PECKHAM, J.1 The only question involved in this case is, upon whom rests the obligation of maintaining the bridge in Livingston county, between the towns of Geneseo and Leicester, over the Genesee river. The plaintiff repaired the bridge upon the employment of the former commissioners of highways of those towns, at an expense of $6,000, and sues their successors therefor. Defendants insist that the bridge is a county charge. Whether it is so or not depends upon the construction to be given to the language of the act incorporating the "Leicester Bridge Company" to construct a bridge at this point in 1837. In the ninth section of that act it was provided that if the bridge shall not be completed within three years, or if, when completed, it should be impassable for fifteen days for want of repairs, unless carried away by unavoidable accident, or if the same shall not be rebuilt within eighteen months, then "the bridge shall become a public bridge, and may be maintained at the expense of the county of Livingston. Laws of 1837, § 9. Was this permissive or mandatory to the county? There are reasons why it should be mandatory. It appears that the stream to be crossed is a river, and the expense of the construction and repair of a bridge would be very onerous to the two opposite towns; more so then, probably, than now. The corporation, chartered in 1837, that first constructed the bridge, with the right to take toll for thirty years if kept in repair, etc., abandoned the bridge when it was swept off some fifteen years after the charter. It could not be made profitable. The county of Livingston then rebuilt it. The course of legislation as to bridges over that river shows the legislative sense, that they should be substantially a county charge; three or four having been built by the county under statute authority. Again, if this act be merely permissive to the county it confers little if any substantial additional power. The county then had authority to build it or to aid any town or towns in its construction, in a limited way, in its discretion. 1 R. S. 524, § 119, citing the statute 2 R. L. 281, § 33. Again, the towns, on opposite sides of a stream, at that time had no regulation by statute, no organization to be put in motion to accom 1 Statement of facts and arguments omitted.-Ed. plish the construction of a bridge. The first act passed upon that subject was in 1841. Laws of 1841, p. 207. Under that act bridges could be built though towns were reluctant to do their duty. See Hill v. Board of Supervisors of Livingston County, 12 N. Y. 52. There would thus seem to have been a propriety in 1837 that the county should have maintained this bridge. But the act contains apt and legal language to require the county to do it. It says it shall "become a public bridge, and may be maintained " by the county. This is a direction to a public body (not an option to a private person or corporation), in the execution whereof the inhabitants of that county have a pecuniary interest. In fact, the public generally may be said to have such an interest. Where persons or the public have an interest in having the act done by a public body, "may," in such a statute, means "must." Newburgh Turn. Co. v. Miller, 5 J. C. 113; Malcolm v. Rogers, 5 Cow. 188. This rule must prevail where there is nothing that would evince a contrary intention in the statute or in the surrounding facts. This disposes of the question. It is conceded, as it well may be, that if the county by this act was required to maintain this bridge, no act of the commissioners could bind the town, as they then had no authority over the bridge. Its maintenance was specially provided for. Whether the commissioners can involve the towns in debt without limit for bridges it is not necessary to decide. The judgment should be affirmed. Judgment affirmed. AURORA WATER CO. v. AURORA. 1895. 129 Mo. 540. 65 SHERWOOD, J.1 Action by plaintiff to recover of defendant city, a city of the fourth class, hydrant rentals amounting in the aggregate to $3,809.90. Plaintiff's claim is that this amount was earned in consequence and by the performance of a contract made between plaintiff and defendant consisting of certain ordinances passed by defendant, adopted by a nearly unanimous vote of the tax-payers and accepted by plaintiff or its assignor. Defendant denied the validity of the contract on constitutional and other grounds, and plaintiff replied. Copies of the ordinances involved will accompany this opinion. 1 Statement of facts, argument, and all the opinion not relating to the power to call a special meeting omitted. ED. @vsicity on K Defendant paid the first installment of rentals for July, 1892, but after the ruling announced in the Columbia case, refused to make any more payments. Inasmuch as the constitutional questions put in issue by the pleadings herein have been in the second opinion delivered in Lamar Water, etc., Co. v. City of Lamar, 128 Mo. 188, determined against defendant's contention by court in banc, it will not be necessary to discuss them; we proceed, therefore, to the consideration of such questions which the record contains as are open to review. I. a. And first as to the passage on February 23, 1891, of ordinance Ord. passed at 35, which ordinance constitutes the ground work of plaintiff's demand. Various objections are urged against the validity of this ordinance. It is insisted that it is invalid because passed at an unauthorized meeting of the board, in that it was not a regular meeting, and that the statutes, while giving to cities of the first, second, and possibly the third, class power to call special meetings, yet that no such power is conferred by statute on cities of the fourth class. It may be granted that no such pante of power is expressly conferred, yet it does not thence follow that such power is nonexistent. Of necessity, cities possess many powers which are not enumerated in the grant of power, and yet pass as the mere incidents and auxiliaries of those expressly granted. not General heffare tances Cities of the fourth class, to which defendant city belongs, have conferred upon them a great variety of powers by section 1589, Revised Statutes, 1889, among them the power "... to pass such other ordinances for the regulation and police of said city, and commons thereto appertaining, as they shall deem necessary; and to pass such ordinances, not inconsistent with this article, as may be expedient in maintaining the peace and good government, health and welfare of the city, its trade, commerce and manufactories." As instances of such implied powers are those when a power to pass ordinances gives to the corporation, without any express grant of power, the incidental right to enforce them by reasonable pecuniary penalties. In England, as it is regarded as the duty and purpose of corporations to preserve the health and safety of the inhabitants of cities, it has always been held that reasonable regulations in regard to such objects fell within the incidental authority of corporations to ordain. Under power conferred to pass ordinances to promote the general welfare and preserve the peace, a city may fix by ordinance the time or places of holding public markets, and make such other regulations concerning them as may conduce to the public interest. Under a general welfare clause in relation to the maintenance of the good order of the city, it has been ruled that a city may "establish all suitable ordinances for administering the government of the city, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits, and for the performance of the general duties required by law of municipal corporations." Under a general power to pass any other by-laws for the well being of the city," such corporation may pass an ordinance prohibiting saloons, etc., to be kept open after 10 o'clock at night. 1 Dillon, Municipal Corporations [4 ed.], secs. 338, 369, 384, 393, 396, 400, and cases cited. These authorities proceed on the evident theory of the familiar maxim that a grant of power takes with it all the necessary incidents to make that grant effectual. State ex rel. v. Walbridge, 119 Mo. 383, 24 S. W. Rep. loc. cit. 460, and cases cited. And, as before stated, there are many implied powers which attach themselves to municipal corporations, inherent powers, which belong to them because they are municipal corporations, just as certain powers are inherent in courts because of the very nature and attributes of their organization. Thus, at common law, it is an established principle in England, that a municipal corporation may, by virtue of its inherent or incidental power, pass a by-law imposing a pecuniary penalty upon such as refuse without legal excuse an office to which they have been duly elected. And the eminent jurist and author heretofore cited indicates that even in this country, under the usual general welfare clause or under their incidental powers, municipal corporations could, by ordinance, impose a reasonable fine because of a similar refusal. 1 Dillon, Municipal Corporations [4 ed.], section 223. So, also, it is one of the common law incidents of all corporations to remove a corporate officer from his office for reasonable and just cause. Ibid, section 240. This principle was recognized and declared in State ex rel. v. Walbridge, supra; see, also, City v. Schoenbusch, 95 Mo. 618. These authorities have been instanced in reply to the suggestion of counsel for defendant that “a city can only do those things that its charter or the general statutes expressly authorize it to do." And surely no power could possess a stronger sanction of necessary impli cation, or could be more conducive toward "maintaining the peace and good government, health and welfare of the city" than one which enables the legal representatives of a municipal corporation to assemble fou in special meeting and pass such ordinance as either the exigency or expediency of the situation demands. And the authorities we find ما announce that among other implied powers of a municipal corporation imple. I is the one which allows a special meeting to be called upon due notice, or to be held without notice where all of the board are present, in which latter case the necessity of notice, in consequence of being waived by universal consent, is dispensed with. 1 Dillon, Municipal Corporations [4 ed.], section 263; 1 Beach, Public Corporations, sections 268, 269. Such waiver occurred in the case at bar when ordinance 35 was passed. This being the case, it is wholly immaterial that section 132 of the ordinances of the defendant city required that should a quorum not be present, the meeting should stand adjourned till the next regular meeting. しい SECTION II. Legislative Power. VANDINE, PETITIONER. 1828. 6 Pick. 187. 8 Cases. 66 PETITION for a writ of certiorari to the Municipal Court of the city of By-law of Boston Boston. Vandine was prosecuted upon a by-law of Boston, passed in April 1826, by which it is ordained, that no person shall remove, cart bone to any person or carry through any of the streets, squares, lanes, or alleys of the city, any house-dirt, refuse, offal, filth or animal or vegetable substance from ruying page Wir streets unless any of the dwelling-houses or other places occupied by the inhabitants, in any cart, wagon, truck, hand-cart or other vehicle, unless such pertiny licensed & aty. son so removing, etc. together with the cart, etc. shall be duly licensed for that employment and purpose by the mayor and aldermen, upon such terms and conditions as they shall deem the health, comfort, convenience or interest of the city require, on pain of forfeiting a sum not less than three dollars nor more than twenty. Petitioner It was proved at the trial, that Vandine transported house-dirt and offal from the yards of houses to his cart standing in the streets of the city. Vandine being called on for his defence, it was agreed that he was amalitat foldg, an inhabitant of the town of Cambridge, and that he owned and kept there a large number of hogs. The judge instructed the jury that the subject of the regulation was one on which it was proper for the city to legislate. . . . He further instructed the jury that, so far as by virtue of the general laws of the Commonwealth, the city council had power to make by-laws for governing the city, these regulations were binding on all persons actually resident within its limits, either for business or pleasure, and whether inhabitants or strangers.1 PUTNAM, J., delivered the opinion of the Court. The first objection is that this by-law is not binding upon strangers, if it should be considered as binding upon the citizens of Boston. Some by-laws are binding upon strangers as well as upon the inhabitants or members of the corporation, and some are not. The distinction is between corporations united as a fraternity for the purposes of business, having no local jurisdiction, and corporations having a territorial jurisdiction; the former have not, but the latter have power to make by-laws binding upon strangers. For example: a by-law of the corporation of Trinity House," that every mariner, within twenty four hours after anchorage in the Thames, put his gunpowder on shore, does not bind, because the corporation has no jurisdiction upon the Thames." Com. Dig. Bye-law, C 2. In the case of Dodwell v. The University of Oxford, 2 Ventr. 33, the 1 Part of the instructions and the arguments of counsel have been omitted. - ED. |