porations affect private property, the exercise of such powers granted in relation thereto must be strictly pursued.' In West Virginia, the corporate powers of every town and village can only be exercised by the common council thereof, or under its authority, except where otherwise provided by law." Effect of failure to execute power in mode prescribed. Respecting the effect of a failure by a municipal corporation to exercise a power in the manner prescribed, the law seems to be as follows: If the provision is mandatory, the omission is fatal to the validity or binding effect of the corporate action, but if directory merely, it is not necessarily so. USAGE AND CUSTOM AS AFFECTING MUNICIPAL POWERS. SECTION 72. Municipal corporations in England frequently exercise powers by virtue of a long established custom or prescription; this is said to presuppose a grant of the power exercised by charter or act of parliament, which has been lost. But in this country the powers of municipal corporations cannot be conferred upon them by usage, and this necessarily follows as a result of the manner in which our municipal corporations are created, viz.: By express legislative act, wherein their powers and duties are wholly prescribed." Kyle vs. Malin, 8 Ind., 34. Richards vs. Town of Clarksburg, 30 W. Va., 491. • Dillon, Mun. Corp. (3rd Ed.), par. 92; in the case of Butler vs. Charleston, 7 Gray (Mass.), 12, it was held that: "A city whose charter and ordinances provide that no contract shall be binding on the city unless made by some authorized agent and within some appropriation for the purpose, is not liable for legal services beneficial to the city performed by counsel retained by a majority of the members of the board of aldermen without any action of the city council, although the usage of the city had been to pay such bills approved by a committee of either board without any formal vote." DELEGATION OF POWERS. SECTION 73. Legislative powers conferred upon municipalities must be executed by the municipality and cannot be delegated to any subordinate or other authority.' So far as the functions of a municipal corporation are legislative, they may rest in the discretion and judgment of the municipal body entrusted with them, and that body cannot refer the exercise of the power to the judgment of its subordinates or of any person. The powers delegated to municipal corporations for the control and management of their own local affairs and concerns, are regarded as trusts confided to the hands in which they are placed, and are not subject to be delegated by the repositories of them. In Oakland vs. Carpentier, 13 Cal., 540, it appeared that the board of trustees of the town of Oakland, in whom the legislature had large corporate and municipal powers, were authorized "to lay out, make, open, widen, regulate and keep in repair all streets, bridges, ferries, public places and grounds, wharves, docks, piers, slips, sewers and alleys, and to authorize the construction of the same." Under this clause the board by ordinance gave defendant exclusive privilege of laying out, establishing, constructing and regulating wharves, etc., within the city for thirty-seven years. Held, "that the ordinance was void as being a transfer of the corporate powers of the board." There exists no doubt, however, of the power of a municipal corporation to employ agents for the execution and carrying out its ministerial work." Respecting the authority of a municipal corporation to surrender its legislative powers, Judge Dillon says: "Powers are conferred upon municipal corporations for public purposes; and as their legislative powers cannot be delegated, so they cannot be bargained or bartered away. Such corporations may make authorized contracts, but they have no power, as a party, to make contracts or pass by-laws which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties." MANDATORY AND DISCRETIONARY POWERS. SECTION 74. The question of legislative intention is the determining factor in ascertaining whether a power granted to a municipal corporation is mandatory or discretionary. Where the mere power is granted a municipal corporation to do an act, there is not necessarily an obligation resting upon it to perform such act.10 However, what a municipal corporation is empowered to do for others and it is beneficial to them to have done, the law holds it ought to do." The general rule seems to be that, where any person has a right to demand the exercise of a public function, and there is an officer or set of officers authorized to exercise that function, there, the right and authority give rise to the duty; but, where the right 10 Goodrich vs. Chicago, 20 Ill., 445. 48 Ill., 233, "An act to author- boats by the corporation. Held, that by this language an imperative duty was imposed upon the city to maintain and keep in repair and open and close those bridges for the passage of boats and travellers by land, to compel the performance of which duty mandamus would lie." depends upon the grant of authority and that authority is essentially discretionary, no legal right is imposed.12 PRESUMED KNOWLEDGE OF POWERS. SECTION 75. Municipal corporations can only exercise such powers as are conferred upon them by their charters, and all persons dealing with them must see that they have the power to perform the proposed act. As when a city is expressly limited to a certain amount of indebtedness, beyond which no further debts can be created, a party loaning it money is bound to ascertain at his peril whether the city has not already reached its limit, and if he does not, and the city has reached its limit, he can not enforce payment of the evidence of indebtedness given him to secure the loan.18 SPECIAL AND PARTICULAR POWERS. COMPROMISE AND ARBITRATION. A municipal corporation has power to settle disputed claims against it, and in the absence of a statute prohibiting, may submit to arbitration all unsettled claims and must perform the award made upon such arbitration.14 CELEBRATIONS AND ENTERTAINMENTS. It is held that a municipal corporation has no authority to levy a tax to provide a fund with which to entertain official visitors to the municipality, as such a tax would not be for any necessary or proper corporate purpose.15 13 Carr vs. North Liberties, 35 Pa. St., 324. 18 Law vs. The People, 87 Ill., 385. 14 Agnew vs. Brall, 124 Ill., 312; City of Shawneetown vs. Baker, 85 Ill., 563. " Law vs. People, 87 Ill., 385. However, where there is a charter provision authorizing the expenditure by a municipal corporation of funds for the entertainment of distinguished visitors and for celebrations, there is no doubt of the constitutionality of such charter provisions.1 PAYMENT OF REWARDS. There is much conflict of authority respecting the power of a municipal corporation, in the absence of an express statutory provision, to offer a reward for the apprehension of criminals. In some jurisdictions the power is denied, while in others it is upheld." POLICE POWERS AND REGULATIONS. SECTION 77. The police power of the state has been variously defined and described. Blackstone offers the following: "The due regulation and domestic rule of the kingdom whereby the individuals of the state, like the members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." Judge Dillon, in his commentaries on the law of municipal corporations, says: "Laws and ordinances relating to the comfort, health, convenience, good order, and general welfare of the inhabitants are comprehensively styled, 'Police Laws or Regulations.' And it is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property 17 See Am. & Eng. Ency. of Law, Vol. 15, page 1053, and cases cited in the notes. 16 Hill vs. |