poration, who is also its agent for transfer of stock, and authorized to countersign and issue stock, when signed by the president, forges the name of the latter, and fraudulently issues a certificate of stock, the corporation is liable to a bank which has accepted such certificate, in good faith, as collateral security for a loan.308

At the other extreme, the agents of a corporation are personally liable when they do wrong, even with respect to something connected with the corporation, in their purely individual capacities. Thus, if they, by misrepresentation, induce a stockholder to exchange his stock for certificates in a trust formed to control a given corporation, they, and not the corporation, are liable.309

Between these extremes, the test is by no means certain; but the tendency is to hold a corporation liable for all wrongs committed by agents, whether authorized or not, whether within the scope of employment or not, so long as they are committed in course of employment. 810 There would seem to be no difference between the principle which governs the liability of a corporation as a principal or master from those which control the liability of a natural person as principal and master.311 It has, however, been claimed that an agent or servant cannot bind a corporation by committing an ultra vires tort, where its authority is not direct, but implied only.812

Corporators, by their acts, may make the corporation liable, on essentially the same principles as would any ordinary agent. Unlike cases of agency, the liability is not cumulative, but is alterna

308 Fifth Ave. Bank v. Forty-Second St. & G. St. F. R. Co., 137 N. Y. 231, 33 N. E. 378; Nevada Bank v. Portland Nat. Bank, 59 Fed. 338.

309 Manhattan Life Ins. Co. v. Forty-Second St. & G. St. F. R. Co., 64 Hun, 635, 19 N. Y. Supp. 90; Tyler v. Savage, 143 U. S. 79-99, 12 Sup. Ct. 340; Aetna Life Ins. Co. v. Paul, 37 Ill. App. 439.

310 Post, p. 257, "Liability of Master to Third Persons for Wrong of Servant."

311 Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261; Ang. & A. Corp. § 311; Central Ry. Co. v. Brewer, 78 Md. 394, 28 Atl. 615; Salt Lake City v. Hollister, 118 U. S. 256-261, 6 Sup. Ct. 1055; Denver & R. G. Ry. Co. v. Harris, 122 U. S. 597–608, 7 Sup. Ct. 1286; Hamilton v. Railway Co., 53 N. Y. 25; Jeffersonville Ry. Co. v. Rogers, 38 Ind. 116; Allen v. Railway Co., L. R. 6 Q B. 65; Goddard v. Railway, 57 Me. 202; Sherley v. Billings, 8 Bush, 147; Bryant v. Rich, 106 Mass. 180.

312 Green's Brice, Ultra Vires, 364.

tive. Either the corporation is liable, or the corporators,—not both. 313

SAME-MUNICIPAL AND QUASI MUNICIPAL CORPORATIONS.

59. Municipal corporations are sometimes, but not ordinarily, liable for their torts. Their liability depends largely upon construction of the legislation creating them. In general, they are not liable for

(a) Conduct in performance of governmental, as distinguished from merely corporate, functions;

(b) Unauthorized conduct of officers and agents; (c) Authorized acts.

60. Involuntary quasi municipal corporations are subject to even a less extended liability for civil wrongs.

Acts in Performance of Governmental Functions.

A municipal corporation owes a two-fold duty,-one political, springing from its sovereignty; the other private, arising from its existence as a legal person. For conduct of its officers or agents in its former capacity, it is not liable; for their conduct in the latter, it is.314 As to what are public and governmental duties, and what are private or corporate duties, the courts are not in harmony, and their decisions do not furnish any definite line of cleavage. It is important, in every case, to determine the liability by a true inter

313 Harman v. Tappenden, 1 East, 555; Mill v. Hawker, L. R. 9 Exch. 309; The King v. Watson, 2 Term R. 199; Houldsworth v. City of Glasgow Bank, 5 App. Cas. 317. As to liability of promoters to stockholders, Yale Gas Stove Co. v. Wilcox, 64 Conn. 101, 29 Atl. 303. A short article on the duties and liabilities of the "promoters" of corporations will be found in 1 Brief, 228. As to personal liability of officers for torts, see Nunnelly v. Southern Iron Co., 94 Tenn. 397, 29 S. W. 361. As to stockholders (under statute), Flenniken v. Marshall (S. C.) 20 S. E. 788. An extensive note on the duties and liability of promoter to the corporation and its members. Yale Gas-Stove Co. v. Wilcox, 25 L. R. A. 90 (Conn.) 29 Atl. 303.

314 29 Am. Law Rev. 209-218; City of Galveston v. Posnainsky, 62 Tex. 118; 15 Am. & Eng. Enc. Law, 1141, note 3, collecting cases; 2 Dill. Mun. Corp. § 966; O'Rourke v. City of Sioux Falls (S. D.) 54 N. W. 1044.

pretation of the statutes under which the corporation is created.315 Indeed, it may occur that the liability of a municipality depends exclusively on the statute.316

At one extreme, the exemption of municipal corporations from liability for torts is clear. Thus, they are not liable for damages consequent upon conduct of fire,317 police, 318 health,319 or public

315 Snider v. City of St. Paul, 51 Minn. 466, 53 N. W. 763; Mersey Docks v. Gibbs, 3 Hurl. & N. 164; City of Detroit v. Putnam, 45 Mich. 263, 7 N. W. 815. The courts of New England, New Jersey, Michigan, and Texas accepted the idea of nonliability at common law of municipal corporations to civil action. 2 Thomp. Neg. p. 735, note 11. This doctrine has been largely changed by the various statutes. Burt v. Boston, 122 Mass. 223.

316 2 Dill. Mun. Corp. § 948; Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547; Kollock v. City of Madison, 84 Wis. 458, 54 N. W. 725; Stilling v. Town of Thorp, 54 Wis. 528, 11 N. W. 906; McLimans v. City of Lancaster, 63 Wis. 596, 23 N. W. 689; Workman v. Mayor, etc., of City of New York, 63 Fed. 298; Roberts v. City of Detroit (Mich.) 60 N. W. 450. Right to sue for tort is subject to limitation contained in municipal charter as to notice of injury and time within which action may be brought. Nichols v. City of Minneapolis, 30 Minn. 545, 16 N. W. 410; Morgan v. City of Des Moines, 54 Fed. 456; Berry v. Town of Wauwatosa, 87 Wis. 401, 58 N. W. 751. Cf. Barrett v. Village of Hammond, 87 Wis. 654, 58 N. W. 1053; and, generally, see Bacon v. City of Boston, 154 Mass. 100, 28 N. E. 9.

317 Lawson v. City of Seattle, 6 Wash. 184, 33 Pac. 347; Wild v. Mayor, etc., of City of Paterson, 47 N. J. Law, 406, 1 Atl. 490; Alexander v. City of Vicksburg, 68 Miss. 564, 10 South. 62; Gillespie v. City of Lincoln, 35 Neb. 34, 52 N. W. 811; Dodge v. Granger, 17 R. 1. 664, 24 Atl. 100; Thomas v. City of Findley, 6 Ohio Cir. Ct. R. 241; Grube v. City of St. Paul, 34 Minn. 402, 26 N. W. 228. The use by the fire department of a town of a person's hose, which had gotten mixed with the hose of the town, under the belief that it belonged to the town, does not render the town liable to the owner for its use. Dolloff v. Inhabitants of Ayer (Mass.) 39 N. E. 191. But see Workman v. Mayor, etc., of City of New York, 63 Fed. 298; Burrill v. City of Augusta, 78 Me. 118, 3 Atl. 177.

318 Elliott v. Philadelphia, 75 Pa. St. 347; Atwater v. Baltimore, 31 Md. 462; Caldwell v. Boone, 51 Iowa, 687, 2 N. W. 614, 20 Alb. Law J. 376; Odell v. Schroeder, 58 Ill. 357; Bowditch v. Mayor, etc., of Boston, 101 U. S. 16; Givens v. City of Paris, 5 Tex. Civ. App. 705, 24 S. W. 974; Jolly's Adm'x v. City of Hawesville, 89 Ky. 279, 12 S. W. 313. A neglect of the city police to suppress a nuisance consisting of coasting on the public streets does not render the city liable for damages to a person passing along said streets by one coasting. City

319 Forbes v. Board of Health, 28 Fla. 26, 9 South. 862.

park departments, or for the exercise or nonexercise of a discretionary, legislative, or judicial power, as distinguished from a ministerial power. 320

At the other extreme, municipalities are generally held liable for negligence,321 in construction, maintenance, or use of their streets,322

of Wilmington v. Vandegrift (Del. Err. & App.) 29 Atl. 1047. A city is not liable for the act of a police officer in killing a dog running at large contrary to ordinance. Julienne v. Mayor, etc., of City of Jackson, 10 South. 43; Moss v. City Council of Augusta, 93 Ga. 797, 20 S. E. 653; Van Hoosear v. Town of Wilton, 62 Conn. 106, 25 Atl. 457, distinguishing Town of Wilton v. Town of Weston, 48 Conn. 325. There is no liability on the part of a municipality for damages done by mobs. Western College v. Cleveland, 12 Ohio St. 375; 2 Dill. Mun. Corp. § 760. Cf. Wing Chong v. Los Angeles, 47 Cal. 531; Darlington v. Mayor, 31 N. Y. 164; Lowell v. Wyman, 12 Cush. (Mass.) 273; In re Hall, 5 Pa. St. 204. And, generally, see City of New Orleans v. Abbagnato, 10 C. C. A. 361, 62 Fed. 240.

320 The city of Boston is not liable for injury occasioned to a person by reason of his horse becoming frightened, when being driven along an adjoining street, by the firing of a cannon on the common under a license granted in pursuance of a city ordinance. "The ordinance * is not the exercise of an owner's authority over his property, but is a police regulation of the use of a public place by the public, made by the city under its power to make needful and salutary by-laws, without regard to accidental ownership of the fee." Lincoln v. City of Boston, 148 Mass. 578, 580, 20

N. E. 329. A municipality is not liable for suspending an ordinance forbidding fireworks during the time plaintiff's house was destroyed by fireworks negligently used by boys. Hill v. Charlotte, 72 N. C. 55. And, generally, see City of Pontiac v. Carter, 32 Mich. 164; Griffin v. Mayor, 9 N. Y. 456; Dewey v. Detroit, 15 Mich. 307; Grant v. Erie, 69 Pa. St. 420.

321 Duthie v. Town of Washburn, 87 Wis. 231, 58 N. W. 380. Generally, see Jones, Neg. Mun. Corp.; post, p. 798, "Nuisance," note 279. Et vide Cooley, Torts, § 625; Powers v. City of Chicago, 20 Ill. App. 178–181.

322 A dangerous depression, however, has been held not to be an actionable defect. Witham v. Portland, 72 Me. 539. But a city is liable for injuries caused by a ditch dug in the street, and left without any protection or light. City of Americus v. Chapman (Ga.) 20 S. E. 3. Leaving a loose plank may be actionable negligence. Ledgerwood v. City of Webster (Iowa) 61 N. W. 1089. And see White v. City of San Antonio (Tex. Civ. App.) 25 S. W. 1131; Dempsey v. City of Rome (Ga.) 20 S. E. 335. In the absence of statutory provisions, however, city streets have been held to be public highways, and the duty of keeping them in repair is public, and not private, and cities, towns, and counties alike are not responsible for negligence in allowing them to be in a defective condition, resulting in dam

sidewalks, 323 sewers, 324 and levees.225 They are answerable in damages for trespass on private property.320 While a city is not ordinarily liable for failure to exercise its corporate power to abate a

ages. City of Detroit v. Blackeby, 21 Mich. 84; Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012. Et vide Mayor, etc., of City of Rahway v. Carter, 55 N. J. Law, 177, 26 Atl. 96. As to distinction in Michigan that cities are responsible for defects in cross walks, but not in sidewalks, see O'Neil v. Detroit, 50 Mich. 133, 15 N. W. 48; Detroit v. Putnam, 45 Mich. 263, 7 N. W. 815; Grand Rapids v. Wyman, 46 Mich. 516, 9 N. W. 833. The fact that 3 How. Ann. St. § 1446d, makes it the duty of cities to keep their streets in repair, so that they may be reasonably safe, etc., does not give every person injured by failure to perform such duty a right to maintain an action for the injury. Roberts v. City of Detroit (Mich.) 60 N. W. 450; Hennessey v. City of New Bedford, 153 Mass. 266, 26 N. E. 999; Prince

323 Harper v. City of Milwaukee, 30 Wis. 365; Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547; Nichols v. City of St. Paul, 44 Minn. 494, 47 N. W. 168; City v. McInnis, 26 Ill. App. 338; Weare v. Fitchburg, 110 Mass. 334; Saulsbury v. Village, 94 N. Y. 27; Potter v. Castleton, 53 Vt. 435; Foxworthy v. City of Hastings, 25 Neb. 133, 41 N. W. 132; Orme v. Richmond, 79 Va. 86; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; 2 Thomp. Neg. 673. The sidewalk doing damage and creating liability may be of earth instead of usual materials. Graham v. City of Albert Lea, 48 Minn. 201, 50 N. W. 1108 (collecting cases, page 204, 48 Minn., and page 1108, 50 N. W.). Street crossings: Hall v. Incorporated Town of Manson (Iowa) 58 N. W. 881. 324 Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030; New York Cent. & H. R. R. Co. v. City of Rochester, 127 N. Y. 591, 28 N. E. 416; Welter v. City of St. Paul, 40 Minn. 460, 42 N. W. 392; Tate v. City of St. Paul, 56 Minn. 527, 58 N. W. 158; Evers v. Long Island City, 78 Hun, 242, 28 N. Y. Supp. 825; Burton v. Syracuse, 36 N. Y. 54; Noonam v. Albany, 79 N. Y. 470. The duty of draining streets, however, has been held to be judicial in its nature. A municipal corporation has been exonerated from liability for the injurious consequences of an insufficient sewer. The error is in the plan, not in its execution. Post, p. 179, note 332. Where a city has built a sewer partly on private property, it is no excuse for failing to repair the same that it has no right to go on such property to make repairs. Netzer v. City of Crookston (Minn.) 61 N. W. 21. But see Streiff v. City of Milwaukee (Wis.) 61 N. W. 770. Cf. Mayor, etc., of City of Nashville v. Sutherland, 94 Tenn. 356, 29 S. W. 228.

325 Barden v. City of Portage, 79 Wis. 126, 48 N. W. 210. 326 Ashley v. Port Huron, 35 Mich. 296. Cf. Montgomery v. Gilmer, 33 Ala, 116, with Wilson v. City of New York, 1 Denio (N. Y.) 595. See Proprietors v. Lowell, 7 Gray (Mass.) 223; Emery v. Lowell, 104 Mass. 13; Conrad v. Ithaca, 16 N. Y. 158;. Van Pelt v. Davenport, 42 Iowa, 308.