Page:The New International Encyclopædia 1st ed. v. 14.djvu/156

MUNICIPALITY. 124 MUNICIPALITY. within tlio meaning of the limitation. A nnini- lijiality cannot escape liability for its obligation arisini; ex deliclu l>v pleadiiif; that its inilel>led- ness has reached the constitutional limit. Those «ho contract with a niunici|)ality whereby its indebtedness is increased do so at their own risk. If, therefore, an individual lends money to a city which has no legal power to borrow he cannot recover it by pleading ignorance of the powers of the city. But where municipal bonds contain recitals that the city is acting within its con- stitutional power, and has complied with all the requirements of the law. it will be estopped from disputing the truth of such reiiresentations as against a bona fide purchaser of the bonds. The legislature has no power to enact legisla- tion which will have the effect of impairing the; obligation of a contract between the city and a private party. Thus it cannot so limit the tax- ing power of a municipality as to render it impossible for the city to meet its ordinary ex- penses and pay interest on its outstanding bonds. On the other hand, the legislature has no power to authorize a municipality to levy taxes for other than public purposes. Thus it cannot authorize the granting of aid by a municipality (if it involves taxation) to a private enterprise to enable it to begin business, sime that would amount to taking private property without com- pensation. .mong the public purposes for which a municipality may levy taxes may be mentioned the construction of sewers, the laying out of parks, the establishment of water-works, etc. Moreover, the legislature cannot levy a special tax npon the inhabitants of a municipality for other than strictly municipal purposes. Thus it cannot require them to defray the expenses of improving a navigable stream or to take stock in a railway company, although they may be re- qtiireil to build a local canal or levee. The city may be compelled by mandanms to fulfill its obligations to private parlies, as where it refuses to levy a tax for the purpose of paying interest on its outstanding bonds or for the satisfaction of juilgments against it. The city may be en- joined from doing an injurious act to an indi- vidual or from committing trespass upon his premises. Furthermore, it may he enjoined at the instanw of a taxpayer from violating the law or doing other acts prejudicial to the general w(dfare. as where the city proposes to enter into a contract which will create an indebtedness in excess of the constitiitional limits. .Mimicipal otiicers may also be proceeded against under a writ of <iuo trarranlo for usurping ]>owers not legally conferred upon them. In the I'nited States the practice of frequent interference in the affairs of the cities by the legislature has led to so many abuses that in nmst of the recent constitutions provisions have been inserted pro- hibiting the legislatures from passing special acts which apply to a particular city when a general law can be made applicable. These provisions, liowever. have fre(piently Ix^en evaded liy arrang- ing the cities into classes in such manner that a particular city will constitute a class by itself anil by making the act applicable to a single class. The practical difliculties of dispensing entirely with special legislation has led the courts in some instances to sustain the constitu- tionality of methods of classification which seem unreasonable if not ludicrous. Where n part of a municipality is detached from the main body of the city the old corporation retains all the lia- bilities and private property of the city if no provision to the contrary is made by legislation, l'r(i]icrty of a i)ublic character falling within the ■, limits of the new corporation passes into its ^ control, the theory being that there has been no transfer of title, i)ut simply a change of trustee. •1 A new municipal corporation, embracing sub- S stantially the same boundaries as the old, is re- i garded in law as the successor of the old, en- fi titled to all its property rights and subject to its 1 liabilities. Upon the repeal of the charter of a ir municipal corporation a court of equity will lay y. hold of its [jrivatc property and administer it for ^ the benefit of the creditors of the corporation. It is a general rule of construction that if the exist- ! ence of a municipal corporation is not questioned I by the State it cannot be put in issue by a pri- j vate individual in a collateral proceeding. < In discussing the liability of municipal cor- ; poralions for torts it is necessary to distinguish j iictween the two classes of powers which they i exercise, viz. public governmental functions on' 1 the one hand and jirivate corporate functions on , the other. When acting in the former capacity 1 municipal corporations are acting as the agent of '■ the State and are governed by the rules of public j law. one of which is the irresponsibility of the ' government for the tortious acts of its agents. ' When acting in a private local capacity, pri- j marily for the advantage and benefit of the locality, the nuinicipal corporation is .subject to the rules of the j)rivate law. according to which j^ it is held liable for the torts of its olliccrs. The/ rule of liability for torts does not apply to tjiuiti corporations, such as counties, townships, school districts, etc., because they are agencies of the State created for the purpose of State admin- istration, and usiially without solicitation or concurrence of action of the inhabitants. The i principal torts which arc imimtable to municipal ■ corporations when acting in tlie latter capacity arc negligence, non-compliance with tlie statutes, nuisance, and trespass. The courts have gctieral- l,v held that municipal corporations are not liable for failure to exercise discretionary legislative power which may be conferred by the legislature or for the manner in which they mav exercise it if done in goixl faith. Thus, it is not liable for its neglect to abate a nuisance, as where an indi- vidual was injured by an explosion of fireworks which the municipality was authorized to pro- liibit. But where the duty is ministerial and absdlute the corporation becomes liable {or the injury arising because of failure to perform it, and where it positively licenses sometliing which constitutes a nuisance it will he held liable for any injuries that may result therefrom. In the exercise of a discretionary power, as in the con- striu-tion of a sewer, the citv will not he held liable for injuries resulting from defective ser- vice unless it results in the positive invasion of an individual's propertv and unless it can be shown aflirmatively that the municipality has been giilty of negligence. It is a general rule that a municipal corporation is not liable for injuries arising from neglect or failure to enforce strictly its ordinances for the good government of the city, but an act of the Legislature making the city liable for property destroyed by mobs has been held to be constitutional. In the exer- cise of it« police powers the city is not generally liable for the acts of omission of its agents, as I