New Decatur v. Berry

McCLELLAN, J. “ It is a general and undisputed propo-. sition of law, that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable.” 1 Dillon Mun. Oorp., §89; Smith v. Mewbern, 70 N. C. 14; Cook County v. McCrea, 93 Ill. 236; Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611; Eufaula v. McNab, 67 Ala. 590. Applying this statement of the powers of municipal corporations — which is said by high authority to be “the best summary of all the decisions upon that point to be found in all the [434] books” — to the charter of the town of New Decatur as it was organized and existed in 1888, the conclusion must be against the power then exercised by that municipality, to declare, establish and enforce quarantine against the town of Decatur. New Decatur was organized under Chapter 1, Title 14, of the Code, 148(5-151(5, and its power to the end in question must be referable to that statute, if it exists'at, all. Confessedly no such power is conferred by express words; confessedly, also, no such power is essential — not simply convenient, but indispensable — to the declared objects and purposes of the ■corporation. And certainly, though not confessedly in this ■case, the power to establish quarantine, and prohibit persons and property from coming or being removed into the town from Decatur, can not be said to be necessarily or fairly implied in, or incident to, the express grants of power, which are: to pass by-laws to enforce the powers granted; to prevent and remove nuisances; license, «fee., shows, amusements, and retailers; to restrain and prohibit gaming, houses of ill-fame, disorderly conduct, «fee.; to establish watches, and appoint captains thereof; to establish and regulate markets and town prisons, sink and repair public wells, «fee., and keep in repair streets, alleys and drains; to license and regulate vehicles carrying for hire; to appoint a marshal, clerk, treasurer, and other necessary officers, and provide their compensation ; to impose fines, and provide for their collection; to supply vacancies in corporate offices; to purchase and hold property, and dispose of the same; to exercise such other powers as are conferred by law, and to levy and collect annual taxes on property. How the granting of either of these several powers could be made the basis for a necessary or fair implication that the legislature intended also to confer the power to establish quarantine, is not conceivable. How the power to prohibit persons from coming into the town, under any circumstances, can in any just sense be said to be incident to any of the powers enumerated, we are unable to see. Every power conferred may be fully exercised and etfectuated without the exercise of the power here claimed. No power conferred would, in the slightest degree, be aided by the exercise of the power claimed here. The power claimed is not expressly granted; it is not implied in, or incident to any power granted; it is not essential to the declared objects and purposes of the corporation; it does not exist. The employment of the appellee by the corporate authorities, as “chief of the quarantine guard,” can not find justification or authorization under the power “to establish night and day watches and patrols, and to appoint captains thereof.” [435] The watches and patrols thus provided for are for the ordinary police of the town, charged with the conservatism of peace and good order, and the enforcement of authorized ordinances of the municipal government. None of these duties were to he performed by the alleged quarantine guard, or the appellee as chief of that guard. He was employed, if at all, solely for the purpose of discharging functions with which the municipality had no power to clothe him, and rendering services which were not in furtherance of any municipal object or purpose. The corporate authorities having no power to establish quarantine regulations, they, of course, were without authority to execute and enforce them, and without authority to bind the town to - payment for services rendered in the execution and enforcement of the ultra vires ordinance or resolution. And the attempt to ratify the action of the intendant, in employing appellee and assuring him that his services would be remunerated, was equally abortive as fixing any liability on the town. — 1 Dillon Mun. Corp. §§ 463-65. The judgment of the City Court is reversed, and judgment wfill be here rendered for the appellant, defendant below.