§ 2306. In Pennsylvania.- If the county has no unappropriated moneys, a special statuItory execution authorized in Pennsylvania to be issued against counties must be paid “out of the first moneys that shall be received for the use of said county." Pollock v. Lawrence Co.,* 2 Pittsb. R., 137.

§ 2307. County commissioners are not responsible for a contempt in refusing to apply to the payment of a special statutory execution against the county moneys not actually in the treasury, being in fact unaccounted for by the predecessor of the treasurer. Ibid.

§ 2308. The high prerogative of taxation is confided to county commissioners, and the failure to exercise it by them or their predecessors is no legitimate answer to an execution. Ibid. § 2309. When current county expenditures exceed current income, and all cannot be promptly paid, to the vigilant must be given the first products of the treasury. Ibid.

§ 2310. A special statutory execution against a county operates as an injunction upon com. missioners, restraining them from drawing any warrant or making any payment for any purpose whatever, until the judgment upon which it was issued is satisfied, and no capricious application of public funds by county commissioners in the face of a debt solemnly adjudicated, and after notice of execution commanding its payment, can be held guiltless in the sight of the law. It will be punished by attachment for contempt by the court whose execution is so disregarded. Ibid.

§ 2311. Pollock recovered a judgment in the United States court for $1,811.30 against Lawrence-county, Pennsylvania, on which execution was issued under an act of the legislature of Pennsylvania of 1834, adopted by such court as part of its final process against counties. This writ was returned by the marshal as having been duly served upon the county commissioners and also upon the treasurer of the county of Lawrence. The commissioners failed to pay any portion of the judgment, whereupon Pollock petitioned the court, charging that at the date of the service of the writ "there were moneys in the treasury of said county, and subject to the order and warrant of said commissioners, to the amount of $5,800, unappropriated;" that since the said service "there has been received into the treasury, and subject to the warrant of the commissioners, a further sum of $2,000;" nevertheless, the said commis sioners "being minded to evade the payment of the said judgment and set at naught the process of this court, although often requested, have refused to pay, to the great wrong of the plaintiff and the contempt of this court." The petitioner prayed for a rule on the commissioners to show cause why an attachment should not issue against them according to law. The commissioners answered, admitting the service of the writ, and saying that at the date of such service "there were no unappropriated funds of said county under the power and control of these respondents, and for further answer they show that before the judgment in this case was obtained, and before these respondents knew that the said county would be liable to pay the debt for which it was rendered, the county commissioners of said county had made their estimates of the probable expenses of the said county for the ensuing year, and to the specific purposes embraced in said estimates, and, according to the laws of the state of Pennsylvania, all the revenues of the said county were appropriated." They further answered, "that the whole receipt of moneys which have come under the control and power of the respondents as the money of the county is $1,727.48, and these moneys were solely provided for the purposes of the county, incident to the public will and the administration of justice." Held, affirming that an answer should be neither evasive nor argumentative, that this answer was evasive in not stating the amount of money in the treasury at the date of the service of the writ, thus leaving the court to glean the amount from the statement of the treasurer; and that this answer was argumentative because, in supporting the allegation that there was no money "under their control," the answer construed the annual statement of the probable public expenditures to be a specific appropriation to each object. Ibid.

§ 2312. After the service of a mandamus execution upon county commissioners in Pennsylvania, the county treasurer has no authority to receive county orders of a date subsequent to the rendition of the judgment in payment of taxes, and thus divert the funds of the county from the appropriation of them made by law for the payment of the execution. Such payment of county orders by the treasurer is a contempt of the mandamus execution issued by the court, and punishable as such. Lout v. Allegheny,* 2 Pittsb. R., 412.

§ 2313. Act No. 1, of January, 1862, of the legislature of Pennsylvania, requiring county treasurers to receive county warrants in payment of taxes, does not repeal any of the provisions of the act of 1834, providing for mandamus execution against counties upon judgments rendered against them, nor can it relieve the treasurer from the proper application of the county funds in the order of their appropriation as previously made. Ibid.

§ 2314. Where a mandamus execution authorized by the statutes of Pennsylvania has been served upon county commissioners, it is their duty: (1) If there be any money in the treasurer's hands unappropriated, the exigencies of this writ require that the commissioners cause it to be paid to the party. (2) If there be not money enough in the treasury to satisfy the

whole judgment, it is their duty to pay it out of the first money received. (3) If the taxes of the current year are insufficient to pay the judgment and other expenses of the county, it is their duty to assess and collect on the next year sufficient for this purpose. (4) The judgment of the court is an appropriation of all the money in the treasury not already drawn or appropriated by previous county orders in payment of previous demands audited and allowed by the comptroller, and also of the first money thereafter received for the use of the county. Ibid.

§ 2315. A judgment was rendered upon interest coupons of certain railway aid bonds issued by Allegheny county, Pennsylvania. Upon such judgment a mandamus execution, authorized by statute, was issued, and, by the statutes of Pennsylvania, this execution was payable out of the first moneys unappropriated coming into the hands of the county treasurer. The county commissioners divided the liability of the county, past and prospective, for the coming year into two classes. They estimated the expenses of the coming year, including the interest on the funded debt intended to be paid, and laid a tax of five mills for this purpose, which was collected and paid in the usual way, Besides this, they assessed another tax of twenty-seven mills, which was appropriated to pay the debt on the railroad bonds and coupons. Held, that, by this scheme, the county commissioners nullified the law and set it at defiance. That the comptroller was bound to include the judgment upon which execution was issued against the county among the necessary expenditures; that the commissioners were bound to assess a tax sufficient to pay them, and that they had no authority to levy and assess two separate and distinct taxes, or to appropriate any specific portion to be paid out in preference to another. That the five mills and the twenty-seven mills could not thus be separated and distinguished; that the taxes assessed formed one general fund. Ibid.

§ 2316. The remedies provided by the act of April 15, 1834, of the legislature of Pennsylvania for enforcing judgments against counties and townships are not applicable to cities and boroughs. Oelrich v. Pittsburgh,* 2 Pittsb. R., 93.

§ 2317. The act of 1819, providing that the stock of any body corporate, owned by any individual or individuals, body or bodies corporate or politic, in his, her, its or their own name or names, shall be liable to be taken in execution and sold in the same manner as goods and chattels are liable in law to be so taken and sold, was not repealed by the act of 1836, directing the mode of levying upon stocks by attachment and fieri facias, and by another act of the same year, regulating the levy of execution against corporations, followed by sequestration. But municipal corporations are exempted from the operation of the acts last named. Ibid.

§ 2318. A levy of a writ of fieri facias upon stock held by the city of Pittsburgh, having been legally made, will not be set aside, and the marshal must proceed with the execution of such writ. Ibid.

V. STREETS.

SUMMARY Power to make by-laws is continuing, § 2319.— Changing grade, §§ 2320-2324Legal title in sovereignty, § 2321.-District of Columbia; liability for injuries, S$ 232523.8.- Delegation of power, § 2329.- Contract payable in bonds; ultra vires; remedy, § 2330.- Consent of abutting owners, § 2331.- Work must be done with care, § 2332; liability for consequential damages, §§ 2333, 2334.

§ 2319. A power to make by-laws and ordinances for the grading and leveling of streets, etc., is continuing, and is not exhausted by a single exercise. Goszler v. Corporation of Georgetown, § 2335-36.

§ 2320. An ordinance regulating a street grade is not a contract with property owners who have built in reference to such grade, and the grade may be subsequently changed by the municipal authorities. Ibid.

§ 2321. The legal title to streets in municipal corporations is in the sovereign, held in trust for the public. Smith v. Corporation of Washington, § 2337-39. See § 2368.

§ 2322. A charter authorizing a corporation to open and keep in repair streets, authorized it to cut down and alter grades. Ibid.

§ 2323. Municipal corporations are not liable for injuries to property resulting from changes in grades of streets, if the work is carefully and skilfully done. Ibid.

§ 2324. The care and superintendence of streets, alleys and highways, the regulation of grades, and the opening of new, and the closing of old, streets, are peculiarly municipal duties. Barnes v. District of Columbia, S$ 2340-53.

§ 2325. The board of public works of the District of Columbia is composed of the governor and four other persons nominated by the president, and is invested with the entire con

trol and regulation of the repairing of streets and alleys, and all other work which may be intrusted to their charge by the legislative assembly of the District of Columbia or by congress, together with the disbursement of moneys collected for the improvement of streets and alleys. Ibid.

§ 2326. The board of public works must make an annual report of their transactions to each branch of the legislative assembly and to the president. Ibid.

§ 2327. The municipal corporation, made such by acceptance of the city or village charter, is liable for negligence in the construction, care and management of its streets, and in this respect is distinguishable from quasi corporations, such as counties, towns, school districts or townships. Ibid.

§ 2328. The board of public works of the District of Columbia is part of the municipal corporation of the District, and the District is liable for injuries caused to persons by the dangerous or defective condition of streets resulting from the negligence of such board, although the fee of the streets is in the United States and not in the municipal corporation. Ibid. See § 2381.

§ 2329. A city council can direct the mayor and chairman of the committee on streets and alleys to make contracts for paving sidewalks. This is not an unlawful delegation of power, Hitchcock v. Galveston, SS 2354-58.

§ 2330. A paving contract is not wholly inoperative because it provides for payment in bonds of a corporation, the issue of which is not authorized by law. Although ultra vires, such contract is enforceable as far as it is lawful, and the city which is a party to it may be liable in damages for a breach of it. Ibid. See §§ 2385, 2397.

§ 2331. A requirement that paving contractors obtain the written consent of abutting property owners, which written consent or selection of the said pavement shall be filed in the mayor's office with the city clerk," does not make such written consent a condition precedent to the performing by the contractors of any part of their work agreed to be done. A contract becomes binding upon the city before such consent is obtained. Ibid.

§ 2332. The law requires public municipal officers to construct public works so as not wantonly or maliciously to injure adjoining proprietors, and so as to cause no unnecessary damage. Their work must be done in such a reasonable and proper manner as to cause no damage which is not necessarily incident to the prosecution of the work. Cheever v. Shedd, S$ 2359-61.

§ 2333. In the absence of statutory provisions a municipal corporation or its agents are not liable for a consequential damage, which is necessarily done in the exercise of reasonable care, to adjoining lands not taken for public use, in the execution of a public work imposed by the legislature upon the corporation for the public benefit, although the individual who executes such an improvement upon his own lands, for his private benefit, might strictly be liable for such a consequential injury. Ibid.

§ 2334. But this principle does not apply to private corporations who are authorized by the legislature to construct works of a public character, such as canals or railroads; such works being constructed primarily for the benefit and emolument of the private corporations who have them in charge and who are not paid agents. Ibid. [NOTES.-See §§ 2362-2419.]

STATEMENT OF FACTS.- This is an appeal from a decree of the circuit court of the United States for the county of Washington, in the District of Columbia, on the following case:

In the year 1797, the legislature of Maryland, among certain additional powers given to the corporation of Georgetown, enacted that they "shall have full power and authority to make such by-laws and ordinances for the graduation and leveling of the streets, lanes and alleys, within the jurisdiction of the same town, as they may judge necessary for the benefit thereof." Act of November, 1797, c. 56, sec. 6, p. 35. In pursuance of this authority the corporation passed an ordinance, in May, 1799, for the graduation of certain streets, the first section of which appoints commissioners, and authorizes them "to make the level and graduation of the streets;" and the second is in these

words: "And be it ordained, that the said level and graduation, when signed by the said commissioners or a majority of them, and returned to the clerk of this corporation, shall be forever thereafter considered as the true graduation of the streets so graduated, and be binding upon this corporation, and all other persons whatever, and be forever thereafter regarded in making improvements upon said streets."

The plaintiff in error owned lots upon one of these streets, and made improvements thereon, according to the graduation made and returned to the clerk of the corporation, under the directions of this ordinance. In September, 1816, the corporation passed another ordinance, directing the level and graduation of this street to be altered; and the commissioners appointed, being about to cut down the street by the plaintiff's house, were enjoined from proceeding by a bill filed by the plaintiff against them and the corporation. Upon the final hearing of this case, the circuit court dismissed the bill, being of opinion that the corporation had the power asserted in their answer, of altering the level and graduation of a street. graduated under their former ordinance of May, 1799.

The counsel for the appellant contends that the circuit court erred in dismissing his bill because (1) the power to graduate streets, as given by the legislature of Maryland, was not a continuing power, but was completely executed by the ordinance of May, 1799, and has never been renewed. (2) The ordinance of May, 1799, is in the nature of a compact, and is unalterable.

§ 2335. A power granted to a municipal corporation to make by-laws for the graduation of its streets is a continuing power, and not one exhausted by its first exercise.

1. The language of the act certainly does not imply that the power it confers is exhausted in its first exercise. The power is not "to graduate and level the streets," or "to make a by-law for the graduation and leveling of the streets;" but "to make such by-laws and ordinances for the graduation and leveling of the streets, etc., within the jurisdiction of the same town as they may judge necessary for the benefit thereof." The act seems to contemplate a continuance of the power, and a repetition of the by-laws and ordinances, as the corporation 'may judge necessary for the benefit of the town." It gives a power to legislate on the subject, and to pass more than one by-law and ordinance respecting it. Unless, then, there be in the nature of the operation something which forbids its repetition, the words of the act import no such prohibition. There can be no doubt that the power of graduating and leveling the streets ought not to be capriciously exercised. Like all power it is susceptible of abuse. But it is trusted to the inhabitants themselves, who elect the corporate body, and who may therefore be expected to consult the interests of the town. Although this power may be oppressively repeated, the possession of it cannot be pronounced so improper or so dangerous as to control, essentially, the words which confer it. The graduation and leveling of the streets is not, necessarily, a single operation. There may be circumstances to produce a general desire to vary the graduation, to bring the streets more nearly on a level than was contemplated in the first ordinance; and if this may occur, we cannot say that the legislature could not intend to give this power of varying the graduation, when the words they employ are adapted to the giving of it.

Two acts of congress for amending the charter of Georgetown have been relied on. That passed in January, 1805 (2 Stats. at Large, 335), empowers the corporation "to open and extend and regulate streets within the limits of the

said town, provided they make to the person or persons who may be injured by such opening, extension or regulation, just and adequate compensation, to be sustained by the verdict of an impartial jury, summoned," etc., "who shall proceed in like manner as has been usual in other cases, where private property has been condemned for public use." For the corporation, it has been contended that the word "regulate" implies some operation on the streets themselves, or is entirely senseless; and, if it implies any such operation, it must comprehend their graduation. The objection made by counsel to this argument is the improbability that the word "regulate" would be substituted for "graduate," if it were used in the same sense; and the words directing the duty of the jury. They are to proceed in like manner as has been usual in other cases, where private property has been condemned for public use." The word "regulate," then, it is said, is shown by this expression to be applicable only to those cases in which private property is condemned to public use, which is not done in graduating a street. This construction is supposed to be strengthened by the act of 1809 (2 Stats. at Large, 538), which again empowers the corporation "to lay out, open, extend and regulate streets, lanes and alleys," but confines the use of the jury for assessing damages to those sustained "by reason of opening or extending any street, lane or alley." The opinion that the original power continues after its first exercise renders it unnecessary to decide on the extent which may and ought to be given to the word "regulate."

§ 2336. An ordinance regulating a street grade is not a contract with property owners who have built with reference to such grade.

2. The second point presents a question of some difficulty. One object of the ordinance probably was to give as much validity to the graduation made by the commissioners as if it had been made under the direct superintendence of the corporate body. But it cannot be disguised that a promise is held forth to all who should build on the graduated streets that the graduation should be unalterable. The court, however, feels great difficulty in saying that this ordinance can operate as a perpetual restraint on the corporation. When a government enters into a contract, there is no doubt of its power to bind itself to any extent not prohibited by its constitution. A corporation can make such contracts only as are allowed by the acts of incorporation. The power of this body to make a contract which should so operate as to bind its legislative capacities forever thereafter, and disable it from enacting a by-law, which the legislature enables it to enact, may well be questioned. We rather think that the corporation cannot abridge its own legislative power.

Decree affirmed.

SMITH v. CORPORATION OF WASHINGTON.

(20 Howard, 135-149. 1857.)

ERROR to the Circuit Court for the District of Columbia.
Opinion by MR. JUSTICE GRIER.

STATEMENT OF FACTS.- The declaration in this case alleges, in substance, that the plaintiff is owner of a lot in the city of Washington, fronting on K street; that this street was opened in front of her lot in the year 1831, and became a traveled street; that a wall had been erected in front of the lot, to protect it; that shade trees had been planted in front of it; that a sidewalk had been laid; "that defendants unlawfully, wrongfully and injuriously," cut down the shade trees, took down the wall, removed the pavement, and dug down the street in