A Treatise on the Law of Municipal Corporations, Volume 2

Howard Strickland Abbott

Keefe-Davidson Company, 1906 - 3045 pages

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CHAPTER I	967

Power to impose	970

As based upon power of taxation	974

Limitations upon the power	977

A license fee or tax should not discriminate	978

Delegation of the power for exercise by municipal corporations	982

By what body exercised	984

The power to license the sale of intoxicating liquors	988

Condition of the candidate	1496

Act of candidate	1499

Right to change qualifications	1503

Limitations upon legislative power	1505

Liability of sureties	1517

Liability on official bonds the less strict rule	1522

Liability of the surety the element of time considered	1524

625	1526

Nature of license	990

License fee when recovered	992

License fee how payable and use of moneys 407 Specific illustrations of the imposition of license fees	994

As affected by the interstate commerce clause	1010

Road or poll	1017

THE DISBURSEMENT OF PUBLIC REVENUES 410 In general 411 The distribution of public moneys in different funds 412 The appropriation of...	1020

Performance of contract for water supply 470 Performance and enforcement of contract for water supply 471 Estoppel 472 Public expenditures in c...	1021

Limitations of amount for particular purposes	1034

Purposes for which public moneys may be used	1035

Limitations found in statutory or charter provisions	1036

Same subject	1037

Same subject necessary governmental expenses	1047

Statutory costs	1050

Public buildings	1053

The leasing repair and furnishing of public buildings 422 Local or internal improvements	1055

Public highways	1057

Opening or construction of a highway or street	1059

a Cost of constructing or opening b Time and manner of opening	1063

c Location and construction of highways	1065

d Change alteration or extension of highway 425 Agency of construction	1066

The power to grade highways	1067

To pave streets	1073

The repair of highways 429 The general improvement of highways	1074

Protest by property owners	1079

Canals 431 Construction of bridges	1080

Cost	1085

Bridges their regulation and control	1089

Their maintenance and repair	1090

The construction and repair of sidewalks	1095

Public parks and boulevards	1098

Construction of sewers	1101

The authority	1103

Nature of the power	1105

Proceedings for construction	1107

Assessments for payment of costs	1109

The location	1110

Construction	1113

Sewer connections	1115

The construction of drains	1116

Legislative authority	1117

The authority by whom when and how executed	1119

Drainage or irrigation districts	1123

Proceedings the petition and its averments	1127

The appointment of commissioners or viewers	1132

X	1133

Report of commissioners of reviewers 451 Damages and benefits	1135

Assessments and methods of apportionment	1136

Appeals	1140

Construction Maintenance 455 Expenditures in connection with a supply of water	1141

a Character of the power a continuing one and to be ex pressly granted	1145

b The power a discretionary one 456 Manner of exercise of the power	1148

Purchase of water plant already constructed	1155

Extra territorial authority	1159

Sale or lease of municipal plant	1163

The power to construct includes what	1164

a Use of streets	1165

b Limitations upon the power to construct	1167

The implied power to furnish water or to purchase apparatus for extinguishing of fires	1169

The acquisition of a water supply	1170

Exercise of the power of eminent domain	1175

Protection of water supply	1177

Officials authorized to act for the municipality	1178

Form of contract and manner of making	1179

The right to delegate the construction to private enterprise 467 Cost and manner of payment	1185

Water rentals and regulations	1190

TAXATION	1193

a Regulations b Water rentals charged by private plants	1196

Charges for use of such facilities	1216

Power to sell or lease wharfage privileges	1217

Payment of debts	1218

Public education and health 481 Charities and corrections 482 Aid to railways	1219

Public investments	1225

Claims	1228

Basis of claim	1229

Authority for presentation	1235

Presentment	1236

Time of presentment	1237

Manner of presentment	1241

Audit and allowance of claims	1244

Time of allowance	1246

Rejection of claims and appeal	1250

Time and manner of payment Manner of payment	1253

By whom and to whom paid	1256

Claims enforcement by action	1258

Miscellaneous	1264

CHAPTER VII	1265

Commerce clause and the police power as exercised by the states 543 The impairment of contract obligations	1266

Membership	1271

Municipal councils	1275

Council committees	1276

Town meetings 501 Classification of legislative bodies	1277

Members of municipal councils	1279

Organization of legislative bodies	1280

Qualifications of members	1281

Meetings when held	1283

Place of meeting	1285

Quorum	1289

Veto	1290

Legislative proceedings their character review of motive a Proceedings	1292

b Presumption of law in favor of validity	1293

c Action how taken 509 Rules of order	1294

Elections	1295

Limitations upon the power of appointment or election	1297

Powers of legislative bodies	1298

Municipal legislation	1299

Ordinances	1302

Resolutions	1303

Resolutions continued	1304

Further distinctions	1305

Ordinances when necessary	1306

Power to pass a When exercised	1309

b Where found 519 The power to pass peace ordinances so called	1311

Limitations upon this power	1312

Limitations upon the general power to pass Presumption of validity	1315

Form of ordinance	1317

The repealing clause is frequently omitted	1318

Title	1321

Council and quorum	1322

Mode of passage	1323

Ordinances mode of passage	1326

Veto power	1327

Ordinances publication	1329

language and medium	1331

Time of publication	1332

Character of ordinances	1333

Miscellaneous matters in connection with publication of ordi nances	1334

Record	1335

Validity in respect to subjectmatter and general characteristics 535 Constitutional provisions	1336

Must not conflict with state laws or charters	1341

General characteristics	1343

Interstate commerce	1348

Definition of commerce	1349

Definition of to regulate 541 The taxing power of the state in connection with interstate com merce	1351

Definition of law	1356

Ordinances reasonable or unreasonable	1357

Tests of a reasonable ordinance Purpose for which passed Consistency with superior	1359

Same subject surrounding conditions 548 Amendment or repeal of legislative action	1360

Agency and time of repeal or amendment	1362

Restrictions upon the power to amend or repeal	1364

Effect of repeal	1365

Enforcement of ordinances	1366

Penalties for violation	1367

Mode of enforcing ordinances trial by jury	1370

Enforcement by civil action	1372

Pleading and procedure	1374

Appeal or review	1375

Defenses	1376

Validity by whom raised	1379

Validity how raised	1380

Ordinances on whom and what binding	1381

a Notice b Licenses	1382

Ordinances where operative	1383

Ordinances invalid in part	1385

Construction of ordinances	1386

Same subject continued	1388

When strictly construed	1389

Liberal construction when adopted	1390

EXECUTIVE 568 Introductory 569 Source of power 570 The governor and mayor 571 Police and fire boards 572 Highway officers	1391

Park and street boards	1408

County boards commissioners or supervisors	1411

Character of duties	1414

Character of duties continued	1416

Performance of duties	1417

Legal character	1418

Miscellaneous boards	1419

Powers generally	1424

Board action appeals from	1425

Introductory 583 Municipal courts 584 Power to organize 585 Jurisdiction civil 586 Criminal 587 Summary powers	1426

Qualifications of judges or jurors in municipal courts 589 Appeals	1440

Methods of procedure	1442

PUBLIC RECORDS 591 Public records 592 Right of access or inspection	1444

Custody	1450

594 Amendment of public records	1451

Municipal records as evidence	1452

CHAPTER VIII	1454

Legislative control	1456

Restrictions on legislative power	1460

Definition of public office Legislative executive and judicial officers	1462

Office distinguished from employment	1463

Public office how secured	1469

a Collateral attack on title to office b Estoppel	1472

Power to appoint	1473

Confirmatory action	1476

Appointments manner of making	1478

Classes	1480

To fill vacancies	1487

Public offices secured through election	1488

Eligibility of candidates for public office	1491

Qualifications	1493

Physical	1494

Mental	1495

New or additional duties Different offices or funds	1527

The right of action	1529

Parties	1531

TERMINATION OF OFFICIAL LIFE 629 Termination of official life 630 Official life terminated by legislative action	1532

Expiration of term of office	1534

Term of office uncertain The term of office considered with reference to its commence ment	1537

Resignation Abandonment of an office	1541

Holding an incompatible office	1542

Termination of official life through removal	1545

a Civil service or other provision	1548

b Distinctions between an office and employment	1549

c Dismissal from office or its abrogation not a removal 636 Right to a notice and hearing	1550

Cause for removal	1551

Removal for cause tribunal	1554

The proceedings	1555

Evidence	1556

Remedies in case of a wrongful removal	1557

Removal by impeachment	1558

THEIR POWERS DUTIES AND RIGHTS 643 Public officers their powers and authority Presumption in favor of proper exercise of powers 644 Titl...	1560

Rights of a public official 686 Compensation amount	1561

Official authority how exercised	1575

a Must be exercised in the name of the public b Must be exercised in the manner prescribed by law c Independence of official action	1577

Personal execution of official duties 655 Joint authority how exercised	1578

De facto officers a De facto officers definition	1580

b De jure officer and usurper defined	1583

Conditions under which a de facto officer may exist	1584

There must be a legal office	1586

a Possession of office b Collateral attack 659 Acts of de facto officers validity	1588

Rights of de facto officers to compensation	1591

De facto officer liability 662 Official acts corporate liability	1592

Contract liability Determination of conditions and circumstances	1593

Irregular exercise of power	1595

Contract liabilities	1597

Corporate liability for admissions of officers or employes	1598

Liability to the government or a public body	1600

Interest on public moneys 668 Personal liability of officers and agents contracts	1602

Clear intent 669 Torts	1603

Duty to whom	1604

Same subject continued duties owing an individual 672 The rule as to personal liability	1605

Liability depending upon character of duties whether imperative or discretionary	1606

No liability in case of discretionary duties	1607

Political and governmental or ministerial duties	1608

Ministerial duties personal liability of official	1610

Conditions under which ministerial officers incur a liability	1612

The rule of liability stated	1613

Ministerial duty definition	1614

What protection afforded ministerial officers	1617

Judicial officers personal liability	1619

Jurisdiction	1623

Distinction between superior and inferior judicial officers with respect to liability	1624

Quasi judicial officers	1625

Legislative and quasi legislative duties	1626

Freedom from arrest	1627

a When claims for extra compensation allowed b Two offices with one incumbent 687 Form of compensation salary	1633

Commissions	1636

Fees	1639

Fees itemized statements of services rendered	1640

Actual rendition of services	1641

Change of compensation during term of office	1643

Time and manner of payment 694 Compensation to whom payable	1647

Payment in case of sickness suspension or absence from office	1649

Unlawful removal or suspension 696 Right to reimbursement and indemnity	1650

Miscellaneous disbursements	1652

Accounts of public officers	1654

Agents and employes authority to hire	1655

Fire department power to organize	1657

Police department organization	1659

Qualifications of members 703 Suspension or removal of police officers and	1661

Tribunal and hearing	1663

Causes for removal	1666

Neglect of duty	1667

Compensation Irregular suspension	1668

Pensions and beneficial funds	1669

Employment of members of the learned professions	1671

Special authority to employ	1672

Work included in regular duties 711 Concrete illustrations	1675

The employment of clerks	1677

Compensation of employes	1679

Compensation of public employes as affected by legislation	1681

Right of removal	1682

Limitations upon the right of removal civil service laws	1684

716a Constitutionality of civil service laws	1685

Removal or suspension for cause 716b Right of discharge limited by veteran acts	1688

SPECIAL ASSESSMENTS	1693

Other concrete illustrations of a taking 753 Annexation of land to a municipality not regarded as a taking 754 Right to labor or contract 755 The qua...	1694

ITS ACQUIREMENT 717 The acquirement of property by a public corporation 718 The acquirement in its capacity as a public corporation	1695

Power to acquire property in the capacity of a trustee	1699

Grants not sustained as being foreign to the objects for which public corporations are organized 720 Power to acquire in the capacity of a private cor...	1709

The location of property acquired	1712

Manner of acquirement by purchase a Acquirement by lease	1713

b Acquirement through grant or gift	1715

Property acquired through dedication	1716

Definition	1718

Statutory	1721

Commonlaw	1725

Who may dedicate	1727

The nature and requisites of dedication should be irrevocable	1729

Intent necessary to a dedication	1732

Intent as shown by the filing of a map or plat	1735

Intent as evidenced by the sale of property with reference to a plat or survey	1736

Intent as shown by other acts of the owner	1742

The intent to dedicate as evidenced by user	1747

Nonuser as evidence against dedication	1749

The estate acquired	1751

Commencement of public	1763

Title to alluvium and accretions	1764

Acceptance of lands dedicated necessary	1765

How shown	1767

Time of acceptance	1770

Time of user	1771

Acceptance usually a question for a jury 739 Acquirement of property by prescription	1772

Prescription what necessary	1774

a Character of the use and possession	1775

b User must be continuous	1778

Physical extent of prescriptive right Evidence	1780

Acquirement of prescriptive rights against persons under dis ability	1782

Property acquired through eminent domain	1783

Purposes for which property may be acquired	1786

Eminent domain definitions	1787

The power exercised by what agencies	1790

Power must be expressly given	1794

Manner of the exercise of the power	1795

What can be taken	1797

Concrete illustrations	1799

Waters and riparian rights	1800

Highways	1826

Parks and pleasure grounds 761 Bridges ferries and canals	1828

Public buildings	1830

Municipal improvements 763 Works for irrigation and drainage purposes	1831

Public cemeteries 764 Definition of a taking	1834

Constitutional provisions	1837

Eminent domain proceedings	1838

Attempt to agree	1840

Parties to the proceedings	1841

Petition	1843

Notice when necessary	1845

Service of notice	1847

Objections Waiver or loss of right to object	1851

Appointment of viewers	1852

Report of viewers and orders establishing highways	1856

The tribunal	1858

Hearing	1859

Report of award 778 Its recitals	1862

Description of improvement	1863

a Description of property taken b Owners names 780 Award of damages	1864

Conclusiveness of report or award and the doctrine of collateral attack	1865

Filing of the award or report	1866

Review	1867

Appeals	1868

Appeal from a report on questions other than those of damages	1869

Appeal from award or report on damages awarded	1870

Time of appeal	1871

The question of compensation	1873

Medium of payment	1876

Time of payment a Payment before entry	1877

b Payment after entry	1878

Measure of damages	1883

Measure of damages when a part only is taken	1884

a The measure of damages when property is injuriously af fected but no part taken b Special damages only considered	1888

The question of benefits	1889

Discontinuance of proceedings II ITS CONTROL AND USE 795 Generally	1893

Investment of funds	1896

The control of public highways	1897

Control discretionary	1898

Legislative control	1899

Delegation of power to control and regulate the use of public property	1901

Power as delegated to municipal corporations	1902

Delegation of power to public and quasi public corporations 803 The extent of powers granted to delegated agencies	1904

Extent of power granted implied powers	1905

Same subject fundamental legislative limitations	1906

a Contract obligation b Special and uniform legislation c Due process and the equal protection of the	1907

Extent of power limited by character of property	1908

The power to open repair and improve highways	1909

The power to pave a street	1911

Alteration of streets or highways	1912

Relocation of a road	1914

Difference in urban and suburban uses 810 Change of grade in a highway or street	1915

Statutory damages for change of grade	1924

Definition of grade A change of grade	1929

Damages recoverable	1930

Special benefits must be considered	1934

Unlawful change of grade	1935

Actual damages caused by a change of grade	1936

Diversion from a public or specific	1937

Control of property acquired by gift	1939

Rights of abutting owners	1940

Legislative control as modified by the abutters rights	1942

Extent of control a varying	1943

Abutters special rights lateral support 820 Same subject continued abutters right to light air and access	1945

Permanent obstructions structures and their adjuncts	1959

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Page 1396 - When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.‎

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Bibliographic information

Title	A Treatise on the Law of Municipal Corporations, Volume 2 A Treatise on the Law of Municipal Corporations, Howard Strickland Abbott
Author	Howard Strickland Abbott
Publisher	Keefe-Davidson Company, 1906
Length	3045 pages

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A Treatise on the Law of Municipal Corporations, Volume 2

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