ordinance prohibiting injuries to trees is a lawful exercise of the police power under the statute.2 21 § 218. Police powers inalienable. Neither the State nor municipality can alienate, contract away, surrender, abridge or destroy its police and reserved powers, nor can any legislative body curtail the power of its successors, to make such enactments as may be proper in matters of police. And no irrevocable grant of property can be made which impairs the sovereign right to make laws for the right government of the State. 22 § 219. Reasonableness and validity of ordinance - Police power Street uses. In all matters pertaining to the police regulation of municipalities, their ordinances, being of the nature of legislative discretion, are prima facie reasonable, and in the matter of licensing business occupations and the like, and fixing the amount of tax therefor, the action of the governing board is presumptively honest and just; but what is a reasonable tax or rental, does not rest exclusively in the city's discretion, but rests with the court. 23 It is held, however, that in the absence of fraud, corruption or oppression, the courts have no power to interfere with the exercise of police powers 21 Consolidated Traction Co. v. East Orange, 63 N. J. 669, 44 Atl. 1099, affg. 61 N. J. L. 202, 38 Atl. 803. 22 State, Laclede Gas L. Co. v. St. Louis, 130 Mo. 10, 5 Am. Elec. Cas. 79. (This case was appealed to 170 U. S. 78, 18 Sup. Ct. 505. And as to points involved, see State Nat. Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113.) McKeesport v. McKeesport & Pass. Ry. Co., 2 Super. Ct. (Penn.) 242; West Point Water Power & L. I. Co. v. State, 49 Neb. 223, 66 N. W. 6, revd., on rehearing, 49 Neb. 223, 68 N. W. 507; Kittanning Elec. Light, H. & P. Co. v. Kittanning, 11 Penn. Super. Ct. 31. "All agree that the legislature cannot bargain away the police powers of the State. Irrevocable grants of property and franchises may be made if they do not impair the supreme authority to make laws for the right government of the State; but no legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police." Stone v. Mississippi, 101 U. S. 817, per Mr. Chief Justice Waite, quoted in the Laclede case first cited in this note. 23 St. Louis v. Western Un. Teleg. Co. (U. S. C. C., E. D. Mo., 1894), 5 Am. Elec. Cas. 43, 50, per Phillips, Dist. J. See § 101, herein. Examine State, Kennelly v. Mayor, etc., Jersey City (N. J. Sup. Ct., 1894), 5 Am. Elec. Cas. 146. of a city, in the discretion of the city council.24 So the presumption is that an ordinance passed within the exercise of the charter powers granted to a municipality is reasonable, unless from its inherent character or from evidence it is demonstrated to be unreasonable.25 And the courts have power to determine the reasonableness of municipal ordinances, for the decision of the municipal authorities is not conclusive.26 A municipal corporation adopting an ordinance establishing a street railway, will waive all irregularities, provided at the time of the passage of the final grant all the steps necessary to jurisdiction have been taken and no fraud or unfair dealings are charged.27 Again, an ordinance is not invalidated because of unreasonableness where it extends the time of certain franchises for a period of ten years beyond the time when they would expire, other franchises of the company expiring at later dates.28 And where property rights have been acquired by a street railway company or its successor, by virtue of grants by a city council, said city will be estopped to repudiate the action of the council as unauthorized.2 29 § 219a. Ordinances - Reasonable restrictions on street railway- Ultra vires.- Where an ordinance, passed by virtue of a delegation of power from the legislature of a State, grants a location of street railway tracks subject to certain restrictions which are reasonable, and the ordinance is carried into effect by the construction, operation and maintenance of the street railway, a traction company and its successors in title, while retaining and enjoying the privileges and franchises granted by the ordinance, cannot resist the claim of the municipality for enforcement of the restrictions on the plea that the ordinance was 24 So held in Monongahela City v. Monongahela Elec. L. Co. (C. P., Penn.), 12 Penn. Co. Ct. 529, 4 Am. Elec. Cas. 53. 25 State, Consolidated Tract. Co. v. Elizabeth, 58 N. J. L. 619, 34 Atl. 146, 3 Am. & Eng. R. Cas. (N. S.) 614, 32 L. R. A. 170. See Skaggs v. Martinsville, 140 Ind. 476, 39 N. E. 241. 26 Brooklyn v. Nassau Elec. R. Co. (N. Y.. 1899), 38 N. Y. App. Div. 365, 56 N. Y. Supp. 609, 1 Dill. on Mun. Corp. (4th ed.), § 327 (261). 27 Hamilton v. C. & H. Elec. St. Ry. Co. (Ohio, 1899), 9 Ohio C. P. Dec. 174. 28 Linden Land Co. v. Milwaukee Elec. Ry. & Lighting Co., 107 Wis. 493, 83 N. W. 851. 29 Mill Creek Valley St. R. Co. v. Carthage, 18 Ohio C. C. 216. ultra vires the municipal corporation. The plea of ultra vires is not admitted in such circumstances except where it is practicable to restore the status quo ante and the company is therefore estopped from availing itself of that plea.30 -Courts § 220. Municipality - Courts Judicial and legislative acts. -Whether a borough council has acted in bad faith in enacting a supplemental ordinance, eliminating the limitation upon the duration of the term of a municipal grant to a street railway, is not a judicial question.31 Nor will the court, at the instance of a taxpayer, review the discretion of the city council as to the consideration of a franchise where the legislature has empowered the proper authorities of the city to impose terms and conditions for the grant of the use of its streets to railway corporations.32 So the enactment of regulations for the use of its streets is a legislative and not a judicial question, and the courts cannot establish such regulations, although it may order municipal authorities to adopt reasonable regulations, and may determine the validity of the action taken.33 Again, it is held that it is wholly within the legislative discretion, not subject to judicial supervision, to choose a particular engine and dynamo in preference to another, at a lower price, for an electric lighting plant, where the public officials advertise for bids and reserve the right to reject any and all bids.34 And where the question of purchasing public utilities is concerned a broad discretion is vested in municipalities since as a matter of public policy the public welfare will ordinarily be better promoted than by the opinions of courts.35 So it is declared in a federal case that "The city at all times has the power of regulation. It may not be arbitrarily exercised, but within reasonable bounds the city authority may rightfully designate in what manner the public interests require public services to be rendered to the extent, at least, of determining in what part of a street the facilities shall be located, and presumptively this bitrary and unreasonable; Bacon v. Savannah, 105 Ga. 62, 31 S. E. 127, discretion of municipality will not be interfered with by courts in absence of clear abuse; question of necessity of street improvement. Illinois: Chicago Gen. R. Co. v. Chicago, 176 Ill. 253, 52 N. E. 880, ordinance presumed legal; People, Geiss v. Pease (C. C., Ill.), 31 Chic. L. News, 98, 3 Chic. L. J. Week. 504, courts may determine whether a statute is legitimate exercise of police power; Church v. People, Kochersperger, 179 Ill. 205, 53 N. E. 554, courts will only interfere where clear abuse of discretion; question here of extent of public improvement. Iowa: Dewey v. Des Moines, 101 Iowa, 416, 70 N. W. 605, necessity of public improvements, courts will not interfere with municipal discretion in absence of fraud or oppression. Kansas: Sodom v. Emporia, 7 Kan. App. 583, 52 Pac. 461, municipality may exercise discretion as to street improvement; will not be interfered with by courts unless abused. Maryland: Sprigg v. Garrett Park, 89 Md. 406, 43 Atl. 813, courts cannot set aside ordinance enacted in performance of statutory duty. Nebraska: State, Douglass Co. v. Cornell, 53 Neb. 556, 74 N. W. 59, 39 L. R. A. 513, determination by legislature of what is a public purpose is not conclusive in courts; State v. McGovern, 60 N. J. L. 402, 38 Atl. 636, in absence of bad faith courts will not review city requirement of proof of contractor's ability to fulfill contract; Wilson v. Trenton, 61 N. J. L. 599, 40 Atl. 575, 44 L. R. A. 540, affg. 60 N. J. L. 394, 38 Atl. 635, decision as to lowest bidder cannot be reversed by courts. Ohio: MeClain v. McKisson, 15 Ohio C. C. 517, awarding contract to other than lowest bidder; in absence of fraud or corruption courts will not interfere with city's discretion. Oregon: Apex. Transp. Co. v. Garbade, 32 Or. 582, 52 Pac. 573, error to U. S. Sup. Ct. denied; 54 Pac. 367, taking private property for public use, whether use is in fact public is for courts. Tennessee: Beazley v. Kennedy (Tenn.), 52 S. W. 791, courts will not interfere in absence of charge of corruption or fraud; case of purchase of materials for fire department. Canada: Kelley v. Winnipeg, 12 Manitoba, 87, in absence of fraud or improper motive court will not interfere with municipal discretion as to amount of wages to be paid on public work. 35 Connor v. City of Marshfield (Wis. 1906), 107 N. W. 640. exercise of the police power is valid." 36 If the powers granted by the legislature have been exercised without fraud or palpable abuse of discretion by the municipality, judicial inquiry is limited to the questions whether there has been any neglect of prescribed formalities or any violation of legal principles in entering into a contract.37 In Minnesota it is declared that "Mandamus will lie to compel the exercise of official discretion or judgment, although it will not lie to direct the manner in which the duty shall be performed.” 38 § 221. Enactment of municipal ordinances - Decisions.- In New Jersey, where the city charter requires a three-fourths vote of all the members of the city council for the enactment of any ordinance or resolution involving the expenditure of money, and where there are thirteen members, a vote of at least ten members is requisite, in order to pass a resolution awarding a contract for electric lighting after advertisement for and receipt of proposals.39 If an ordinance is passed under the Street Railway Act of 1896, of New Jersey, the Borough Act of 1878, which requires that all ordinances be proposed at a regular meeting, and be acted upon at a subsequent meeting, does not apply.40 A resolution duly signed, attested and approved becomes valid when published the length of time required.11 If there are no statutory restrictions, the majority of a council constitutes a quorum, and a majority of said quorum may lawflly enact ordinances and resolutions. 42 In Ohio the statute 36 Louisville Home Teleph. Co. v. Cumberland Teleph. & Teleg. Co., 111 Fed. 663, 49 C. C. A. 524, 8 Am. Elec. Cas. 108, revg. Cumberland Teleph. & Teleg. Co. v. Louisville Home Teleph. Co., 110 Fed. 593. 37 Oakley v. City of Atlantic City (N. J. Sup., 1899), 44 Atl. 651. See Tuttle v. Brush Elec. Illum. Co., 50 N. Y. Super. Ct. 464, 1 Am. Elec. Cas. 508, 514, 515; Auerach v. Cuyahoga Tel. Co., 7 Ohio N. P. 633. 38 St. Paul, City of, v. Freedy, 86 Minn. 350, 90 N. W. 781, 8 Am. Elec. Cas. 29, per Lewis, J. As to review by certiorari in general of acts of municipal council see Carr v. City Council of Augusta, 124 Ga. 116, 52 S. E. 300; Reed v. Borough of Woodcliff (N. J. Sup.), 60 Atl. 1128. 39 State, Suburban Elec. Co. v. Elizabeth, 59 N. J. L. 134, 36 Atl. 673. 40 State, Hutchinson v. Belmar, 61 N. J. L. 443, 39 Atl. 643, affd., 62 N. J. L. 450. 41 Gallagher v. Olyphant (C. P., Penn.), 2 Lack. L. News, 367. 42 State, Hutchinson v. Belmar, 61 N. J. L. 443, 39 Atl. 543, affd., 62 N. J. L. 450. |