32 id. 97; Baltimore v. Baltimore & Ohio R. R. Co., 21 Md. 50. See, upon the subject of injunctions against municipal corporations, ante, tit. Injunctions. See, also, Dean v. Charlton, 23 Wis. 590; Harney v. Indianapolis, 32 Ind. 244; Sherman v. Carr, 8 R. I. 431; Tash v. Adams, 10 Cush. 252; Holmes v. Jersey City, 1 Beasl. (N. J.) 299; Varick v. New York, 4 Johns. Ch. 53; Brown v. Trustees of Catlettsburg, 11 Bush (Ky.), 435.

But, in general, a court of equity has no jurisdiction to restrain, review, or set aside, the proceedings of a municipal corporation, even if irregular or illegal. Except in special cases this jurisdiction belongs to. the supervisory power and control of the courts of common law. Mayor of Brooklyn v. Meserole, 26 Wend. 132; Bond v. Newark, 19 N. J. Eq. 376; Whiting v. Boston, 106 Mass. 89; Intendant v. Pippin, 31 Ala. 542; Hannewinkle v. Georgetown, 15 Wall. 547.

ARTICLE V.

OF OFFICERS AND AGENTS.

Section 1. In general. In this country, the charter or constitution of a municipal corporation usually makes provision as to all the principal officers, such as mayor, aldermen, etc., and prescribes their various duties. See State v. Von Baumbach, 12 Wis. 310. And it is held that such a corporation cannot, without express authority from its charter, create an office, define its duties, and appoint an incumbent and clothe him with the powers of a municipal officer. Hoboken v. Harrison, 30 N. J. Law, 73. But see People v. Bedell, 2 Hill, 196. So, the provisions of the charter as to the time and mode of election of officers must be strictly observed, and an ordinance which is contradictory to the charter is unauthorized and void. King v. Mayor of Weymouth, 7 Mod. 373; Vason v. Augusta, 38 Ga. 542.

When the charter provides that the common council of a city shall "judge of the qualifications, elections, and returns of their own members," the council possesses the exclusive authority to pass on the subject, and courts have no jurisdiction to inquire into the qualifications, elections, or returns of members thereof. People v. Metzker, 47 Cal. 524.

Where the corporation has power under its charter to create an office by ordinance, and to appoint an incumbent thereto, it also has power to abolish the office. Waldraven v. Memphis, 4 Coldw. (Tenn.) 431. See, also, People v. Mayor of New York, 5 Barb. 43; People v. Hill, 7 Cal. 97. But see Caulfield v. State, 1 S. C. 461.

§ 2. Powers of. The executive head of a municipal corporation is usually styled the mayor, whose powers and duties in this country depend wholly upon the provisions of the charter or act of incorporation. His duties are properly executive and administrative, and he has no jurisdiction to try civil causes, unless conferred upon him by the act of incorporation. Smith v. Deweese, 41 Tex. 594. Sometimes he is clothed by statute with general power to administer, judicially, the laws of the State, and such a statute is not unconstitutional. See Waldo v. Wallace, 12 Ind. 569; Howard v. Shoemaker, 35 id. 111; Prell v. McDonald, 7 Kans. 426; 12 Am. Rep. 423; Morrison v. McDonald, 21 Me. 550. See, as to the authority of the mayor to employ force for the prevention or suppression of mobs, riots, etc., Ela v. Smith, 5 Gray, 121. As to his power to order the destruction of buildings, etc., in public places, see Henderson v. Mayor, 3 La. 563. A mayor, who in no sense belongs to the judiciary, may be authorized to arrest and fine lewd and disorderly women; and in so doing he but exercises the police power which in this respect has always been well distinguished from the judicial power, both in this country and in England. Shafer v. Mumma, 17 Md. 331.

So, the mayor has a summary jurisdiction to fine those who obstruct the public way, though he has no jurisdiction upon the question whether the locus is subject to a public right of way. Warwick v. Mayo, 15 Gratt. 528. And a mayor has no authority, unless expressly conferred by the city charter or ordinances, to employ counsel in behalf of the city. Fletcher v. Lowell, 15 Gray, 103.

The office of a police officer is the creature of statute, and such an officer can only exercise those powers conferred upon him by legislative authority, expressly or by implication. Commonwealth v. Dugan, 12 Metc. (Mass.) 233. And see People v. Hurlburt, 24 Mich. 44; 9 Am. Rep. 103; Baltimore v. Board of Police, 15 Md. 376; Metropolitan Board of Health v. Heister, 37 N. Y. (10 Tiff.) 661; Police Commissioners v. Louisville, 3 Bush (Ky.), 597. A city council may lawfully authorize police officers of the city to arrest upon view, and without warrant, any person in the act of violating city ordinances, made for the preservation of good order and public convenience, when not inconsistent with the general statutes or policy of the State (White v, Kent, 11 Ohio St. 550; Thomas v. Village of Ashland, 12 id. 124; City Council v. Payne, 2 Nott & McCord [S. C.], 475; Butolph v. Blust, 41 How. [N. Y.] 481; S. C., 5 Lans. 84); but not otherwise. Pesterfield v. Vickers, 3 Coldw. (Tenn.) 205. It is held in North Carolina that the violation of a town ordinance, even in the presence of a policeman,

does not necessarily give him a right to arrest the offender. State v. Belk, 76 N. C. 10.

When the municipal authorities of a city act under an authority derived from a statute, they must follow strictly its provisions. Glass v. Ashbury, 49 Cal. 571. And those who deal with the officers of a municipal corporation must ascertain, at their peril, that these officers are acting within the scope of their lawful powers. Cheeney v. Town of Brookfield, 60 Mo. 53.

It is held not to be in the power of a common council of a city to bind its legislative capacities by any private arrangement or stipulations, so as to disable itself from enacting any law that might be deemed essential for the public good. Britton v. Mayor of New York, 21 How. (N. Y.) 251; S. C., 12 Abb. 367, n; Goszler v. Corporation of Georgetown, 6 Wheat. (U. S.) 593.

§ 3. Duties of. Every municipal officer, before entering upon the duties of his office, is usually required to take an oath of office; and an officer intrusted with money or property is generally required, in addition, to give bond and sureties for the faithful performance of his duties. Thus, it is held that upon the choice of a collector of taxes, the town electing him may lawfully require sureties for the faithful discharge of the duties of his office, and the refusal to find such sureties is a non-acceptance of the trust, even after the person chosen has taken the oath of office. Morrell v. Sylvester, 1 Me. 248. But statutes requiring an oath of office and bond are usually directory in their nature; and while it is the duty of the officer elect to perfect his title by complying with the directions of the law as to taking oath, depositing bonds, etc., yet his failure to do so is his own wrongful neglect, and is no defense to an action against his sureties on his official bond. State v. Toomer, 7 Rich. (S. C.) 216; State v. Findley, 10 Ohio, 51. And see Smith v. Cronkhite, 8 Ind. 134; Olney v. Pearce, 1 R. I. 292. So, if officers, as for instance, the members of a common council, who are required to be sworn before they enter on the duties of their office, are wrongly sworn before a person not authorized to administer the oath, their acts are not therefore invalid; they are still officers de facto, and a tax levied by them is valid, and will not be set aside even in a direct proceeding. State v. Perkins, 4 Zabr. (N. J.) 409.

A law requiring commissioners for the assessment of a special tax to defray the expense of a certain public improvement, to take an oath, before proceeding to the assessment, that they will execute their duties to the best of their ability, is sufficiently complied with by their taking the oath after the ordinance requiring the improvement has been passed Vol. IV.

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by the common council, but before its approval by the mayor. Gurnee v. Chicago, 40 Ill. 165.

As to the right of a city to require a bond of indemnity from the owner, who proposes to make excavations in sidewalks for building purposes, etc., see McCarthy v. Chicago, 53 Ill. 38.

If a statute vests the discretion of deciding the places where work shall be done in improving the streets of a city, in a particular body of officers, those officers must make the decision personally. They cannot, by a general resolution, confide the duty to the superintendent of streets. Richardson v. Heydenfeldt, 46 Cal. 68.

§ 4. Liabilities. The officers of a municipal corporation cannot be held responsible in damages to the corporation for negligence in the discharge of their official duty, in the absence of a statute giving the remedy. If liable at all to the corporation from which they received their appointment, they are liable only for want of fidelity and integrity, and not for honest mistakes. Wilson v. Mayor of New York, 1 Denio, 595; Trafton v. Alfred, 15 Me. 258; First Parish in Sherburne v. Fiske, 8 Cush. 264.

As it regards their liability to others, it is held that they are individually liable for the payment of a judgment creditor of the corporation, after he has demanded, and they have refused, to levy a tax to raise the funds, if it is within their power to make such levy (Porter v. Thomson, 22 Iowa, 391); nor is it necessary, in such case, that the judgment creditor should demand the issue of scrip, as well as the levy of a tax. Oswald v. Thedinga, 17 id. 13.

So, a public or municipal officer, who is required to account for and pay over money that comes into his hands, is liable, though it be stolen without his fault, unless relieved from this responsibility by statute. Halbert v. State, 22 Ind. 125; Morbeck v. State, 28 id. 86; State v. Harper, 6 Ohio St. 607.

But public and municipal officers are not held personally liable on contracts made within the scope of their authority, and in the line of their duty, unless it clearly appears that they intended to bind themselves personally. Macbeath v. Haldimand, 1 Term R. 172; Olney v. Wickes, 18 Johns. 122; Ogden v. Raymond, 22 Conn. 379; Nickerson v. Dyer, 105 Mass. 320; Tucker v. Shorter, 17 Ga. 620.

Nor are public officers held responsible for the misconduct or malfeasance of such persons as they are obliged to employ, the maxim respondeat superior having no application in such cases. Bailey v. Mayor of New York, 3 Hill, 531; S. C., 1 N. Y. Leg. Obs. 163; S. C. affirmed, 2 Denio, 433; Pritchard v. Keefer, 53 Ill. 117. Nor are they liable, either civilly or criminally, for acts done within the scope

of their authority, in the exercise of a discretion confided to them by law, in the absence of malice, or corruption, or a statute imposing the liability. Baker v. State, 27 Ind. 485; Stewart v. Southard, 17 Ohio, 402; Craig v. Burnett, 32 Ala. 728; State v. Dunnington, 12 Md. 340. But public officers are liable in civil suits for damages done to individuals by their wanton, malicious, or fraudulent acts, and for acts beyond their jurisdiction. Id.; Wilkes v. Dinsman, 7 How. (U. S.) 89; Waldron v. Berry, 51 N. H. 137. And where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct, and mistake of duty, and honest intentions will not excuse the offender. Amy v. Supervisors, 11 Wall. (U. S.) 136; Nowell v. Wright, 3 Allen, 166; Mills v. City of Brooklyn, 32 N. Y. (5 Tiff.) 489.

So, a municipal corporation may be indicted at common law for a mis-feasance, as well as for non-feasance. Commonwealth v. Proprietors, etc., 2 Gray, 339; State v. Shelbyville, 4 Sneed (Tenn.), 176; Hammar v. Covington, 3 Metc. (Ky.) 494; State v. Hudson County, 1 Vroom (N. J.), 137. And it is held in Tennessee, that the mayor and aldermen of a city, bound by law to keep the streets in repair, are personally liable to indictment if they neglect their duty. Hill v. State, 4 Sneed, 443. So, in Pennsylvania, where the duty of repairing the roads of a municipal district rests upon individuals, they are indictable for neglect to keep them in repair. Phillips v. Commonwealth, 44 Penn. St. 197. See, also, State v. Raleigh, 3 Jones' (N. C.) L. 399. But see State v. Hudson County, 1 Vroom (N. J.), 137.

§ 5. Compensation. There is no such relation between a municipal corporation and the officers which it is required by law to elect, as will oblige it to make compensation to them for the discharge of ordinary official duties, where no provision for any compensation is made by law, and in the absence of any contract. Sikes v. Inhabitants of Hatfield, 13 Gray, 347; Garnier v. St. Louis, 37 Mo. 554; Barton v. New Orleans, 16 La Ann. 317. A person accepting and entering into an office of a municipal corporation must be deemed to have notice of all the provisions of its charter, and can recover compensation for his services only in the manner therein provided. Baker v. Utica, 19 N. Y. (3 Smith) 326. And see McClung v. St. Paul, 14 Minn. 420; Boyden v. Brookline, 8 Vt. 284; Jersey City v. Quaife, 2 Dutch. (N. J.) 63; Bladen v. Philadelphia, 60 Penn. St. 464; Smith v. Commonwealth, 41 id. 335. Nor is a municipal corporation liable for services performed by an officer under an unconstitutional statute. Meagher v. County of Storey, 5 Nev. 244.