by the city in its capacity as an agent of the state the authority of the state is from the nature of the relation between it and the city, essentially supreme, in the absence of constitutional limitations. The rule of law is well established that municipal corporations have no authority to make contracts for the discharge of a purely public governmental duty. Such governmental functions and powers must be left free and untrammeled so that they may be exercised for the benefit of the citizens as the emergencies may arise.1 A city for example cannot make a contract with the owner of a building to put out a fire therein and then require him to pay for such service, nor can it expose itself to liability if it fails to put out the fire with regard to which it has attempted to make the contract. The municipality cannot abridge its legislative power by contract. The case of Brick Presbyterian Church vs. City of New York 2 states the reason for this rule of law. The action in the case was for breach of covenant for the quiet enjoyment of premises which the defendant city had leased to the plaintiff for church and cemetery purposes. After making the lease and pursuant to a statute the city by ordinance prohibited the use of such premises for a cemetery. In refusing relief on the ground that the city had no power to limit its legislative discretion by covenant the court said: "Sixty years ago, when the lease was made, the premises were beyond the inhabited parts of the city. They were a common; and bounded on one side by a vineyard. Now they are in the very heart of the city. When the defendant covenanted that the lessees might enjoy the premises for the purposes

1 Penley vs. City of Auburn, 85 Me., 278; Hamilton vs. City of Shelbyville, 6 Ind. App., 538.

25 Cowen, 538.

of burying their dead, it never entered into the contemplation of either party, that the health of the city might require the suspension or abolition of that right."

In the case of Crowder vs. Town of Sullivan,1 the court states this principle of the inability of the city to contract with reference to its public or governmental duty by saying: "A private corporation that obtains a license to use the streets of a municipality takes it subject to the power of a municipality to enact a general ordinance; for a governmental power such as that exercised in enacting police regulations cannot be surrendered or bartered away even by express contract." Again in Snouffer vs. Cedar Rapids & M. C. Ry. Co.,2 the court expresses this well established principle of law to the effect that, "in the absence of statutory authority, any contract or agreement, whether in the form of an ordinance or otherwise, which directly or indirectly surrenders or materially restricts the exercise of a governmental or legislative function or power, may at any time be terminated or annulled by the municipality."

3

But if the municipal corporation owns buildings and equipment and has employed men to discharge its public or governmental duties which do not require the entire service of such properties or men, it may contract for their use for private purposes. The courts generally permit this diversion of forces, lawfully employed by the city for the public service, to the performance of private work under contract but only to the extent that there is a surplus of such forces. This privilege of subletting such excess properties is given by the courts in the absence of express statutory authority for the purpose of saving the loss that would result from their non-user. But authority must al

1 128 Ind., 486.

3 The Maggie P, 25 Fed., 202.

2 92 N. W., 79.

ways be found for the employment of these forces and the acquirement of the equipment for serving the public so that their use for private purposes is only temporary and incidental. A town, having in its public buildings rooms which it had the authority to build as a part of such structures and which are not needed for public purposes for the time being, is not obliged to let them stand idle but may realize revenue from renting them for private purposes.1

The case of Pikes Peak Power Co. vs. City of Colorado Springs, offers a good statement of this rule of law, together with the reason upon which it is founded: "But it is equally true that municipalities and their officers have the power and use of all public utilities under their control for the benefit of their cities and citizens, provided always that such application does not materially impair the usefulness of these facilities for the purpose for which they were primarily created. . . . Where a city has had legislative authority to erect a dam for the purpose of providing waterworks for the city, it might lawfully lease for private purpose any excess of water not required for its waterworks. This is a just and reasonable rule. It is a rule not inconsistent with any principle of law or equity and in accord with that good sense and good business principles which recognize as a public good the growth of two blades of grass where but one grew before, and the conversion of waste to use."

Having in mind then, this distinction of the two capaci

1 French vs. Inhabitants of Quincy, 3 Allen, 9. The same principle was recognized in the case of George vs. School District, 6 Metc., 497, where the court upheld an agreement for the erection of a second story for a hall which was intended only for the occasional use of the school. To the same effect see Riverside, etc. Co. vs. City of Riverside, 118 Fed., 736.

2 105 Fed., 1.

ties in which municipal corporations may act-the one in which, as an arm of sovereignty or an agent of the state, it is charged with legislative and governmental powers; and the other in which it is a property holder and conducts a business enterprise for the private advantage of the city and its citizens, it should be remembered that this discussion is concerned chiefly with the latter division of the subject. The powers of the municipality in its former capacity are well defined and strictly limited by the statutory provisions granting them. There is little or no opportunity here for invoking the doctrine of liberal construction nor for extending its sphere of activity by the doctrine of implied powers. It is the duties of the sovereign that are to be performed in the manner provided by law and its interests alone are to be considered.

CHAPTER III

CONSTRUCTION OF MUNICIPAL CHARTERS

THE rule of law is well established to the effect that the discretion of municipal corporations, within the sphere of their powers and particularly their private powers, is not subject to judicial control, except in cases where fraud is found or where the power or discretion is being grossly abused to the oppression of the citizen.1 In its capacity as a business organization the powers conferred on a municipal corporation are for its own special interest and advantage. The interest of the state is only secondary, and the main purpose is to benefit the particular locality incorporated and its citizens. Considering this as the chief purpose in the creation of such corporations the courts favor the exercise of the fullest discretion in carrying out the powers granted which would be consistent with the general object of the grant, and the best interests of the grantee.2

In the case of City of Vincennes vs. Citizens' Gas Light Co., this rule of law is laid down as follows: "The making of contracts for the supply of gas or water is a matter, delegated to the governing power of municipalities, to be exercised according to their own discretion; and in the ab

1 The City of Valparaiso vs. Gardner, 97 Ind., 1; Atlantic City Waterworks Co. vs. Atlantic City, 6 Atl., 24; Rockerbrant vs. Madison, 9 Ind. App., 227; City of St. Paul vs. Laidler, 2 Minn., 190.

2 Sun Publishing Ass'n vs. Mayor, 152 N. Y., 257; The City of Bridgeport vs. The Housatonic Ry. Co., 15 Conn., 475.

3 132 Ind., 114, 126.