office, the court may pronounce the sentence of disqualification and removal.

56. Liability on contracts.-Without special personal undertaking, officers are not personally liable upon contracts made by them for and on behalf of the corporation. But it has been held that an overseer of the poor makes himself personally liable by promising that he will be responsible for the payment of the charges. In fine, the rule is well settled that wherever the parties understand that the contract is made by the officer on behalf of the corporation, and it is within the scope of his authority, the corporation alone is liable, and the officer becomes personally liable only upon manifest intention to that effect.

57. Liability for torts.-If the duty imposed upon an officer is a duty to the public, the failure to perform it or an inadequate or erroneous performance is a public injury, and must be redressed, if at all, in some form of public prosecution. But if, on the contrary, the duty is a duty to an individual, then the neglect to perform it properly is an individual wrong, and may support an individual action for damages. It is a general rule that judicial officers acting within their jurisdiction cannot be held personally liable for the improper or erroneous performance of their duties. But it is commonly held that this exemption from liability in the performance of discretionary public functions does not exist when the officer has been actuated by corrupt or malicious motives, or has practiced fraud upon the person suffering injury. On the contrary, the general rule

is that in the performance of merely ministerial duties an officer is liable to third persons for injury suffered by his nonfeasance or misfeasance.

For example, a board of street commissioners, in determining upon the work to be done, on adopting plans and specifications therefor act as judicial officers, and no private action will lie against them for damage done in exercising these functions. But if they undertake to execute these plans and specifications either personally or with the aid of employees, they are liable to third persons for injury suffered from such acts, which are done in a ministerial capacity. It has accordingly been held that a mayor, marshal, and board of health were liable for negligence in removing from the city a smallpox patient and carelessly exposing him to inclement weather so as to cause his death. Also, a public meat inspector is liable for failing to discharge his duty; and street officers for injury done to an adjoining property by changing the grade of the street.

CHAPTER IV.

CONTRACTS AND IMPROVEMENTS.

58. Municipal contracts.-Municipal contracts possess the same essential elements, and are executed, enforced, rescinded, and reformed under the same general doctrines as those governing contracts between individuals. Within the scope of its charter powers and in the manner permitted by law, a municipal corporation may enter into contract relations with other persons, having the same general effect and obligation as those of a private corporation or a natural person, and for breach of such contract it will incur similar liability. The courts will enforce such contracts and redress the breach thereof, either for or against the municipal corporation, in the same manner and to the same extent as other contracts between other classes of persons. Such contracts are usually written and signed on behalf of the municipality by the duly constituted authority; but when properly authorized, a valid municipal contract may be made by parol; and there are many cases giving redress against municipal corporations for breach of implied contracts of the municipality.

59. Ultra vires.-The capacity of the municipal corporation to make a binding contract is dependent upon power, express or implied, conferred upon it by its charter; and contracts made by a municipality repugnant to or outside of the scope of its charter are

ultra vires and void.18 Two propositions are settled: One is that a contract by which a corporation disables itself from performing the functions and duties undertaken and imposed by its charter is, unless the state which has created it consents, ultra vires; the other is that the powers of a corporation are such, and such only, as its charter confers, and an act beyond the measure of these powers, as either expressly stated or fairly implied, is ultra vires.

Illustrations. Therefore it has been declared that contracts by which a municipality gave away or exchanged city streets for other property, offered a reward for the apprehension of a person, borrowed money to pay the expenses of an election contest over the removal of a county seat, or to make loans and donations to colleges, are ultra vires, and not enforcible at law. In fact, there is at present general concurrence in the doctrine that the law will not recognize or enforce a municipal contract which it does not authorize. Parties, therefore, seeking recompense for money loaned, material furnished, or labor done for a municipal corporation under an ultra vires contract do not sue for breach of the contract or seek specific performance thereof, but seek recompense either upon the theory of an implied contract and assumpsit, or under some doctrine of equity.19

60. Estoppel.-Municipal contracts which are within the scope of corporate powers, but which are

18 Quincy v. Bull, 106 Ill. 337, LEADING ILLUSTRATIVE CASES.

19 London, etc., Land Co. v. Jellico, 103 Tenn. 320, LEADING ILLUSTRATIVE CASES.

defective because of irregularity in the method of their execution, or unlawful because of a secret purpose of the corporation, are not void, but are subjects of ratification and estoppel. And so, if the corporation under a contract of this kind has obtained value from the other party, it cannot avoid or rescind the contract except upon the condition of complete restitution or recompense; and if the municipality recognizes such contract, with full knowledge of the facts, it may thus waive objection and ratify the same and become bound thereby; as, where officers or a board having no authority therefor make a contract for a city within the scope of its charter powers, the common council or other board empowered to make such contract may subsequently adopt or ratify the same, just as a natural person may ratify the unauthorized contract of his agent.

But the doctrine of ultra vires does not absolve municipal corporations from the principle of common honesty. And so "where an act in its external aspects is within the general powers of a corporation, and is only unauthorized because it is done with a secret unauthorized intent, the defense of ultra vires will not prevail against a stranger who in good faith dealt with it without notice of such intent." 20 Also where the other contracting party has in good faith performed his part of the contract, the municipality will be held estopped from pleading the shortcomings or faults of its own officers or agents in all cases where the contract is not repugnant to or beyond the scope of the corporate power. But if the 20 2 Dill. Mun. Corp., § 936.