actual, and not merely nominal damages, to justify impounding. Osgood v. Green, 33 Ñ. H. 318, and cases cited. As to power to take up and forfeit animals, at large, see also chapter on Ordinances, post; infra, $ 620. 1 Blair v. Forehand, 100 Mass. 136; approved in Mowery v. Salisbury, 82 N. Car. 175. The Act of July 3, 1863, entitled "An Act in Relation to Damages occasioned by Dogs," so far as it undertakes to charge the owner with the amount of damage done by his dog, as fixed by the selectmen of the town, without an opportunity to be heard, is unconstitutional; because it is contrary to natural justice, and not within the scope of legislative authority conferred by the Constitution on the general court; and also because it is in violation of the provision of the Bill of Rights, which secures the right of trial by jury in all controversies concerning property, except in cases where it had not theretofore been used and practised. East Kingston v. Towle, 48 N. H. 57. The legislature have power to make towns liable for damage done within their limits by dogs, and to give towns a right of action to recover the actual damage from the owners of the dogs. Ib. 2 State v. Topeka, 36 Kan. 76, where the constitutionality of ordinances regulating the keeping, registering, and destruction of dogs is fully considered, and many authorities cited in the opinion, by Valentine, J. 1 the application of either owner, and without the consent of the other; and such an ordinance is not unconstitutional because compensation is not provided for the land occupied by the wall.1 § 312 (152). Public Defence; Loans and Taxation to pay Bounties. During the Rebellion acts were passed by many of the legislatures of the adhering States in effect authorizing municipalities to raise money by loans and taxation, to pay bounties to volunteers to enable the municipality to fill its quota under the calls of the President for troops, and thereby avoid an anticipated draft. The constitutional principles involved in legislation of this character will be found learnedly discussed in the cases below cited, which fully establish the validity of such legislation." But without express authority a municipality possesses no such power; yet if exercised, may be validated by subsequent legislative action.* it 1 Hunt v. Ambruster, 17 N. J. Eq. 208. Regulations as to party walls must be strictly followed. If a person, under color of such regulations, does injury to his neighbor, he is liable to be sued. Pratt v. Hillman, 4 B. & C. 269. See also Queen v. Ponsford, 1 D. & L. 116. No man has a right to presume that his neighbor will hereafter build a house adjoining to his, and erect half of his outside wall on his neighbor's ground in consequence of such presumption. Barlow v. Norman, 2 W. Bl. 959. An external wall cannot be said to be a party wall. Sims v. Estate Company, 14 L. T. N. s. 55. A party wall is a wall which belongs to two persons as part-owners, or divides two buildings, one from another. Weston v. Arnold, L. R. 8 Ch. Ap. 1084. The English Stat., 14 Geo. III. chap. lxxviii. was held not to make party walls common property. Matts v. Hawkins, 5 Taunt. 20. If one proprietor added to the height of such a party wall, and the other pulled down the addition, the first might maintain trespass for pulling down so much of it as stood on the half of the wall which was erected on his own soil. Ib. The property in a wall, though erected at joint expense, follows the property of the land whereon it stands. Ib. Power to pass ordinances "to authorize the erection of party walls, &c., and to regulate them," has been held to include the power to authorize their erection upon the application of either owner, and without the consent of the other. Hunt v. Am 3 bruster, 17 N. J. Eq. 208. In Canada, see Biggar's Municipal Manual (1900), pp. 612. 613. Further as to party walls, McAdam on Landlord and Ten. 145-160, and works on Easements. 2 Speer v. School Directors, 50 Pa. St. 150, two judges dissenting. See Hilbish v. Catherman, 64 Pa. St. 154, where the prior cases in that State are commented on by Agnew, J. State v. Richland Township, 20 Ohio St. 362; Thompson v. Pittston, 59 Me. 545; Broadhead v. Milwaukee, 19 Wis. 652; State v. Tappen, 29 Wis. 664; s. c. 9 Am. Rep. 622; Sperry v. Horr, 32 Iowa, 184; Booth v. Woodbury, 32 Conn. 118; Shackford v. Newington, 46 N. H. 415; Lowell v. Oliver, 8 Allen (Mass.), 247; Freeland v. Hastings, 10 Allen, 570; Comer v. Folsom, 13 Minn. 219; Dayton v. Rounds, 27 Mich. 82; Cooley, Const. Lim. 219-229. Cooley on Taxation (2d ed.), 136, collects the cases and states the result. Veazie v. China, 50 Me. 518; Clark Co. v. Lawrence, 63 Ill. 32; Ib. 40; Bowles v. Landaff, 59 N. H. 164; Gould v. Raymond, Ib. 260. 3 Stetson v. Kempton, 13 Mass. 272; Fiske v. Hazzard, 7 R. I. 438; Shackford v. Newington, supra; ante, § 42. It is not the duty or function of a town to procure the passage of an act by the legislature, authorizing it to pay bounties. An appropriation for that purpose is illegal. Mead v. Acton, 139 Mass. 341. Booth v. Woodbury, 32 Conn. 118; Kunkle v. Franklin, 13 Minn. 127; Comer v. Folsom, 13 Minn. 219; Hilbish v. Catherman, 64 Pa. St. 154; § 313 (153). Aid to Railroad Companies; Municipal Subscriptions and Bonds, and Taxation to pay the Same. The most noted of extraordinary or extra-municipal powers conferred upon municipal and public corporations is the authority to aid in the construction of railways by subscribing to their stock, issuing negotiable bonds as a means of paying their subscription, and taxing the inhabitants or the property within their limits to pay the indebtedness thereby incurred. Legislation of this kind belongs to a period comparatively recent, and has been more or less resorted to, at times, by almost every State in the Union. As it is an author's duty to state what the law is rather than what, in his judgment, it ought to be, he is constrained to admit that a long and almost unbroken line of judicial decisions in the courts of most of the States, as well as in the Supreme Court of the United States, has established and settled the principle that, in the absence of special restrictive constitutional provisions, it is competent for the legislature to authorize a municipal or public corporation to aid, in the manner above indicated, the construction of railways running near, or to, or through its territory. The cases on the constitutional validity of such legislation are referred to in the note.' Regarded in the light of its effects, whatever State v. Richland Township, 20 Ohio St. 362; ante, § 129. Index, Curative Acts. Goddin v. Crump (act authorizing the city of Richmond to subscribe stock in a company incorporated to improve the navigation of the James River, and to build a road to the falls of the Kanawha River) 8 Leigh (Va.), 120. This is the earliest case of the class. Bridgeport v. Railroad Co., 15 Conn. 475; Society, &c. v. New London, 29 Conn. 174; Douglas v. Chatham, 41 Conn. 211; Nichol v. Nashville, 9 Humph. (Tenn.) 252; Powers v. Superior Court, 23 Ga. 65; Talbot v. Dent, 9 B. Mon. (Ky.) 526; Slack v. Railroad Co., 13 B. Mon. (Ky.) 1; Maddox v. Graham, 2 Met. (Ky.) 56; Commonwealth v. McWilliams, 11 Pa. St. 61; Sharpless v. Mayor, &c., 21 Pa. St. 147; Ib. 188; Commonwealth v. Perkins, 43 Pa. St. 400, 410; 47 Pa. St. 189; Cotton v. County Com'rs, 6 Fla. 610; Cincinnati W. & Z. R. Co. v. Clinton County, 1 Ohio St. 77; Cass v. Dillon, 2 Ohio St. 607; State v. Clinton County, 6 Ohio St. 280; 7 Ohio St. 327; 8 Ohio St. 394; 12 Ohio St. 596, 624; 14 Ohio St. 569; Strickland v. Railroad Co. (Miss.), MSS.; City v. Alexander, 23 Mo. 483; 39 Mo. 485; Ravenswood, &c. Ry. Co. v. Ravens wood, 41 W. Va. 732; Morrill v. Smith County, 89 Tex. 529; Wrought Iron Bridge Co. v. Arkansas City, 59 Kan. 259 (form of motion authorizing issuance of securities); State v. City of Tomahawk, 96 Wis. 73; Commissioners v. Snuggs, 121 N. Car. 394; Neale v. County Court of Wood County, 43 W. Va. 90; State v. Whitesides, 30 S. Car. 579, 584; State v. Neely, 30 S. Car. 587, 604; Floyd v. Perrin, 30 S. Car. 1; Darlington v. Atlantic Trust Co., 68 Fed. 849; Columbus v. Dennison, 69 Fed. 58; Leavenworth County v. Miller, 7 Kan. 479. The opinion of Valentine, J., covers the whole ground of controversy. Kingman, C. J., concurred, and Brewer, J., dissented. Clarke v. Rochester, 24 Barb. 446; Bank of Rome v. Rome, 18 N. Y. 38; Starin v. Genoa, 23 N. Y. 439; People v. Mitchell, 35 N. Y. 551; Police Jury v. Succession of McDonough, 8 La. An. 341; Aurora v. West, 9 Ind. 74; 22 Ind. 88; Mt. Vernon v. Hovey, 52 Ind. 563; Robinson v. Bidwell, 22 Cal. 379; Stein v. Mayor, &c. of Mobile, 24 Ala. 591; Gibbons v. Railroad Co., 36 Ala. 410; Prettyman v. Supervisors, 19 Ill. 406; s. p. 24 Ill. 75, 208; Butler v. Dunham, 27 Ill. 474; Robertson v. Rockford, 21 Ill. 451; Chicago, &c. |