stantly suggested in connection with a treatment of the subject of public highways and parks in previous sections.1283 The state or its subordinate agencies to which has been expressly granted. the power may, also, so it has been held in a few extreme cases, acquire property which it holds, possesses and uses in a private or proprietary sense. Its control or power of disposition over this property is limited by the same rules which apply to ordinary private ownership.1284 It seems to the author unsound and illogical that a governmental agent should be permitted to act in a dual capacity. It clearly should not engage in enterprises that long experience and conservative thought have regarded as private in all their essential characteristics and further undesirable for governmental action because of its consequent disas terous effect upon individual initiative and thrift. § 936. Limitations on power of disposition. A public corporation which has acquired property as a trustee for the public cannot, as already stated, act in such a manner as to deprive the public or its individual members of their personal or collective rights in the use of that property. The public corporation acts solely as a trustee; the community is regarded as a cestui qui trust and action inconsistent with or contrary to this relation will be regarded as illegal.1285 The most frequent appli Council of New Shoreham, 21 R. 1283 See §§ 423 et seq., 733, ante. 1284 Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319; Cummings v. City of St. Louis, 90 Mo. 259. 1285 Marine Ins. Co. v. St. Louis, I. M. & S. R. Co., 41 Fed. 643; McCord v. Pike, 121 Ill. 288, 12 N. E. 259; Union Coal Co. v. City of La Salle, 136 Ill. 119, 26 N. E. 506, 12 L. R. A. 326; State v. Hart, 144 Ind. 407, 43 N. E. 7; Brockman v. City of Creston, 79 Iowa, 587, 44 N. W. 822; Roberts v. City of Louisville, 92 Ky. 95, 17 S. W. 216, 13 L. R. A. 844. Injunction will lie to restrain illegal action in this respect. Methodist Episcopal Church v. City of Hoboken, 33 N. J. Law, 13. Local authorities have power to regulate the public use of dedicated lands but this right is vested in them only as representatives of the public. They cannot sell lands so dedicated nor lease or extinguish the uses for which they were dedicated neither can they employ them in any way different from the cation of this rule is in connection with the acquirement, use and disposition of public highways and public grounds.1286 A public corporation may, as already stated, in previous sections,1287 acquire property for certain public or quasi public uses by gift from private individuals to be used for an especial purpose. The gift may be accompanied by conditions in respect to the use of the property thus donated and these conditions act, necessarily, as a legal restraint upon the power of the public corporation to dispose or alienate it or any interest therein.128 The manner in which it acquired whether by purchase, prescription, dedication or through an exercise of the power of eminent domain will again. act as a restraint or limitation upon a complete and full power of alienation or disposition on the part of the public corporation.1289 Statutory authority. Public property may be acquired through the exercise of either an authority expressly granted or one which it may possess through the doctrine of implication. The grant of the express power to acquire property in many instances is purposes for which they were dedicated. New Jersey & N. E. Tel. Co. v. Jersey City Fire Com'rs, 34 N. J. Eq. (7 Stew.) 117; Wenk v. City of New York, 69 App. Div. 621, 75 N. Y. Supp. 1135 affirming 36 Misc. 496, 73 N. Y. Supp. 1003; City of Pittsburg v. Epping Carpenter Co., 29 Pittsb. Leg. J. (N. S.) 255; Lewis v. City of San Antonio, 7 Tex. 298; Llano County V. Knowles (Tex. Civ. App.) 29 S. W. 549; City of Cleburne v. Gulf, C. & S. F. R. Co., 66 Tex. 457, 1 S. W. 342. See, also, §§ 815, 816, ante. 1286 People v. City of Albany, 4 Hun (N. Y.) 675. See, also, §§ 815, 816, ante. 1287 See §§ 722 and 733, ante. 1288 See § 733. Douglas v. City Council of Montgomery, 118 Ala. 599, 24 So. 745, 43 L. R. A. 376; Prescott v. Edwards, 117 Cal. 298, 49 Pac. 178. An offer to dedicate for several years may be revoked. McCullough v. Board of Education of San Francisco, 51 Cal. 419; Warren v. Lyons City, 22 Iowa, 351, West Carroll Parish v. Gaddis, 34 La. Ann. 928; Inhabitants of Bucksport v. Spofford, 12 Me. 487; Plumb v. City of Grand Rapids, 81 Mich. 381, 45 N. W. 1024; Patrick v. Y. M. C. A. of Kalamazoo, 120 Mich. 185, 79 N. W. 208; Goode v. City of St. Louis, 113 Mo. 257, 20 S. W. 1048; Rowzee v. Pierce, 75 Miss. 846, 23 So. 307, 40 L. R. A. 402. Property dedicated for public use as an ornamental part reverts to the original donors upon the abandonment by the public authorities for that purpose. Board of Education of Van Wert v. Inhabitants of Van Wert, 18 Ohio St. 221; Harris County v. Taylor, 58 Tex. 690. But see Warren County Sup'rs v. Patterson, 56 Ill. 111; Travis County V. Christian (Tex. Civ. App.) 21 S. W. 119. accompanied by direct grant of the right of disposition 1200 and property which has been acquired through the exercise of an implied power may also by the authority of the state be disposed of. The power of disposition in respect to the larger part of public property must be derived from the sovereign,1201 and the principle applies that in cases of doubt as to the existence of the right, this doubt will be determined against the power rather than in its favor.1292 § 937. Mode of disposition; sale or lease. As stated in the preceding section, the authority to dispose by sale of public property may be directly granted by the state in those cases where the action is legally possible. The power must be derived from the state 1293 and by its terms it may be either 1289 Brooklyn Park Com'rs V. Armstrong, 3 Lans. (N. Y.) 429; Portland & W. B. R. Co. v. City of Portland, 14 Or. 188, 12 Pac. 265. See §§ 722 et seq., 739 et seq., and 743 et seq., ante. 1290 Wells v. Pressy, 105 Mo. 164, 16 S. W. 670; Taylor v. Hoya, 9 Tex. Civ. App. 312, 29 S. W. 540. 1201 Cohas v. Raisin, 3 Cal. 444; Fiudla v. City & County of San Francisco, 13 Cal. 534; Hart v. Burnett, 15 Cal. 530; Denver & S. R. Co. v. Denver City R. Co., 2 Colo. 673; Hurd v. Hamill, 10 Colo. 174, 14 Pac. 126. A public corporation may be liable to a purchaser for failure of title. See, also, as holding the same, Nelson v. Hamilton County, 102 Iowa, 229, 71 N. W. 206, and Sanders v. Sexton, 36 Misc. 574, 73 N. Y. Supp. 1095; Lyman v. Gedney, 114 Ill. 388; Harney v. Indianapolis, C. & D. R. Co., 32 Ind. 244; Harrison v. Palo Alto County, 104 Iowa, 383, 73 N. W. 872; Millsaps v. Town of Monroe, 37 La. Ann. 641; Congregational Soc. in Lanesborough v. CurAbb. Corp. Vol. III — 14. tis, 39 Mass. (22 Pick.) 320; City of Minneapolis v. Janney, 86 Minn. 111, 90 N. W. 312; Brooklyn Park Com'rs v. Armstrong, 3 Lans. (N. Y.) 429; City of Cincinnati v. Dexter, 55 Ohio St. 93, 44 N. E. 520; Thompson v. Nemeyer, 59 Ohio St. 486, 52 N. E. 1024. A municipal corporation has power to sell its gas plant under the power to purchase real estate and other property for the use of the corporation and to sell the same as given in Rev. St. § 1692, subd. 34. City of Ogden City v. Bear Lake & River Water-works & Irr. Co., 16 Utah, 440, 52 Pac. 697, 41 L. R. A. 305; Callvert v. Windsor, 26 Wash. 368, 67 Pac. 91. See, also, first paragraph in following section with authorities cited. 1292 Knight v. Haight, 51 Cal. 169;; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247, 36 L. R. A. 798; Atherton v. Johnson, 2 N. H. 31. 1293 Fidelity Trust & Guaranty Co. v. Fowler Water Co., 113 Fed. 560. A municipal corporation has no power to encumber its property what can be termed an imperative authority or a discretionary one. These phrases are almost self-explanatory. In the case of the former, certain action is made obligatory by the state. In the case of the latter, the public authorities are vested with a discretionary power, to be exercised or not, as their good judgment and discretion may determine; the necessity, desirability or feasibility of a disposition of public property being the determining elements in arriving at an exercise of the power thus granted.1294 Where the power of sale is discretionary, the question of consideration is also for the authorities to determine.1295 Manner of sale. Where authority is granted for the sale of public property, the manner of the sale may be prescribed by statute in detail and certain formalities and preliminary action by mortgage in the absence of express legislative authority, and, further, is without power to purchase and hold property subject to a mortgage. Bartlett v. Crawford, 36 Ark. 637; City of Oakland Water Front Co., 118 Cal. 160, 50 Pac. 277; McCaslin v. State, 44 Ind. 151. The authority to sell certain lands is authorized under a law entitled "an act to establish a house of refuge for juvenile offenders." Shannon v. O'Boyle, 51 Ind. 565. County commissioners have power to sell shares of stock owned by the company in a railroad company. City of Terre Haute v. Terre Haute Water-works Co., 94 Ind. 305; Page County v. American Immigrant Co., 41 Iowa, 115. Considering the pow er of a county in Iowa to sell swamp lands. Clark v. City of Providence, 16 R. I. 337, 15 Atl. 763, 1 L. R. A. 725; Mowry v. City of Providence, 16 R. I. 422, 16 Atl. 511; Huron Water-works Co. V. City of Huron, 7 S. D. 9, 62 N. W. 975, 30 L. R. A. 848. A municipality cannot dispose of its waterworks without special legislative author ity. See last paragraph of preceding section. 1294 Morgan v. Johnson (C. C. A.) 106 Fed. 452; People v. Middleton, 14 Cal. 540; Ellis v. Commissioners of Funded Debt, 38 Cal. 629; Coopers v. City of San Jose, 55 Cal. 599; Martin v. Townsend, 32 Fla. 318, 13 So. 887; Lyman v. Gedney, 114 Ill. 388, 29 N. E. 282; Inhabitants of Nobleboro v. Clark, 68 Me. 87; Bowlin v. Furman, 28 Mo. 427; Cummings v. City of St. Louis, 90 Mo. 259, 2 S. W. 130; Wright v. Town of Victoria, 4 Tex. 375. 1295 Roberts v. Northern Pac. R. Co., 158 U. S. 1, affirming 42 Fed. 734; distinguishing Whiting v. Sheboygan & F. du. L. R. Co., 25 Wis. 167; McConnell v. Hutchinson, 71 Iowa, 512, 32 N. W. 481; Spitzer v. Runyan, 113 Iowa, 619, 85 N. W. 782; City of Minneapolis v. Janney, 86 Minn. 111, 90 N. W. 312; Schanck v. City of New York, 10 Hun (N. Y.) 124; City of Cincinnati v. Dexter, 55 Ohio St. 93, 44 N. E. 520; State v. Taylor, 107 Tenn. 455, 64 S. W. 766. But see Adamson v. Nassau Elec. R. Co., 12 Misc. 600, 33 N. Y. Supp. 732. required.129 A sale may only be legally made after public advertisement and consequent sale to the highest bidder 1297 or af firmative action by voters.1 1298 Where a disposition of public property is the consequent result of certain authority or of specific municipal action, the rule of strict construction will apply and the application of this rule, as it is well known, operates as a limitation upon the exercise of an alleged right.1299 That action 1296 Morgan v. Johnson (C. C. A.) 106 Fed. 452. Where no mode is prescribed by statute the adoption of a motion by a city council authorizing and directing the conveyance of property is as efficacious as the passage of an ordinance, Gordon v. City of San Diego, 101 Cal. 522, 36 Pac. 18, affirming (Cal.) 32 Pac. 885; City of Macon v. Dasher, 90 Ga. 195, 16 S. E. 75. Where a deed is regular on its face and executed under the appropriate seal by the proper authorities, a presumption exists in favor of its validity and in favor of the grantee. McCord v. Pike, 121 III. 288, 12 N. E. 259; City of Chicago v. English, 80 Ill. App. 163. The mayor of a city is the proper officer to execute a lease. Platter V. Elkhart County Com'rs, 103 Ind. 360. An order by county commissioners to sell county property is a ministerial act. Chouquette v. Barada, 33 Mo. 249. A deed executed under authority of law by a municipal corporation is presumed to have been executed in pursuance thereof. City of New York v. Hart, 16 Hun (N. Y.) 380; Straub v. City of Pittsburg, 138 Pa. 356, 22 Atl. 93; Ferguson v. Halsell, 47 Tex. 421; State v. Forrest, 7 Wash. 54, 33 Pac. 1079. 1297 Buckner v. Hart, 52 Fed. 835; Thompson V. Alameda County Sup'rs, 111 Cal. 553; McPheeters v. Wright, 110 Ind. 519, 10 N. E. 634. The presumption exists in Indiana that under its laws after a lapse of thirty years a sale of school lands is regularly made. Nicholasville Water Co. v. Board of Councilmen, 18 Ky. L. R. 592, 36 S. W. 549; Coquard v. School Dist., 46 Mo. App. 6; City of New York v. Sonneborn, 113 N. Y. 423; Kerr v. City of Philadelphia, 8 Phila. (Pa.) 292; Wilson v. Gabler, 11 S. D. 206. But see Newbold v. Glen, 67 Md. 489, 10 Atl. 242. Where property was sold without advertising as required by law and it was held that, it being sold for its full value, in the absence of fraud, the sale was valid and vested a good title to the purchaser. 1298 Douglas County v. Keller, 43 Neb. 635, 62 N. W. 60. But a purchaser is not chargeable with constructive notice of the fact that the proposition to sell such property was in fact defeated by a vote of the electors. Gumpert v. Hay, 202 Pa. 340, 51 Atl. 968. Affirmative action of two successive grand juries required. 1299 Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319. The doctrine of estoppel applies to a public corporation in all things pertaining to its proprietary rights the same as natural persons. Smith v. Morse, 2 Cal. 524; Hunnicutt v. City of Atlanta, 104 Ga. 1, 30 S. |