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arbitrary exercises of power in the nature of torts, or are quasi eriminal, the corporation may be held to a pecuniary, responsibility for them to the party injured. * It is said that Salt Lake city, being a municipal corporation, is not liable for tortious actions of its officers. While it may be true that the rule we have been discussing may require a more careful scrutiny in its applieation to this class of corporations than to corporations for peeuniary profit, we do not agree that they are wholly exempt from liability for wrongful acts done, with all the evidences of their being acts of the corporation, to the injury of others, or in evasion of legal obligations to the State or the public. It remains to be observed, that the question of the liability of corporations on contracts which the law does not authorize them to make, and which are wholly beyond the scope of their powers, is governed by a different principle. Here the party dealing with the corporation is under no obligation to enter into the contract. No force, or restraint, or fraud is practiced on him. The powers of these corporations are matters of public law open to his examination, and he may and must judge for himself as to the powers of the corporation to bind itself by the proposed agreement. It is to this class of cases that most of the authorities cited by appellants belong-cases where corporations have been sued on contracts which they have successfully resisted because they were ultra vires. But, even in this class of cases, the courts have gone a long way to enable parties who had parted with property or money on the faith of such contracts, to obtain justice by recovery of the property or the money specifically, or as money had and received to plaintiff's use.'

§ 972. Nature of duty.

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It was suggested in a preceding section 3 that the character of a duty, whether discretionary or ministerial, affected the question of liability of a public corporation for its negligent performThe duties or powers of public corporations have been classified as legislative or judicial in their character, therefore discretionary and imperative or ministerial. The former, for

ance.

93 See § 951, ante.

94 Jewett v. City of New Haven, 38 Conn. 368; City of Chicago v.

Turner, 80 Ill. 419; City of Chicago v. Norton Milling Co., 97 Ill. App. 651; Browning v. Owen County

their performance being left to the judgment, the discretion of the particular officer or body in whom is vested the power of performance or exercise. To impose a liability for a failure to perform these duties or in respect to the manner of their performance would clearly deprive them of their discretionary character and impose their proper performance upon the courts. In case of the latter or ministerial and imperative duties, the performance of the duty or the exercise of the power is not left to the judgment or the discretion of the public authorities but is directly imposed or prescribed to be performed in a manner specified. For a failure to perform duties of this character or for their negligent performance the courts almost universally hold the existence of a liability to the one injured.9

Com'rs, 44 Ind. 11; McMahon v. City of Dubuque, 107 Iowa, 62; Brunswick Gas Light Co. v. Brunswick Village Corp., 92 Me. 493; Cavanagh v. City of Boston, 139 Mass. 426; Gray v. City of Detroit, 113 Mich. 657; Thompson v. City of Boonville, 61 Mo. 282; Rowland v. City of Gallatin, 75 Mo. 134; Boyland v. City of New York, 3 N. Y. Super. Ct. (1 Sandf.) 27. Unauthorized discharge of cannon. City of Hamilton v. Ashbrook, 62 Ohio St. 511. The construction of levees for protection of lowlands is a discretionary duty. Pierce v. Tripp, 13 R. I. 181; City of Nashville v. Sutherland, 92 Tenn. 335, 21 S. W. 674, 19 L. R. A. 619. A guaranty in respect to the sufficiency of a sewer is ultra vires and void if it makes a city an insurer of property against injury from such a cause where it is only liable for lack of reasonable care and skill in the construction of the sewer. Harrison v. City of Columbus, 44 Tex. 418; Royce v. Salt Lake City, 15 Utah, 401, 49 Pac. 290.

95 Weightman V. Washington Corp., 1 Black. (U. S.) 39; Irving v. City of Highlands, 11 Colo. App.

363, 53 Pac. 234; Judge v. City of Meriden, 38 Conn. 90; Duke v. City of Rome, 20 Ga. 635; Harper v. Town of Jonesboro, 94 Ga. 801, 22 S. E. 139; Gray v. City of Griffin, 111 Ga. 361, 36 S. E. 792, 51 L. R. A. 131; Linck v. City of Litchfield, 31 Ill. App. 118; Backer v. West Chicago Park Com'rs, 66 Ill. App. 507; Brinkmeyer, v. City of Evansville, 29 Ind. 187; Anne Arundel County Com'rs v. Duckett, 20 Md. 468; McGinnis v. Inhabitants of Medway, 176 Mass. 67, 57 N. E. 210; Larkin v. Saginaw County, 11 Mich. 88. The determination that a bridge must be built is a legislative or discretionary act. Carroll v. City of St. Louis, 4 Mo. App. 191; Schattner V. Kansas City, 53 Mo. 162; In re Opening of Albany St., 6 Abb. Pr. (N. Y.) 273; Kavanagh v. City of Brooklyn, 38 Barb. (N. Y.) 232; Tate v. City of Greensboro, 114 N. C. 392, 19 S. E. 767, 24 L. R. A. 671; Town of Norman v. Ince, 8 Okl. 412, 58 Pac. 632; State v. Ward, 56 Tenn. (9 Heisk.) 100; City of Richmond v. Long's Adm'r, 17 Grat. (Va.) 375.

96 Jones v. City of New Haven, 34 Conn. 1; Danbury & N. R. Co. v.

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§ 973. Respondeat superior.

To render a public corporation liable for negligence, not only must the character of the duty negligently performed be established as one which gives rise to a cause of action together with the other essentials of actionable negligence, as stated in the preceding sections, but also since a public corporation as an artificial person acts through its officers and agents, must it clearly appear that the act complained of was committed by some one expressly authorized to do the act by the public authorities 97 or that it was done bona fide in pursuance of a general authority to act on the subject to which the action relates. If these conditions appear a liability will follow. In this respect the rule of agency in respect to private persons will be recalled, namely, that the principal is bound by all acts coming within the apparent scope of the agent's power and authority. This principle does not apply to agents of a public corporation. It, as a principal, is bound only for the acts of its agents coming within the precise scope of their express

Town of Norwalk, 37 Conn. 109;
City Council of Augusta v. Owens,
111 Ga. 464, 36 S. E. 830; City of
Richmond v. Long's Adm'rs, 17
Grat. (Va.) 375; Hollman v. City
of Platteville, 101 Wis. 94, 76 N. W.
1119.

97 Herzo v City of San Francisco,
33 Cal. 134; City of East St. Louis
v. Klug, 3 Ill. App. 90; Lisso v. Red
River Parish, 29 La. Ann. 590; God-
dard v. Inhabitants of Harpswell,
84 Me. 499, 24 Atl. 958; Gilpatrick
v. City of Biddeford, 86 Me. 534, 30
Atl. 99; Kreger v. Bismarck Tp.,
59 Minn. 3, 60 N. W. 675; Reynolds
v. Board of Education of Union
Free School Dist., 33 App. Div. 88,
53 N. Y. Supp. 75; City of Galves-
ton v. Brown, 28 Tex. Civ. App.
274, 67 S. W. 156.

98 City Council of Sheffield v.
Harris, 101 Ala. 564, 14 So. 357;
City of Mobile v. Bienville Water
Supply Co., 130 Ala. 379, 30 So.

98

445; Sievers v. City & County of
San Francisco, 115 Cal. 648, 47 Pac.
687;
Town of Colorado City v.
Liafe, 28 Colo. 468, 65 Pac. 630;
Platt v. City of Waterbury, 72
Conn. 531, 45 Atl. 154, 48 L. R. A.
691; City of Chicago v. McGraw, 75
Ill. 566; Wilde v. City of New Or-
leans, 12 La. Ann. 15; Thayer v.
City of Boston, 36 Mass. (19 Pick.)
511; City of Detroit v. Corey, 9
Mich. 165; Lee v. Village of Sandy
Hill, 40 N. Y. 442; Meares v. Town
of Wilmington, 31 N. C. (9 Ired.)
73; Noble Tp. v. Aasen, 8 N. D. 77;
76 N. W. 990; City of Dayton v.
Pease, 4 Ohio St. 80; Caspary v.
City of Portland, 19 Or. 496, 24 Pac.
1036; City of Hillsboro v. Ivey, 1
Tex. Civ. App. 653, 20 S. W. 1012;
City of Ysleta v. Babbitt, 8 Tex.
Civ. App. 432, 28 S. W. 702; Palmer
v. Village of St. Albans, 60 Vt. 427,
13 Atl. 569.

99

authority. A public corporation, when authorized to act, is equally with a private person obligated to employ competent agents for the work in which they are engaged.100 An act within. the scope of a public corporation though not presently authorized by it may be subsequently ratified and confirmed, and the usual rule will then apply in respect to the legal results of effects of that action,101 but it must clearly appear that the act ratified was within the original power or proper duties of the corporation, or, stated in another way, the mere act of ratification cannot create a liability 102

(a) Nature of duty performed. The liability of a public corporation for the acts of its agents will again depend upon the character of the act in doing which they are employed. If this is gov ernment, no liability can arise.103

99 Roughton v. City of Atlanta, 113 Ga. 948, 39 S. E. 316; Hough v. Hoodless, 35 Ill. 166; Campbell v. City of Clinton, 94 Ill. App. 43; Kansas City v. Brady, 52 Kan. 297, 34 Pac. 884; Rounds v. City of Bangor, 46 Me. 541; Mitchell v. City of Rockland, 52 Me. 118; Woodcock v. City of Calais, 66 Me. 234; McCann v. City of Waltham, 163 Mass. 344, 40 N. E. 20; McCarthy v. City of Boston, 135 Mass. 197; Prince v. City of Lynn, 149 Mass. 193, 21 N. E. 296; Rainey v. Hinds County, 79 Miss. 238, 30 So. 636; Wabaska Elec. Co. v. City of Wymore, 60 Neb. 199, 82 N. W. 626; Jersey City v. Kiernan, 50 N. J. Law, 246, 13 Atl. 170.

100 But see Taggart v. City of Fall River, 170 Mass. 325, 49 N. E. 622.

101 Coburn v. San Mateo County, 75 Fed. 520; Schussler v. Hennepin County Com'rs, 67 Minn. 412, 70 N. W. 6, 39 L. R. A. 75; Sherman v. City of Grenada, 51 Miss. 186; City of Omaha v. Croft, 60 Neb. 57, 82 N. W. 120; Commercial Elec.

If, on the other hand, the

Light & Power Co. v. City of Tacoma, 20 Wash. 288, 55 Pac. 219.

102 Caldwell v. City of Boone, 51 Iowa, 687; Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490; Brunswick Gas Light Co. v. Brunswick Village Corp., 92 Me. 493, 43 Atl. 104.

103 Hart v. City of Bridgeport, 13 Blatchf. 289, Fed. Cas. No. 6,149; Mead v. City of New Haven, 40 Conn. 72; Kinnare v. City of Chicago, 171 Ill. 332, 49 N. E. 536; Hafford v. City of New Bedford, 82 Mass. (16 Gray) 297; Dunbar v. City of Boston, 112 Mass. 75; McGinnis v. Inhabitants of Medway, 176 Mass. 67, 57 N. E. 210; Bryant v. City of St. Paul, 33 Minn. 289; Gullikson v. McDonald, 62 Minn. 278; Miller v. City of Minneapolis, 75 Minn. 131; Murtaugh v. City of St. Louis, 44 Mo. 479; Tomlin v. Hildredth, 65 N. J. Law, 438, 47 Atl. 649; Treadwell v. City of New York, 1 Daly (N. Y.) 123; Rosenbaum v. City of Newbern, 118 N. C. 83, 32 L. R. A. 123; Shields v. Town of Durham, 118 N. C. 450, 36 L. R.

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cause of action arises from an act governmental in its nature, perhaps, but where there is a liability imposed by statute or contract,104 or where, as in the case of municipal corporations proper, most frequently, the damage is the result of carrying out some one or more of its private, local or proprietary powers,105 then the same rules of liability will apply as in respect to private persons or corporations. A liability will accrue in connection with the operation of a municipal water,100 lighting or power plant,107

A. 293; Wheeler v. City of Cincinnati, 19 Ohio St. 19; City of Victoria v. Jessel, 7 Tex. Civ. App. 520, 27 S. W. 159; City of Richmond v. Long's Adm'rs, 17 Grat. (Va.) 375; Bartlett v. Town of Clarksburg, 45 W. Va. 393, 43 L. R. A. 295; Kuehn v. City of Milwaukee, 92 Wis. 263; Kempster v. City of Milwaukee, 103 Wis. 421. See, also, Nisbet v. City of Atlanta, 97 Ga. 650.

104 City of Richmond v Smith, 82 U. S. (15 Wall.) 429; City of Belleville v. Hoffman, 74 Ill. App. 503; State V. Montgomery County Com'rs, 26 Ind. 522; Lyman v. Town of Windsor, 24 Vt. 575.

105 Barnes v. Dist. of Columbia, 91 U. S. 540. The liability of a municipal corporation for the acts of its officials and agents is not dependent upon the manner of securing office or source of compensation. Coburn V. San Mateo County, 75 Fed. 520; Danbury & N. R. Co. v. Town of Norwalk, 37 Conn. 109; Murtaugh v. City of St. Louis, 44 Mo. 479; Tomlin v. Hildreth, 65 N. J. Law, 438, 47 Atl. 649; Howell v. City of Buffalo, 15 N. Y. 512; McCombs v. Town Council of Akron, 15 Ohio, 474; De Voss v. City of Richmond, 18 Grat. (Va.) 338; Mulcairns v. City of Janesville, 67 Wis. 24.

106 City Council of Augusta v.

Mackey, 113 Ga. 64, 38 S. E. 339; Phinizy v. City of Augusta, 47 Ga. 260; City of Baltimore v. Merryman, 86 Md. 584, 39 Atl. 98; Stoddard v. Inhabitants of Winchester, 157 Mass. 567, 32 N. E. 948; St. Germain v. City of Fall River, 177 Mass. 550, 59 N. E. 447; Boston Belting Co. v. City of Boston, 149 Mass. 44, 20 N. E. 320; Lynch v. City of Springfield, 174 Mass. 430, 54 N. E. 871; Rhobidas v. City of Concord, 70 N. H. 90, 47 Atl. 82, 51 L. R. A. 381; City of New York v. Bailey, 2 Denio (N. Y.) 433; Tilford v. City of New York, 1 App. Div. 199, 37 N. Y. Supp. 185; Seeley v. City of Amsterdam, 54 App. Div. 9, 66 N. Y. Supp. 221; Pettengill v. City of Yonkers, 116 N. Y. 558, 22 N. E. 1095; Wilson v. City of Troy, 135 N. Y. 96, 32 N. E. 44, 18 L. R. A. 449. It is a question for the jury whether the workmen were guilty of negligence or at that time servants of the city. Town of Norman v. Ince, 8 Okl. 412, 58 Pac. 632; Smith v. City of Philadelphia, 81 Pa. 38; Irving v. Borough of Media, 194 Pa. 648, 45 Atl. 482; Bragg v. City of Rutland, 70 Vt. 606, 41 Atl. 578; Collensworth v. City of New Whatcom, 16 Wash. 224, 47 Pac. 439. See, also, Gross v. City of Portsmouth, 68 N. H. 266, 33 Atl. 256; Soule v. City of Passaic, 47 N. J. Eq. 28, 20 Atl.

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