89

authority.88 In some states the concurrence of both legislature and city is required. The legislature likewise possesses the power to locate streets, and may exercise it without municipal consent. This, like other municipal powers, may be delegated to the municipality."1

90

The doctrines of this chapter are believed to have the support of the preponderance of judicial decision in the United States, and to be consistent with the fundamental principles of our government.

Classes of Powers, Franchises and Property.

The legislature is the supreme trustee for the people of all public powers, rights, and property. The municipality is the local general agent of the state for governmental purposes. It has powers, franchises, and property of two classes: (1) Those held and exercised for the welfare of the general public; (2) those held and exercised for the local benefit of the municipality and its inhabitants. The former are subject to the unlimited control of the legislature; the latter are not thus subject. But the state may administer these trusts and affairs through other agencies than said municipality for the benefit of the cestuis qui trustent."

92

88 People v. Kerr, 27 N. Y. 188; Dubach v. Railroad Co., 89 Mo. 483, 1 S. W. 86; Savannah & T. R. Co. v. Savannah, 45 Ga. 602; City of Milwaukee v. Railroad Co., 7 Wis. 85.

89 2 Dill. Mun. Corp. § 701a, note.

* Lennon v. New York, 55 N. Y. 365; Sinton v. Ashbury, 41 Cal. 525.

912 Dill. Mun. Corp. §§ 680, 727; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336.

92 DARLINGTON v. MAYOR, 31 N. Y. 164, 88 Am. Dec. 248; State v. Railroad Co., 29 Fla. 590, 10 South. 590; Portland & W. V. R. Co. v. Portland, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299; Chicago & W. I. R. Co. v. Dunbar, 100 Ill. 110; City of Council Bluffs V. Railway Co., 45 Iowa, 358, 24 Am. Rep. 773; People v. Kerr, 27 N. Y. 188; Daley v. St. Paul, 7 Minn. 390 (Gil. 311); CITY OF PHILADELPHIA v. FOX, 64 Pa. 169.

71. The corporate affairs of a municipality must be transacted at a corporate meeting of the members of the governing body, duly convened at the stated or notified time and place, a quorum being present, and a majority thereof expressly favoring the action taken.

The corporate meeting in the American municipality is a meeting of the governing body established by law, usually consisting of aldermen or councilmen, and called the city council. In some states it is composed of two parts, like our Congress and legislatures, and called aldermen and councilmen, resembling senators and representatives. Meetings are of two kinds, stated or regular, and called or special; the stated meeting being fixed in time and place by charter, ordinance, or usage; the called meeting, one specially convened in emergency.1

Notice.

Of a stated meeting every member has due notice by the statute, rule, or usage under which it is held; 2 but of the

11 Dill. Mun. Corp. § 285.

2 Fitzgerald v. Railway Co., 24 R. I. 201, 52 Atl. 887; Willc. Mun. Corp. § 59.

called meeting reasonable notice of the time and place is required to be given, if practicable, to every member of the governing body. If extraordinary business is to be transacted, then notice must also be given of its nature, but not so of ordinary municipal affairs. Actual presence of a member not protesting at a called meeting is equivalent to notice. All members must be present or notified to make a valid special meeting. The notice must be personally served, if practicable, upon every member of the governing body, excepting only those who are absent from the state or whose whereabouts is unknown. Unnotified members who are actually present may avoid the presumption of notification by protesting against the meeting for want of notice."

Quorum.

A majority of the body constitute a quorum, unless it is otherwise provided by law. A quorum is competent to trans

81 Dill. Mun. Corp. § 286; Lord v. Anoka, 36 Minn. 176, 30 N. W. 550.

4 Whitney v. New Haven, 58 Conn. 450, 20 Atl. 666; Wille. Mun. Corp. 74; Dill. Mun. Corp. § 264.

5 In the sections above cited Judge Dillon gives the provisions of the English Municipal Corporations Act on the subject of meetings and notice. The original Reform Act of 1835 is a monument to the wisdom, patriotism, and legislative skill of the English Bar; and the Consolidation Act of 1882 is the common resort of legislators, judges, and authors as the fountain of modern municipal law. See Moore v. Perry, 119 Iowa, 423, 93 N. W. 510; State v. Smith, 22 Minn. 218; Magneau v. Fremont, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 786, 27 Am. St. Rep. 436; Shaw v. Jones, 7 Ohio Dec. 453, 4 Ohio N. P. 372; Schofield v. Tampico, 98 Ill. App. 324.

Lord v. Anoka, 36 Minn. 176, 30 N. W. 550; PEOPLE v. BATCHELOR, 22 N. Y. 128.

City of Knoxville v. Water Co., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888; State v. Kirk, 46 Conn. 395; Lewick v. Glazier, 116 Mich. 493, 74 N. W. 717.

8 Lord v. Anoka, 36 Minn. 176, 30 N. W. 550. Cf. Mitchell County Sup'rs v. Horton, 75 Iowa, 271, 39 N. W. 394.

Heiskell v. Baltimore, 65 Md. 125, 4 Atl. 116, 57 Am. Rep. 308; Barnert v. Paterson, 48 N. J. Law, 395, 6 Atl. 15; City of Benwood

act corporate business,10 and a majority of such quorum is sufficient to take any lawful action, or make an election,11 unless the law governing the corporation requires a greater number. Thus, if the body be composed of nine, then five make a lawful meeting and three of these may pass any ordinance or resolution, or commit the corporation to legal obligation.12

If the governing body is composed of two parts, these rules will apply to each separate part.

Mayor.

The executive head of the municipality is the mayor, who is generally also a member of the governing body, and presides over it ex officio.18 But in the larger cities his functions are purely executive,1 and the presiding officer is another person, either chosen by the members from their own number, or elected by the voters of the corporation to that special office.15 In those municipalities which are called by the name "borough," the executive head is called a burgess in Pennsylvania, and in Connecticut a warden. These correspond to the mayor

V. Railway Co., 53 W. Va. 465, 44 S. E. 271; Williams v. Brace, 5 Conn. 190. But where the council consists of six members, with the mayor as presiding officer, the mayor and three of the councilmen do not constitute a quorum, and their acts are void. City of Somerset v. Banking Co., 109 Ky. 549, 60 S. W. 5, 22 Ky. Law Rep. 1129. See State ex rel. City of Carthage v. Milling Co., 156 Mo. 620. 57 S. W. 1008.

10 Mueller v. Egg Harbor, 55 N. J. Law, 245, 26 Atl. 89; Labourdette v. Municipality, 2 La. Ann. 527; Hutchinson v. Belmar, 61 N. J. Law, 443, 39 Atl. 643.

11 State v. Deliesseline, 1 McCord (S. C.) 52; Cadmus v. Farr, 47 N. J. Law, 208. Some cases rule that assent of a majority will be presumed. See Collopy v. Cloherty (Ky.) 39 S. W. 431.

12 But if the body consist of twelve councilmen, seven is a quorum, and four may pass an act. See Wheeler v. Commonwealth, 98 Ky.

59, 32 S. W. 259.

13 Elliott, Mun. Corp. § 255.

14 Jacobs v. San Francisco, 100 Cal. 121, 34 Pac. 630; Cochran v. McCleary, 22 Iowa, 75.

15 State v. Kiichli, 53 Minn. 147, 54 N. W. 1069, 19 L. R. A. 779.

of an ordinary municipality. These boroughs exist in three of the United States: Connecticut, Pennsylvania, and New Jersey, and formerly in Minnesota.

The mayor's functions are prescribed in the charter, and differ in various municipalities. In some of them, as the executive head of the corporation, he possesses the veto power,16 in others the appointing power, and yet in others both of these; 17 in some, as the presiding officer, he has power to cast only the deciding vote in case of tie; 18 in others his functions and duties are the same as those of any other member of the board.19 The old common-law rule that the mayor was an integral part of a municipal corporation, and his presence necessary to a valid corporate meeting, does not prevail in America. 20 When he is absent from the city his office may be supplied by a pro tem. election from among the members of

16 Elliott, Mun. Corp. § 208. A city cannot by ordinance confer a greater power upon its mayor than that given by charter. Union Depot & R. Co. v. Smith, 16 Colo. 361, 27 Pac. 329.

17 People v. McAllister, 10 Utah, 357, 37 Pac. 578; People v. Leavy, 47 App. Div. 97, 62 N. Y. Supp. 161. In many municipalities the appointments of officers are made on the nomination of the mayor and confirmation of the council. O'Brien v. Thorogood, 162 Mass. 598, 39 N. E. 287; Bakely v. Nowrey, 68 N. J. Law, 95, 52 Atl. 289; Armstrong v. Whitehead, 67 N. J. Law, 405, 51 Atl. 472; Kip v. City of Buffalo, 7 N. Y. Supp. 685; O'Connor v. Walsh, 83 App. Div. 179, 82 N. Y. Supp. 499.

18 LAWRENCE v. INGERSOLL, 88 Tenn. 52, 12 S. W. 422, 6 L. R. A. 308, 19 Am. St. Rep. 870; People v. Rector, 48 Barb. (N. Y.) 603; Launtz v. People, 113 Ill. 137, 55 Am. Rep. 405; People v. Wright, 30 Colo. 439, 71 Pac. 365; Harris v. People (Colo. App.) 70 Pac. 699; People v. Bresler, 171 N. Y. 302, 63 N. E. 1093; Cate v. Martin, 70 N. H. 135, 46 Atl. 54, 48 L. R. A. 613; City of Somerset V. Smith, 105 Ky. 678, 49 S. W. 456; State v. Yates, 19 Mont. 239, 47 Pac. 1004, 37 L. R. A. 205; Hecht v. Coale, 93 Md. 692, 49 Atl. 660; Bousquet v. State, 78 Miss. 478, 29 South. 399; Ott v. State, 78 Miss. 487, 29 South. 520; State v. Mott, 111 Wis. 19, 86 N. W. 569.

19 1 Dill. Mun. Corp. § 270.

20 Martindale v. Palmer, 52 Ind. 411.