repeat, we are not now concerned. It is conceded to be a part of our state history that the location of the university was not "solely the result of a selection of the fittest place for such an institution, but was largely the result of the claims made and enforced by that particular section of the state to have one of the great institutions of the state located in its midst." This has its bearing, and should have its influence, upon the interpretation to be given to the language of the constitution, if of doubtful import; but in this case the meaning is so plain and clear that it needs not the aid of contemporaneous history to interpret it. In Re State Institutions, supra, this court recognized that the location of these institutions, including the university, was confirmed by the constitution. It the regents have the power to remove a part of any of the departments of the university, it follows that they have the power to remove the entire department. If they have the right to remove an entire department, they also have the power to remove all, or such of the departments as they may determine. To say they have any such power would be equivalent to declaring that they might remove the entire university from Boulder, and thus override the constitution itself, and render nugatory the efforts of those by whom the location was secured. The fact that the regents keep their business office at Boulder, that commencement exercises are held there, and diplomas awarded, and fees received, and accounts kept, is not a compliance with the mandate of the constitution that the university located at Boulder is the university over which they have supervisory power. To retain the shell at Boulder, while the real work of the university, or of any of its integral parts, is done elsewhere, would be an evasion of the letter and spirit of the statutes and the constitution. That instrument, indeed, gives to the regents the general supervision of the university; but this does not include the power to establish the university, or change its location, in whole or in part, as previously fixed by the constitution and statutes of the state. Their supervision must relate to, and be confined to, the university, and all its departments, as located at Boulder, and not elsewhere.

The judgment of the district court, therefore, is reversed, and the cause remanded, with instructions to grant the writ prayed for by the relator, excluding the defendant corporation from exercising the franchise of teaching medicine at Denver. Reversed.

(15 Utah, 401)

ROYCE v. SALT LAKE CITY. (Supreme Court of Utah. June 19. 1897.) MUNICIPAL CORPORATIONS-LIABILITY FOR TORTS OF OFFICERS-FALSE IMPRISONMENT

-CONVICTS.

1. Plaintiff was arrested by a police officer of defendant for vagrancy, without warrant, no

public offense being shown to have been committed in his presence. Plaintiff was tried on a verbal charge of vagrancy in the police court, without any written complaint being filed against him, was convicted, and sentenced to imprisonment, but not to hard labor, and held without commitment from the police court. By order of the chief of police, plaintiff was put at work upon the stone quarry, where he received from a fellow prisoner the injury complained of. Held, that the acts of the chief of police, requiring him to work breaking stone, when not sentenced to hard labor, at the time of the injury, were ultra vires; that the officers were not acting as agents of the city government, but were trespassers, and the corporation is not liable to the action for damages.

2. Authority granted by resolution of a city council, directing the marshal to work prisoners, does not confer the right to require those in custody, but illegally imprisoned, and not sentenced to hard labor, to be thus employed.

3. All torts or wrongful acts of an agent or officer of a municipal corporation, not resting upon contract, but which are "ultra vires," in the proper sense and meaning of the term, will not create an implied liability on the part of the corporation.

(Syllabus by the Court.)

Appeal from district court, Salt Lake county; John A. Street, Judge.

Action by Guy C. Royce against Salt Lake City for false imprisonment. From a judgment for plaintiff, defendant appeals. Reversed.

W. A. McKay and D. B. Hempstead, for appellant. Powers, Straup & Lippman and L. M. Armstrong, for respondent.

MINER, J. Plaintiff was arrested by a police officer of defendant for vagrancy, without a warrant, no public offense being shown to have been committed in his presence. He was tried on the verbal charge of vagrancy, under the city ordinances of Salt Lake, in the police court, without any written complaint being filed against him. Plaintiff interposed a plea of not guilty, was tried, and convicted of the offense charged, and sentenced to imprisonment in the city jail for a period of 60 days. He was afterwards held by the jailer of the city jail without any commitment from the police court. Through the direction of the chief of police and jailer, he, with other prisoners, was placed in the custody of guards, and set at work breaking rock for Salt Lake City, under sheds prepared for that purpose by the city marshal, and for the protection of city prisoners. These sheds were located near a stone quarry, which was in charge of the street supervisor. The broken rock was used for repairing sidewalks in the city. While so engaged in breaking rock, plaintiff was injured by being struck in the eye by a piece of rock broken by a fellow prisoner, which injury caused the loss of the sight of his eye. Under objection, a resolution of the city council was introduced in evidence, recommending that the city marshal be directed to employ city prisoners on such work as, in his judgment. may be for the best interests of the city. The city marshal did not know of this resolution at the time plaintiff was set at work. This

action was brought to recover damages for wrongfully, unlawfully, and negligently compelling plaintiff to perform said work, whereby the sight of one of plaintiff's eyes was destroyed, and that of the other greatly injured, through the negligence and unlawful acts of the defendant. The defendant appeals from the judgment obtained by the plaintiff.

Appellant contends that the conviction and imprisonment of the plaintiff were illegal; that the act of the chief of police in requiring the plaintiff to work was illegal and wrongful; that the city is not liable for the ultra vires acts of its officers and servants, even though attempted to be authorized by the city; that the city could not ratify a void act, and is not liable for the unlawful acts of its officers and agents. Section 5305, Comp. Laws Utah 1888, contemplates that a written complaint, on oath, shall be filed, except in specific cases, and then a sworn complaint must be immediately filed with the magistrate, or an accusation made, and entered in the minutes of the court, specifying the charge against any person arrested for an offense. Section 5350, Comp. Laws Utah 1888, requires that a certified copy of the judgment, or an order of commitment, shall be delivered to the proper officer after judgment, as a warrant for the execution of the judgment. These requirements of the statute were not complied with. The plaintiff was sentenced to 60 days' imprisonment. There is no provision in our statute, under such a sentence, whereby he could be compelled to work or labor. To require work from him under such circumstances would be, in effect, the imposition of an additional sentence by the police officers over and above the sentence imposed by the police magistrate. The city ordinances were not pleaded or placed in evidence, and there fore cannot be considered. Estee, Pl. & Prac. § 188; Shanfelter v. Mayor of Baltimore (Md.) 31 Atl. 439; City of McPherson v. Nichols (Kan. Sup.) 29 Pac. 679. It therefore appears that the plaintiff was wrongfully and illegally imprisoned, and that he was wrongfully and illegally required to work breaking rock at the time he received the injuries complained of, and these illegal acts were done and authorized by the chief of police, acting as city marshal and jailer of the city, and three guards appointed to watch over the prisoners. To create a liability on the part of the city, it is necessary that the act done which was injurious to the plaintiff was within the scope of the corporate powers of the city as prescribed by its charter; that is, the act must not have been ultra vires in the sense that it was not within the power or authority of the corporation to act with reference to it. If such act complained of was wholly outside of the general or special power of the corporation as conferred by statute, the corporation cannot be made liable to an action for damages, whether it commanded and directed the act to be done, or whether it was done by its officers without its direction; for no municipal

corporation can be impliedly liable to a greater extent than it could make itself by express corporate action. But, if the wrongful act was not ultra vires, it might be the basis of an action of tort against the corporation, whether done by its officers under direct authority, or ratified by it, or whether done by the officers of the corporation in the execution of its corporate powers and duties of a ministerial nature, if done so negligently or unskillfully as to injure others, in which case the corporation would be liable for the carelessness and want of skill of such officers in the course of their authorized employment, without expressly ratifying or adopting the act. So, where a corporation appoints or elects its officers, and has power to control them in the discharge of their duties, can continue or remove them from office, and hold them responsible for the manner in which they discharge their trust, with reference to the corporate powers, and which are for the corporate benefit in its local interest, then such officers are agents of the corporation, and the maxim respondeat superior applies. But, if the officers are elected or appointed by the city government in obedience to a statute or chartered power to perform a public service not particularly local or corporate · in its nature, but because the mode of selection is deemed expedient by the legislature in distributing the powers of government, if they are independent of the corporation as to tenure of office and the manner of discharging their duties, then they are not to be regarded as servants or agents of the corporation, for whose acts or negligence it is impliedly liable, but they would be regarded as public or state officers, with such powers and duties as the stat ute confers upon them, and the doctrine of respondeat superior is not applicable. So that. in order to make the corporation impliedly liable for the wrongful acts of an officer, it must not only be shown that the officer was its officer, either generally as respects the particular wrong complained of, and not an independent public officer acting under his own discretion as to the manner of discharging his duties, nor as a public agent, but also that the wrong was done by such officer in the legitimate exercise of some duty of a corporate nature which was devolved upon him by law, or by the express direction or authority of the corporation, and within the scope of its chartered powers.

Within the principles mentioned, it is held that police officers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties, and that the city is not liable for assaults and batteries committed by its police officers, although done in an attempt to enforce an ordinance of the city, or for an arrest made by a police officer which is illegal for want of a warrant, or for unlawful acts of violence in the exercise of his official duties. The municipal corporation, in all these and like cases, represents the state or the public.

The police officers are not, in such cases, the servants of the corporation. The principle of respondeat superior does not apply, and the corporation is not liable, unless the statute expressly creates the liability. 2 Dill. Mun. Corp. §§ 968-980; Jones, Neg. Mun. Corp. §§ 172, 173; Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030; Smith v. City of Rochester, 76 N. Y. 506; Calwell v. City of Boone, 51 Iowa, 687, 2 N. W. 614; Town of Odell v. Schroeder, 58 Ill. 353; 1 Shear. & R. Neg. § 300; Mechem, Ag. §§ 111, 112; Alamango v. Board of Sup'rs, 25 Hun, 551; Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781; Mayor of Albany v. Cunliff, 2 N. Y. 165; Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490. In Calwell v. City of Boone, 51 Iowa, 687, 2 N. W. 614, it is held that police regulations of a city are not made and enforced in the interests of the city in its' corporate capacity, but in the interests of the public, and that a city is not liable for acts of its officers in attempting to enforce such regulations. Nor can it be made liable for or ratify torts of police officers. Town of Odell v. Schroeder, 58 Ill. 353. Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781, is a case where an inmate of a work house belonging to the city, convicted of a misdemeanor, and legally sentenced to confinement, was injured by the negligence of its agents while he was in the exercise of due care. It also appeared that the city derived a revenue from the proceeds of the work house. The court held that the city could not be held liable in damages, and said: "Nor do we perceive any reason why the city should be held responsible because some revenue is derived from the labor of the inmates. It is required that these inmates should be kept at work, by the statute, but the institution is not conducted with a view to any pecuniary profit. It is not suggested that the expenses of maintaining the work house are met by what is derived from the labor of the inmates, or that any profit above them is made. Even if the entire expense is not met by taxation, by reason of the profit thus derived, such profit is purely incidental." In Mayor of Albany v. Cunliff, 2 N. Y. 165, the city of Albany built a bridge under an unconstitutional statute. The bridge fell in consequence solely of the negligent and improper manner in which it had been constructed by the city. It was held that the city was not liable to an action for damages at the suit of a person injured by the accident. In Ball v. Town of Woodbine, 61 Iowa, 83, 15 N. W. 846, it was held that a city was not liable for the consequences of a violation of the city ordinances by the mayor and common council any more than it would be if the illegal act was committed by a private person. may safely be asserted that torts or wrongful acts of an agent or officer of a municipal corporation, not resting upon contract, but which are "ultra vires," in the proper sense

It

and meaning of the term, will not create any implied liability on the part of the corporation. 2 Dill. Mun. Corp. § 969. In this case the plaintiff was illegally imprisoned by the chief of police and jailer. He was sentenced to 60 days in jail. When the officers required him to work, they undertook to impose a burden upon him that the sentence did not warrant, and which the law did not justify, even if the sentence was valid. When the city council passed the resolution directing the city marshal to employ city prisoners on such work as, in his judgment, would be for the best interests of the city, they gave no directions to the marshal to require work from those in jail who were not prisoners. A prisoner is a person deprived of his liberty by virtue of a judicial or other lawful process. Nor did the resolution require the marshal to compel prisoners to work who were not sentenced to hard labor, and therefore could not be required to work. The resolution did not direct the chief of police or marshal to do an illegal act. The jailer had no mittimus with which to retain the plaintiff. The law has not vested police magistrates and policemen with power to arrest and imprison men at pleasure, without complaint, warrant, or commitment, except as provided by law. The liberty of a citizen cannot be so far disregarded and trifled with that any policeman or jailer may, at his own volition, commit, and hold him in custody, and compel him to work until it suits their convenience to release him. The constitution of this state prohibits such acts except by due process of law. The liberties of the people depend upon a broader and firmer foundation than the mere will and pleasure of such officers. All legal imprisonment arises from the sentence and act of law, and such imprisonment must be reached through such proceedings as the law directs. The chief of police had no authority to require the plaintiff to break stone, any more than he had authority to impose an additional sentence upon him, or to require the same work from a total stranger. The authority given by the city referred only to those legally imprisoned under legal sentence to hard labor, and no others. The plaintiff was not a prisoner meant or referred to by the order. The chief of police and jailer, in imprisoning the plaintiff, and in requiring him to work breaking stone at the time he was injured, were acting ultra vires. They were not acting as the agents of the city government, but were mere trespassers, acting without authority, and outside of any general or special authority or power of the corporation as conferred by its charter; and the corporation is not liable to the action for damages, although the officers, the authors of the injury, may be liable therefor. The court erred in refusing to grant the nonsuit asked by the defendant, and in refusing to give the defendant's request to return a verdict for the defendant. The judgment of

the court below is reversed, and a new trial granted.

ZANE, C. J., and BARTCH, J., concur.

(15 Utah, 389)

THOMPSON v. HYNDS et al. (Supreme Court of Utah. June 14, 1897.) MONEY LOST BY AGENT-RECOVERY BY PRINCIPAL.

This was an action brought by plaintiff to recover certain moneys which she had confided to her husband as her agent for the purchase of mining stocks, and which the husband had gambled away to the defendants. Held, that the husband was acting in the capacity of agent, and, if an agent gambles away the money of a principal, such transaction gives no title to the winner, and the principal can recover back the

money.

(Syllabus by the Court.)

Appeal from district court, Salt Lake county; John A. Street, Judge.

Action by Margaret Thompson against Harry P. Hynds and Thomas McDermott. Judgment for defendants, and plaintiff appeals. Reversed.

Moyle, Zane & Costigan, for appellant. Powers, Straup & Lippman, for respondents.

PER CURIAM. This action was brought by the appellant to recover from the defendants certain moneys which had been by her confided to her husband for the specific purpose of investing in mining stocks, which moneys her husband had gambled away to defendants. The case was tried before a jury, and a verdict was rendered in favor of the defendants. A bill of exceptions was settled upon the judgment, and an appeal taken to this court from the judgment within 60 days from its rendition. At the close of the evidence counsel for plaintiff asked the court to instruct the jury as follows: "As to the $1,000.00, less $33.20, confided by the plaintiff to her husband as her agent on and after August 23, 1894, there is no competent evidence to contradict plaintiff's proof that it was her money, and was gambled away at faro to the defendants, and as to that amount she is entitled to recover in this action. This was the money received from the McGurrin mortgage." The court refused to give the instruction asked for, and the plaintiff excepted. The testimony on the part of the plaintiff tends to show that $1,000, less $33.20, of the money referred to, was played into the defendants' gambling house by plaintiff's agent, lost on a gambling game. The defendants introduced testimony tending to show that Thompson lost some money at the gambling table, but that he also won considerable amounts at different times, and that he also won and lost considerable sums of money at another gambling house during or about the same period of time, but no testimony was offered denying the fact testified to by Thompson that the $1,000 less the $33.20, was lost at defendants' gambling ta

ble, and that the plaintiff owned the money, and gave it to Thompson, as her agent, for the purpose of buying mining stocks. This testimony being uncontradicted, the plaintiff was entitled to the instruction asked for. Thomas R. Thompson, husband of plaintiff, testified that he gambled away the proceeds of 10 shares of stock in the defendants' gambling house. He was then asked by plaintiff's counsel if that was while he was acting as his wife's agent, and replied that it was. Counsel for defendants then moved to strike out the answer. The answer was stricken out, and an exception taken by plaintiff. We think this testimony was proper. If the witness was acting as the plaintiff's agent, for the purpose of investing this money in stocks at that time, it was a proper matter to go before the jury. If a servant or agent gambles away money of the principal, such transaction gives no title to the winner, and the principal can recover back the money. Pierson v. Fuhrmann (Colo. App.) 27 Pac. 1015; Huffcut, Ag. pp. 183, 185, §§ 169, 172; Mason v. Waite, 17 Mass. 569; Corner v. Pendleton, 8 Md. 337; Burnham v. Fisher, 25 Vt. 514; Keener, Quasi Cont. 183, 188. Many other errors are assigned in the record, but we do not consider it necessary to discuss them. The judgment is reversed. and a new trial ordered.

-

STATE v. KESSLER.

(15 Utah, 142)

(Supreme Court of Utah. June 18, 1897.) HOMICIDE FORMER JEOPARDY CHALLENGE OF JUROR EVIDENCE- IDENTIFICATION BY DECEASED INSTRUCTIONS-PRESUMPTIONS. 1. Defendant was tried on an indictment upon which he might have been convicted of murder in the first or second degree, or of voluntary or involuntary manslaughter, and found guilty of murder in the second degree. Upon appeal a new trial was granted. Held, that defendant could be tried again for murder in the first degree after the verdict of guilty of murder in the second degree had been set aside on his motion. 2. A challenge may be properly sustained when a juror entertains conscientious scruples against the death penalty.

3. The identification of defendant by deceased may be admitted in evidence when made by deceased under a belief of impending death, although in making it he refers to a former identification, a part of a statement made by him, and excluded, because defendant was told to keep still when he undertook to deny an accusation made by the deceased.

4. After retiring, the jury may return, and ask to be instructed as to the punishment for voluntary and involuntary manslaughter, and it is not error in the court to read them the law on the subject.

5. When an oral charge has been given, the presumption is, in the absence of any statement in the record to the contrary, that the reporter took it down as required by statute.

Miner, J., dissenting.

(Syllabus by the Court.)

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Daniel Kessler was convicted of voluntary manslaughter, and appeals. Affirmed.

Taylor & Root and Goodwin & Van Pelt, for appellant. A C. Bishop, Atty. Gen., and Benner X. Smith, for the State.

ZANE, C. J. The defendant was tried on an indictment upon which he might have been convicted of murder in the first or second degree, or voluntary or involuntary manslaughter, and the jury found him guilty of murder in the second degree. He entered a motion for a new trial, which the trial court overruled, entered judgment on the verdict, and then sentenced him to imprisonment in the penitentiary for the term of 14 years. From this judgment the defendant appealed, and this court reversed the judgment (44 Pac. 97), and ordered the verdict set aside, which was done. The defendant was then tried a second time on the same indictment and plea of not guilty, and on the further plea of former jeopardy of murder in the first degree, and former acquittal of that offense, and the jury found him guilty of voluntary manslaughter. The court overruled his motion for a new trial, and sentenced him to confinement in the state prison for the term of six years. From this judg ment he has appealed.

On the trial of persons charged with capital crime, the law permits 15 peremptory challenges to each, and 3 to each in prosecutions for offenses of a lower grade. The court permitted the prosecution on the trial, over the objection of the defendant, to make more than three, and the defendant excepted. The court also sustained plaintiff's challenge to one juror, against the objection of the defendant, because he entertained conscientious scruples against the death penalty. To this ruling the defendant also excepted. The defendant offered in evidence the verdict returned on the first trial, and set aside by the court on plaintiff's motion. The court sustained the objection of the prosecution to its admission, and the defendant excepted. These rulings the defendant assigns as error. These errors raise the question, could the defendant be tried again for murder in the first degree, after the verdict of guilty of murder in the second degree had been set aside on his motion? A description of murder in the first degree in the indictment upon which the defendant was tried included a description of murder in the second degree and the crime of manslaughter; and his plea of not guilty made an issue on all those charges. Upon his trial he was in jeopardy as to each offense. And the verdict of guilty of murder in the second degree, while allowed to stand, was a bar to another prosecution on either charge, for the constitution of this state declares that "no person shall be twice put in jeopardy for the same offense." But the further question is, did he, by obtaining a new trial on his own motion, waive his right to rely upon his jeopardy on the former trial or on the verdict of murder in the second degree, as a bar to a conviction of murder in the first degree upon his new or second trial? The statute declares

that: "The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be pro duced anew, and the former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in the bar of any conviction which might have been had under the indictment." 2 Comp. Laws, Utah, 1888, § 5093. This section declares: (1) That the granting of a new trial places the parties in the same position as if no trial had been had; (2) that all the testimony must be produced anew on the new trial; (3) that the former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment. Unless this section is repugnant to the state constitution adopted after its enactment, the defendant was rightly put upon his trial for all the offenses charged in the indictment, and the jury had the right to convict of either offense, as the evidence might warrant. And as the constitution does not, in express terms or by reasonable implication, determine what the effect of a new trial on the defendant's motion shall be when the conviction was for an offense lower than the highest charged, we must hold that the statute is not repugnant to that instrument, and that it is therefore valid. But upon the general proposition, without taking into consideration the statute, it appears more reasonable to hold, when a defendant is found guilty of a lower grade of crime than the highest charged in the indictment, and a new trial granted on his motion, that its effect is to set aside the whole verdict, and leave the case for trial upon the same issues as upon the first trial. On the first trial of this defendant the jury found that he shot Niebergall as charged, and thereby inflicted upon him a wound from which he died; that the shooting was unlawful, and with an intent to kill him, and that it was done with malice aforethought; but did not find the further fact that it was done with such deliberation as made it murder in the first degree. The jury did not actually find a want of deliberation. From the facts found by the jury a want of deliberation was inferred.

In legal effect, the verdict consisted of two parts: First, an actual finding of murder in the second degree; and, second, by construction and inference, not guilty of murder in the first degree. But the defendant claimed that the finding of the jury was erroneous and illegal, and the court agreed with him, and set the verdict aside, and held that it should not be considered as a finding of the facts essential to guilt. That being so, how could the inferential finding of not guilty of murder in the first degree stand, after the finding of facts from which it was inferred, and upon which it depended, was set aside and vacated? To hold that a verdict of not guilty of murder in the first degree may be inferred from a verdict of guilty of murder in the second de gree that has been set aside and remains to be found or not found on a new trial, is to de