jected to the payment of the debts of the municipality. The public character of such property forbids this. Upon the repeal of the charter of the city, such property passes under the immediate control of the state, the power once delegated to the city in that behalf having been withdrawn; neither can the private property of individuals within the limits of the territory of the city be subjected to the payment of its debts, except through taxation. The doctrine of some states that such property can be reached directly on execution against the municipality has not been generally accepted.1

1 Merriweather v. Garrett, 102 U. tant may, by common law or immeS. 472; Darling v. Mayor, etc., of Bal-morial usage, be taken on execution timore, 51 Md. 2. In towns in Con- upon a judgment against the town. necticut (as in Massachusetts and Bloomfield v. Charter Oak Bank, 121 Maine), the property of any inhabi- U. S.121. 308

PART IV.

LIABILITY OF A CORPORATION FOR THE TORTS OF ITS AGENTS AND SERVANTS.

Corporations liable like natural prin- Carrier's fundamental obligations, cipals. Grounds of the principal's liability, § 335.

$335. Ir may be stated as a general rule that corporations1

It is to be understood that the different. (Compare ante, § 315.) The following sections have in view only private corporations formed for business purposes. The liability in tort of municipal corporations is quite

following frequently-cited, general statement is from the opinion of the New York Court of Appeals, through Judge Folger, in Maxmilian v. Mayor,

are responsible1 for the torts of their agents and servants upon the same ground and to the same extent as individual princi

148 N. Y. 46. The whole subject was exhaustively treated by Chief Justice Gray giving the opinion of the Massachusetts Supreme Court in Hill v. Boston, 122 Mass. 354, a case which held a city free from liability for an accident to a child due to the unsafe condition of a public school. Cf. Lichtenstein v. Mayor, etc., of New York, 159 N. Y. 500. Statutes usually require the fulfillment of preliminary formalities (e. g., certain demands or filing of notices) before commencing suit against a municipality. See e. g., Missano v. Mayor, etc., of New York, 160 N. Y. 123.

etc., of New York: "There are two | County of Monroe, 147 N. Y. 49, and kinds of duties which are imposed villages, Fire Ins. Co. v. Keeseville, upon a municipal corporation; one is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public and is used for public purposes; the former is not held by the municipality as one of the political divisions of the state; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the state, and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser by the public agents.... [Such agents] are not then the agents or servants of the municipal corporation, but are public officers, agents or servants of the public at large, and the corporation is not responsible for their acts or omissions." 62 N. Y. 160, 164, citing Eastman v. Meredith, 36 N. H. 284; Fisher v. Boston, 104 Mass. 87. See also § 177, ante. The same rule applies to counties, Hughes v.

Likewise the liability in tort of public charitable institutions, like a hospital, or a large "Boys' Club" open to all, is not as great as that of a corporation formed for profit. If due care is used in the selection of agents and servants such charitable corporations will not be liable for the special acts of neglect of the latter. McDonald v. Massachusetts General Hospital, 120 Mass. 432. See Ward v. Saint Vincent's Hospital, 65 App. Div. (N. Y.) 64, and compare Nims ». Mount Hermon Boys' School, 160 Mass. 177.

1 That is to say, legal relations occasioned by the tort will subsist between the injured person and the corporation.

2 A tort is a fact with legal effect, other than a contract or agreement; a fact, that is, which occasions legal rules to manifest themselves in legal relations. Such fact may consist in an act or in an omission.

like natural

Grounds of

pals or masters. The liability of principals or masters for the torts of their agents or servants does not rest in every Corporarespect on the rules which constitute the basis of the tions liable responsibility of principals for the contracts of their principals. agents. The liability of a principal for the contract the princiof his agent depends altogether on whether the con- pal's liability. tract was within the scope of the agent's actual authority, or of such authority as the other contracting party acting as a careful and honest man was justified in inferring to exist from the course and general scope of the agent's employment. But in regard to the principal's liability on the contract of his agent, the course and scope of the agent's employment are material only in determining whether the other contracting party was justified in relying on the agent's assumed authority. On the other hand, in regard to the principal's liability for the torts of his agent or servant, the course and scope of the employment become material in themselves apart from their materiality as evidence of implied authority: for a principal may be liable for torts of his employé, committed in the course of the latter's employment, which the injured person could never have imagined that the principal had authorized. Thus, in Craker v. Chicago and Northwestern Railway Co.,2 a railroad company was held liable to pay damages to a young lady passenger whom the conductor kissed; a tort which she was not justified in supposing to have been committed pursuant to instructions from the company. It might, indeed, be suggested that kissing passengers was not properly within the scope of the conductor's employment; but it is within the scope of his employment and duty to protect them from insult; and if he violates this duty by insulting them himself, the company will be responsible. For a railroad company is responsible to passengers even for the wilful and malicious acts of its conductors

1 Philadelphia, etc., R. R. Co. v. | Alabama R. R. Co. v. Chappell, 61 Quigley, 21 How. 202, 209; Fishkill Ala. 527; Merchants' Bank v. State Savings Ins'n v. National Bank, 80 Bank, 10 Wall. 645; Salt Lake City N. Y. 162; Denver and R. G. Ry. v. v. Hollister, 118 U. S. 256; Ranger v. Harris, 122 U. S. 597; Angell and Great Western R'y Co., 5 H. L. C. Ames on Corp., §310. See Ramsden 72, 86; State ex inf. Crow v. Firev. Boston and Albany R. Co., 104 inen's Fund Ins. Co., 152 Mo. 1. Mass. 117; Brokaw v. N. J. R. Co., 2 36 Wis. 657. 32 N. J. L. 328; South and North

An under

the doc

trines of

and train hands committed while they are employed in carrying out the contract between the passenger and the company.1 § 336. An underlying principle here is this: if the corporation, acting within the scope of its corporate authorlying prin- ity, employs agents or servants in such a manner as ciple. Application of to put it within their power to cause a violation of a duty owed by the corporation, the corporation will ultra vires. not be sustained in the defence that the violation complained of was not authorized by it. And thus it is, if the tort was committed in the course of an employment, or in connection with transactions which the corporation had competently authorized or acquiesced in, and any duty owed by the corporation is violated by the tort, it will be no valid defence to the corporation that the tort itself was not only unauthorized, but was even ultra vires the corporation. To the tort itself, under such circumstances, the doctrines of ultra vires have no application; but they do apply where the employment in the course of which, or the transaction in connection with which, the tort was committed, was ultra vires the corpora

tion.

Ordinarily, to render a corporation liable for the torts of its officers, agents, or employés, it must appear that the tort was in some way connected with the business which the corporation was incorporated to carry on;2 and a corporation will not be liable for a tort committed in the course of a transaction clearly ultra vires; unless on principles of acquiescence and ratification heretofore discussed.1

1 Stewart v. Brooklyn and Cross- 76 Ala. 572. Compare Hern v. Agritown R. R. Co., 90 N. Y. 588; cultural Soc., 91 Iowa, 97. A naDwinelle . N. Y. C., etc., R. R. Co., tional bank is not authorized to en120 N. Y. 117; Central of Ga. Ry. gage in the business of selling railCo. v. Brown, 113 Ga. 414. Accord- road bonds on commission; and coningly, that the tortious act of the sequently is not liable in an action employé was done in direct violation for deceit for the false statements of of orders will not exonerate the cor- its teller made while selling such poration. Phila. and Reading R. R. bonds. Weckler v. First Nat. Bank, Co. v. Derby, 14 How. 468. See 42 Md. 581. However, if a corpor᧠347. tion reaps and retains the benefits of a false representation, it cannot set up the plea of ultra vires. Amer. Nat. B'k v. Hammond, 25 Colo. 367. 4 See § 269. For instance, a cor

2 Miller v. Burlington, etc., R. R. Co., 8 Neb. 219. Compare Helfrich v. Williams, 84 Ind. 553.

3 Central R. R., etc., Co. v. Smith,