CHAPTER XXV. TORTS BY MUNICIPAL CORPORATIONS, AND REMEDIES THEREFOR. SECTION I.-Liability of municipal corporations.-General rule as to liability for SECTION II.-Remedies for torts by municipal corporations.-Remedy by action or SECTION I. LIABILITY OF MUNICIPAL CORPORATIONS. 1525 General rule as to liability for torts.-Although the general doctrine is well settled, that an action sounding in tort may be maintained against a municipal corporation, it is impossible to state any rule definitely pointing out the cases in which such an action will lie. As it has been truly expressed, "all that can be done with safety is to determine each case as it arises"(a). A municipal corporation, like all other corporations, is of statutory creation; and in every case the liability of a body created by statute must be determined under a true interpretation of the statutes under which it is created(b). It may (a) Foote, J., in Lloyd v. Mayor, etc., of New York, 5 N. Y. 369. (b) Mersey Docks v. Gibbs; Same v. Penhollow, Law R., 1 H. L. C. 93. S. C., 1 H. & N. 439; 3 id. 164. Little Rock v. Willis, 27 Ark. 572. Richmond v. Long's Administrators, 17 Gratt. (Va.) 375. AD. VOL. II.-82 be stated generally, however, in illustration of the subject under consideration, that, in the absence of any statutory provision or necessary intendment to the contrary, a municipal corporation may be liable, in an action on the case, for an act which would warrant a like action against an individual; provided, the act is done by the express authority of the corporation, or of a branch of its government, empowered to act for it upon the subject to which the particular act relates, or if, after the act has been done, it has been fully ratified by the corporation(c). Thus, a municipal corporation has been held liable for injury resulting from the insufficient construction of its public works(d). So, a municipal corporation has no more right to erect and maintain a nuisance than a private person possesses(e); and is primâ facie liable for the continuance of a private nuisance created by itself (f). And, in general, municipal corporations are responsible, to the same extent, and in the same manner, as natural persons, for the negligence or want of skill of their agents in the construction of works for the benefit of their municipalities(g). Various modifications of these general statements will hereafter appear under appropriate heads. 1526 Liabilities of quasi corporations.-A plainly marked distinction is made, and should be observed, between municipal corporations proper, as incorporated villages, towns and cities, and those other organizations, such as townships, counties, school districts, and the like, which are established without any express charter or act of incorporation, and clothed with but limited powers. These latter political divisions are called quasi corporations, and the general rule of law is now well settled, that no action can be maintained against corporations of this class by a private person, for their neglect of public duty, unless such right of action is expressly given by statute(h). Thus in an early case arising in Massachusetts, it was decided that a town was not liable in a common law action for damages sustained by an individual through a defect in the highways of the town(); and this decision has not only been generally followed throughout, the New England States, but has been recognized elsewhere, and applied to other quasi corporations. (c) Thayer v. Boston, 19 Pick. 511. Wilde v. New Orleans, 12 La. An. 15. Dayton v. Pease, 4 Ohio St. 80. Ross v. Madison, 1 Cart. (Ind.) 281. (d) Rochester, etc. v. City, etc., 3 N. Y. 463. Mayor, etc., v. Bailey, 2 Denio, 433. (e) Brower v. New York, 3 Barb. 254. (g) Ross v. Madison, 1 Cart. (Ind.) 281. (h) Larkin v. Saginaw Co., 11 Mich. 88. Treadwell v. Commissioners, 11 Ohio St. 190. Bray v. Wallingford, 20 Conn. 416. Hafford v. New Bedford, 16 Gray, 48. Van Epps v. Commissioners, 25 Ala. 460. (i) Mower v. Leicester, 9 Mass. 247. The result is tne establishment of the rule of law above stated. It should be observed, however, that the rule is not of universal application, even as to towns, for there may be instances in which they are civilly liable for neglect of duty without such liability being expressly declared by statute(). It is applied in the case of towns only to the neglect or omission of a town to perform those duties which are imposed upon all towns, without their corporate assent, and exclusively for public purposes, and not to the neglect of those obligations which a town incurs when a special duty is imposed on it, with its consent, express or implied, or a special authority is conferred on it, at its request. In the latter cases, a town is subject to the same liabilities for the neglect of those special duties, to which private corporations would be, if the same duties were imposed or the same authority conferred on them, including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents(k). Among the illustrations of the doctrine stated, it has been held that a town which has assumed the duties of school districts, is not liable, in the absence of statutory obligation, for an injury to a scholar attending the public school, from a dangerous excavation in the school-house yard, owing to the negligence of the town officers(). So, in Louisiana, no remedy is given by statute against a parish for a private injury caused by the absence of bridges, or a neglect to keep them in repair, and where it was not shown that the parish was under a legal obligation to keep the bridge over a certain watercourse always in repair, it was held not to be liable for damages occasioned by the ruinous condition of the bridge(m). A county is not responsible in the absence of a statute to the contrary, for injuries resulting from the unsafe and dangerous condition of county buildings, and especially where there exists no statute authorizing the levy of a tax to satisfy such a judgment(n). And in Georgia, it has been held that a county, although it is its duty to keep a good and sufficient jail, is not liable for an escape caused by the insufficiency of the jail, though the sheriff might have been made liable therefor, there being no statute giving such an action(o). So, a county, being a quasi corporation, is not liable for (j) See Chisey v. Canton, 17 Conn. 475; Oliver v. Worcester, 102 Mass. 489; Blodgett v. Boston, 8 Allen, 237. (k) Bigelow v. Randolph, 14 Gray, 541. See Eastman v. Meredith, 36 N. H. 284; Conrad v. Ithaca, 16 N. Y. 158. (4) Bigelow v. Randolph. 14 Gray, 541. And see Jones v. New Haven, 34 Conn. 1. (m) King v. St. Landry, 12 La. An. 858. (n) Commissioners of Hamilton Co. v. Mighels, 7 Ohio St. 109. Morey v. Newfane, 8 Baib. €45. (0) The Governor v. Justices, etc., 19 Ga. 97; and see Haygood v. Justices, 20 Ga. 845, damages sustained by reason of the unskilful treatment of an indigent sick person in the county hospital by the resident physician, nor by reason of insufficient and unwholesome food and other necessaries there supplied to the patient(p). Superintendents of common schools, overseers of the poor, highway commissioners, county supervisors and the like officers, may also be classed among quasi corporations(q). In the state of New York, towns and counties are at most but quasi corporations(r); and it has been held that there is no obligation, either by statute or common law, upon towns, to keep in repair highways within their limits. Nor will an action lie against a town to recover damages for an injury occasioned by a defect in the highway(s). 1527 Implied liability of municipal corporations proper.-Municipal corporations proper, such as towns and cities specially chartered or voluntarily organizing under general acts are, by the decisions of the courts, held to a more extended liability than quasi corporations, even where the latter are invested with corporate capacity, and have the power of taxation(t). Thus, the former are held liable to persons injured by their neglect of duty, without an express statute giving the action, in cases where the latter incur no liability unless imposed by express legislative enactment(u). This distinction is said to arise from the double character possessed by municipal corporations proper-the one governmental, legislative or public; the other, in a sense, proprietary or private. In the one case, no private action lies unless it be expressly given; in the other there is an implied or common law liability for the negligence of their officers in the discharge of such duties(c). Upon whatever ground the distinction is founded, it is one of much importance, and should not be dropped from consideration in the investigation of any case involving the liability of a municipal corporation, for its neglect of duty. 1528 Liability for torts of officers and agents.-The rule of law, which holds the employer or superior civilly answerable for the negligence or want (p) Sherbourne v. Yuba, 21 Cal. 113. (q) Todd v. Birdsall, 1 Cow. 260. Court. Coroner, 2 Wall. 501. Trustees . Tatnam, 13 Ill. 27. Keuren v. Johnson, 3 Denio, 183. (r) Denton v. Jackson, 2 Johns. Ch. 325. Purdy v. People, 4 Hill, 395. (8) Morey v. Newfane, 8 Barb. 645. Town of Galen v. Clyde, etc., Plank Road Co., 27 Barb. 551. (t) See Soper v. Henry County, 26 Iowa, 264; Carroll v. Board, 28 Miss. 38; Hedges v. Madison County, 1 Gilm. (III.) 567. (u) See Bailey v. Mayor, etc., of New York, 3 Hill, 531; Crossett v. Jaynesville, 28 Wis. 420. (v) Oliver v. Worcester, 102 Mass. 489. Detroit v. Corey, 9 Mich. 165; 1 Dill. Mun. Corp. s. 39. West Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175. Small v. Danville, 51 Me 359. Jones v. New Haven, 34 Conn. 1. 'De Voss v. Richmond, 18 Gratt. 338. People v. Hurlburt, 24 Mich. 44. See Darlington v. Mayor, ete., 31 N. Y. 164. of skill of his agent or servant, in the course or line of his employment, by which another suffers an injury, applies to municipal corporations. And to render a municipal corporation liable for the tortious acts of its servants and officers, it is enough that it should appear, either that they were expressly authorized by such corporation, or that they were done bonâ fide, in pursuance of a general authority to act for the corporation on the subject in relation to which they were performed(w). But the injurious acts complained of must be within the scope of the corporate powers as prescribed by charter or positive enactment; otherwise, no liability attaches to the corporation(x). Thus, where the officers and agents of a city corporation assumed to build a bridge, the only authority for the performance of the work being an unconstitutional statute, and the bridge fell in consequence of the negligent construction thereof, it was held that the corporation was not liable to an action for damages at the suit of a person injured by the accident(y). And where the selectmen of a town caused a dam to be erected, an act which the town had no legal authority to do, and the plaintiff's land was thereby flooded, the town was held not liable for the injury done(z). So, where the health officers of a town, without authority of law, took possession of the plaintiff's vessel, and in the process of fumigation, set it on fire, the town was held not liable(a). Nor can a municipal corporation be made liable for an act of its agent, by a ratification thereof, where the act complained of was of such a nature that the corporation did not possess the power to authorize the doing of it by the agent(b). There are other cases, however, bearing a resemblance to those just mentioned in having a relation to illegal acts, but which arise out of matters within the general powers of the corporation, as to which a corporate liability may exist. Thus, a corporate liability has been asserted for the torts of highway officers in encroaching upon the property of the plaintiff by direction of the governing body of the corporation, under the erroneous supposition that it was part of the street(c). So, an action is held to lie against a municipal corporation (w) Lee v. Sandy Hill, 40 N. Y. 442. B. & H. Tpk. Co. v. City of Buffalo, 58 N. Y. 639. (a) See Harvey v. Rochester, 35 Barb. 177; Howell v. Buffalo, 15 N. Y. 512; Thayer v. Boston, 19 Pick. 511; State v. Kirkley, 29 Md. 85; President, etc., of Odell v. Schroeder, 58 Ill. 353; Sheldon v. Kalamazoo, 24 Mich. 383. (y) Mayor, etc., of Albany v. Cunliff, 2 N. Y. 165. (z) Anthony v. Adams, 1 Met. (Mass.) 284. Mitchell v. Rockland, 52 Maine, 118. (b) Boom v. City of Utica, 2 Barb. 104. (c) Lee v. Sandy Hill, 40 N. Y. 442. v. Kalamazoo, 24 Mich. 383. See Walling v. Shreveport, 5 La. An. 660; See, also, Crossett v. Janesville, 28 Wis. 420; Sheldon |