79 but it may be subject to indictment if it has the power and fails to exercise it. A city has no right, however, to create a nuisance in the exercise of its lawful power.so Acts may, however, be relieved of the character of nuisances if authorized by law. 81 of Knoxville, 32 Ill. App. 604. Firing cannon. James' Adm'r v. Trustees of Harrodsburg, 85 Ky. 191, 3 S. W. 135; Howe v. City of New Orleans, 12 La. Ann. 481; Whitfield v. Town of Carrollton, 50 Mo. App. 98. Standpipe. Armstrong v. City of Brunswick, 79 Mo. 319; Kiley v. Kansas City, 87 Mo. 103. Unsafe building. Arthur v. City of Cohoes, 56 Hun, 36, 9 N. Y. Supp. 160; Toomey v. City of Albany, 60 Hun, 580, 14 N. Y. Supp. 572. Coasting. Leonard v. City of Hornellsville, 41 App. Div. 106, 58 N. Y. Supp. 266; Cain v. City of Syracuse, 95 N. Y. 83. Dangerous walk. Robinson v. Village of Greenville, 42 Ohio St. 625, 51 Am. Rep. 857; Borough of Norristown v. Fitzpatrick, 94 Pa. 121. Cannon. McCrowell V. Town of Bristol, 73 Tenn. (5 Lea) 685; City of Chattanooga v. Reid, 103 Tenn. 616, 53 S. W. 937; State v. Town of Burlington, 36 Vt. 521; Schultz v. City of Milwaukee, 49 Wis. 254; Kent v. City of Cheyenne, 2 Wyo. 6. See, also, notes 16 L. R. A. 395; 43 L. R. A. 295. But see Town of Rushvillle v. Adams, 107 Ind. 475; Bannon v. Murphy, 18 Ky. L. R. 989, 38 S. W. 889; Clayton v. City of Henderson, 20 Ky. L. R. 87, 44 S. W. 667; Cochrane v. City of Frostburg, 81 Md. 54, 31 Atl. 703, 27 L. R. A. 728; Fritsch v. City of Allegheny, 91 Pa. 226. City's negligence question for jury. 79 People v. Corporation of Albany, 11 Wend. (N. Y.) 539; State v. Shelbyville Corp., 36 Tenn. (4) Sneed) 176. 80 Nolan v. City of New Britain, 69 Conn. 668; City of Bloomington v. Costello, 65 Ill. App. 407; City of New Albany v. Lines, 21 Ind. App. 380; City of New Albany v. Slider, 2 Ind. App. 392, 52 N. E. 626; Boston Rolling Mills v. City of Cambridge, 117 Mass. 396; Miles v. City of Worcester, 154 Mass. 511, 28 N. E. 676, 13 L. R. A. 841; Detroit Water Com'rs v. City of Detroit, 117 Mich. 458, 76 N. W. 70; Lane v. City of Concord, 70 N. H. 485, 49 Atl. 687; Hart v. Chosen Freeholders of Union County, 57 N. J. Law, 90; Bolton v. City of New Rochelle, 84 Hun, 281, 32 N. Y. Supp. 442; Sullivan v. McManus, 19 App. Div. 167, 45 N. Y. Supp. 1079; Lefrois v. Monroe County, 24 App. Div. 421, 48 N. Y. Supp. 519; City of Chatta nooga v. Dowling, 101 Tenn. 342; Lindsay v. City of Sherman (Tex. Civ. App.) 36 S. W. 1019; Parsons v. City of Ft. Worth, 26 Tex. Civ. App. 273, 63 S. W. 889; Willet v. Village of St. Albans, 69 Vt. 330; Town of Suffolk v. Parker, 79 Va. 660. But see Long v. City of Minneapolis, 61 Minn. 46; Wehn v. Gage County Com'rs, 5 Neb. 494. County not liable for damages sustained through erection of county jail even though it is a nuisance. City of Hillsboro v. Ivey, 1 Tex. Civ. App. 653, 20 S. W. 1012; Ostrom v. City of San Antonio, 94 Tex. 523, 62 S. W. 909; City of Ft. Worth v. Crawford, 64 Tex. 202, 53 Am. Rep. 753. City § 968. Public education. In modern days the proper education of the community is recognized as a governmental duty and no liability can arise in respect to the action or condition of any agency which the state may adopt as a means for the accomplishment of this result. This rule applies as in the case of all the subjects noted above to various officials, buildings or agencies employed,83 used or acts done in connection with the subject of this section. 82 969. Charities and corrections. The furnishing of aid to indigent persons and the care of those morally, mentally or physically defective, are also duties which rest upon the state and which can be classed as governmental in their character. In the carrying out of this function, an immunity is granted in respect to all acts or agencies.85 84 § 970. Failure to pass or enforce ordinances. The passage or enforcement of laws or ordinances has been regarded as a governmental duty, a failure to properly perform not liable to an individual for sickness caused by deposit of its garbage in one place. 81 Hill v. City of New York, 139 N. Y. 495, 34 N. E. 1090. $2 Freel v. School City of Crawfordsville, 142 Ind. 27, 41 N. E. 312, 37 L. R. A. 301. $3 Kinnare v. City of Chicago, 171 III. 332, 49 N. E. 536; Bigelow v. Inhabitants of Randolph, 80 Mass. (14 Gray) 541; Howard v. City of Worcester, 153 Mass. 426, 27 N. E. 11, 12 L. R. A. 160; Hill v. City of Boston, 122 Mass. 344; Bank v. Brainerd School Dist., 49 Minn. 106, 51 N. W. 814; Eastman v. Meredith, 36 N. H. 284; Reynolds v. Board of Education of Little Falls, 33 App. Div. 88, 53 N. Y. Supp. 75; Brown v. City of New York, 32 Misc. 571, 66 N. Y. Supp. 382; Finch v. Board of Education of Toledo, 30 Ohio St. 37; Wixon v. City of Newport, 13 R. I. 454; Folk v. City of Milwaukee, 108 Wis. 359, 84 N. W. 420. Shearman & R. Neg. § 267. "Boards of education on which is imposed by the state the duty of providing and keeping in repair public school buildings exercise a purely public function and agency for the public good for which they receive no private or corporate benefit; and they are, therefore, not liable to an individual for the negligence of their servants in the business of such agency." 84 Moulton V. Inhabitants of Scarborough, 71 Me. 267. Where a town was held liable for an injury inflicted on a citizen by a ram owned by the town and kept on its poor farm. Town of Chelsea v. Town of Washington, 48 Vt. 610. 85 Hughes v. Monroe County, 79 which, it has been held, can give rise to no cause of action. The statement as above given does not accurately state the law upon this question. Liability in a particular instance depends not upon the failure to take action but upon the character of the duty which is to be performed by the proposed action.86 If it is a governmental one, there can clearly be no liability merely in respect to the failure to pass or enforce an ordinance having for its purpose the carrying out of that duty.87 If, on the other hand, action in Hun, 120, 29 N. Y. Supp. 495, 147 N. Y. 49, 41 N. E. 407, 39 L. R. A. 33. 86 Fifield v. Common Council of Phoenix, 4 Ariz. 283, 36 Pac. 916. Display of fireworks. Collins v. City of Savannah, 77 Ga. 745; Cole v. City of Newburyport, 129 Mass. 594; Sexton v. City of St. Joseph, 60 Mo. 153; Love v. City of Raleigh, 116 N. C. 296, 21 S. E. 503, 28 L. R. A. 192. Permitting display of fireworks. 87 Hewison V. City of New Haven, 37 Conn. 475; Wyatt v. City of Rome, 105 Ga. 312, 31 S. E. 188, 42 L. R. A. 180; Rivers v. City of Augusta, 65 Ga. 376. Failure to enforce stock ordinance. Tarbutton v. Town of Tennille, 110 Ga. 90, 35 S. E. 282. No liability for failure to pass ordinance prohibit ing the riding of bicycles on sidewalk. Barrows v. City of Sycamore, 150 Ill. 588, 37 N. E. 1096, 25 L. R. A. 535; Kinnare v. City of Chicago, 171 Ill. 332, 49 N. E. 536; Wheeler v. City of Plymouth, 116 Ind. 158, 18 N. E. 532; Kistner v. City of Indianapolis, 100 Ind. 210. Failure to require railroad com. pany to provide suitable safe guards. Ball v. Town of Woodbine, 61 Iowa, 83. Discharge of fireworks. Easterly v. Town of Irwin, 99 Iowa, 694, 68 N. W. 919; Taylor City of Cumberland, 64 Md. 68; Scanlon v. Wedger, 156 Mass. 462, 31 N. E. 642, 16 L. R. A. 395. Display of fireworks. Tindley v. City of Salem, 137 Mass. 171. Fireworks. Hines v. City of Charlotte, 72 Mich. 278, 40 N. W. 333, 1 L. R. A. 844. Construction of wooden block in violation of ordinance. Stevens v. City of Muskegon, 111 Mich. 72, 36 L. R. A. 777; Schattner v. Kansas City, 53 Mo. 162; Moran v. Pullman Palace Car Co., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755; Harman v. City of St. Louis, 137 Mo. 494, 38 S. W. 1102. Failure to prevent erection of wooden building in violation of ordinance. Rosenbaum v. City of Newbern, 118 N. C. 83, 24 S. E. 1, 32 L. R. A. 123; Hill v. Aldermen of Charlotte, 72 N. C. 55; Frederick v. City of Columbus, 58 Ohio St. 538; Smith v. Borough of Selinsgrove, 199 Pa. 615, 49 Atl. 213; Heidenwag v. City of Philadelphia, 168 Pa. 72, 31 Atl. 1063; O'Rourke v. City of Sioux Falls, 4 S. D. 47, 19 L. R. A. 789; Jones v. City of Williamsburg, 97 Va. 722, 34 S. E. 883. But see Cochrane v. City of Frostburg, 81 Md. 54, 31 Atl. 703, 27 L. R. A. 728. Domestic animals when running at large in such numbers as to be a serious discomfort and injury to the town are a nulsance which it is the duty of the municipality to abate by the pass this respect applies to a duty not governmental in its character but one which arises because of the character of the corporation as a municipal corporation proper in its local, proprietary or private sense, then, clearly, a liability may arise because of a failure. to take legislative action. It is not the failure to take action. which creates or prevents a liability but the character of the duty involved in the action. 88 Liability for enforcement of ordinance. Public corporations are not liable either in the use of agencies or for the acts of their officers and employes in enforcing ordinances valid or invalid. passed for the carrying out of some governmental or public duty. or power, and the contrary rule of course will apply where the ordinance relates to local proprietary or private powers or duties of a corporation. 89 age of a proper ordinance. City of Hagerstown v. Koltz, 93 Md. 437, 49 Atl. 836, 54 L. R. A. 940. Failure to enforce speed ordinance. Saxton v. City of St. Joseph, 60 Mo. 153. See, also, § 972, pòst. A liability may, however, be imposed by statute. See City of Henderson v. Clayton, 22 Ky. L. R. 283, 57 S. W. 1. ss Speir v. City of Brooklyn, 139 N. Y. 6, 34 N. E. 727, 21 L. R. A. 641. Display of fireworks. * Trescott v. City of Waterloo, 26 Fed. 592. A person who has served out in prison a fine imposed for the violation of an unconstitutional municipal ordinance has no right of action against the city for false imprisonment. Masters V. Village of Bowling Green, 101 Fed. 101; Town of Odell v. Schroeder, 58 III. 353; Culver v. City of Streator, 130 Ill. 238, 22 N. E. 810, 6 L. R. A. 270; Easterly v. Incorporated Town of Irwin, 99 Iowa, 694, 68 N. W. 919; Taylor v. City of Owensboro, 98 Ky. 271, 32 S. W. 948; Fox v. City of Richmond, 19 Ky. L. R. 326, 40 S. W. 251; McGraw v. Town of Marion, 98 Ky. 673, 34 S. W. 18, 47 L. R. A. 593. No municipal liability for arrest and imprisonment under invalid ordinances. City of New Orleans v. Kerr, 50 La. Ann. 413, 23 So. 384; Worley v. Town of Columbia, 88 Mo. 106; Fox v. Northern Liberties, 3 Watts & S. (Pa.) 103; Elliott v. City of Philadelphia, 75 Pa. 347, Id., 7 Phila. (Pa.) 128; Givens v. City of Paris, 5 Tex. Civ. App. 705, 24 S. W. 974; McFadin v. City of San Antonio, 22 Tex. Civ. App. 140, 54 S. W. 48; City of Corsicana v. White, 57 Tex. 382; City of Galveston v. Posnainsky, 62 Tex. 130. But see McGraw v. Town of Marion, 98 Ky. 673, 34 S. W. 18, 47 L. R. A. 593. See, also, notes on liability of municipal corporations for false imprisonment and unlawful arrest and liability for arrest and imprisonment under invalid ordinance, in 44 L. R. A. 795, and 47 L. R. A. 593. § 971. Ultra vires acts. The character of a public corporation as a governmental agent of exceedingly restricted and limited powers should be constantly had in mind. An ultra vires act is one in excess of the lawful powers possessed by an artificial person. Even in respect to private corporations a liability for an ultra vires act is in many cases denied. The strict rule as to the consequences of an ultra vires act should be and is applied to a far greater extent in the case of a public corporation.90 They are governmental agents created by the sovereign and are its agencies or auxiliaries to carry out gov ernmental measures and functions. Their property is acquired for public uses and through an exercise of the power of taxation. The great weight of authority and reason sustain the rule of no liability in the case of a public corporation whether municipal or quasi in respect to the consequences of an ultra vires act.91 A recent case in the Supreme Court of the United States 92 has, however, made a distinction between ultra vires acts based upon a contract and tortious ultra vires acts, holding in the latter case to a liability. In the decision in that case written by Mr. Justice Miller, it was said: "The truth is, that, with the great increase in corporations in very recent times, and in their extension to nearly all the business transactions of life, it has been found necessary to hold them responsible for acts not strictly within their corporate powers, but done in their corporate name, and by corporation officers who were competent to exercise all the corporate powers. When such acts are not founded on contract, but are 90 See §§ 108 et seq., ante. 91 Lloyd v. City of Columbus, 90 Ga. 20, 15 S. E. 818; Hoggard v. City of Monroe, 51 La. Ann. 683, 25 So. 349, 44 L. R. A. 477; Horn v. City of Baltimore, 30 Md. 218; Goddard v. Inhabitants of Harpswell, 84 Me. 499, 24 Atl. 958; Kreger v. Bismarck Tp., 59 Minn. 3; Boye v. City of Albert Lea, 74 Minn. 230, 76 N. W. 1131; Beatty v. City of St. Joseph, 57 Mo. App. 251; Hunt v. City of Boonville, 65 Mo. 620; Rives v. City of Columbia, 80 Mo. App. 173; Betham v. City of Philadel phia, 196 Pa. 302, 46 Atl. 448; State v. McNay, 90 Wis. 104; Becker v. City of La Crosse, 99 Wis. 414, 75 N. W. 84, 40 L. R. A. 829. But see Stanley v. City of Davenport, 54 Iowa, 463. Liable for damages caused by unauthorized use of steam motor on public street; Allison v. City of Richmond, 51 Mo. App. 133; Hollman V. City of Platteville, 101 Wis. 94, 76 N. W. 1119. 92 Salt Lake City v. Hollister, 118 U. S. 256. |