property the corporation is liable for the entire damage done by overflow at its outlet; also that a municipality is liable for damages sustained by individual owners from the flooding of their premises by drains or sewers; and from the depositing of sewage upon their lands, though this be a necessary result of the plan adopted. So, also, damages may be recovered by private action for the pollution of a stream by sewage so as to render the water unfit for use by the riparian owner or occupier; and in some cases the municipality has been enjoined from emptying its sewage into a running stream, whereby a public nuisance was created.

102. Respondeat superior.-The liability of the municipal corporation in most cases of tort rests upon the doctrine of the common law that the master is liable for the wrongs done by the servant when acting within the scope of his employment. Obviously, there can be no liability for tort unless there has been a violation of some municipal duty; nor can a corporation be held liable for the acts of officers whom it does not control. But the corporation may be liable for the conduct of officers not appointed by it, but by the state for it. "For the acts of an independent officer, whose duties are fixed and prescribed by law, the city cannot be held chargeable upon the principle of respondeat superior, for the relation of master and servant does not exist. Such officers are quasi-civil officers of the government, even though appointed by the corporation. But an excep

74 Bailey v. Mayor, etc., of New York, 3 Hill 531 (N. Y.), 38 Am. Dec. 669, LEADING ILLUSTRATIVE CASES.

tion to this rule exists when the corporation is under an absolute duty to perform the acts which are devolved upon such officers, or when the corporation, as such, derives an immediate profit and advantage therefrom."75

103. Ultra vires.-A municipal corporation is not civilly liable for damages suffered by individuals in person or property which are caused by the tortious acts of municipal agents or officers assuming to represent it in matters wholly beyond its powers.

A municipal corporation cannot confer upon its agents or officers lawful authority to represent it beyond the scope of its charter powers. For the malfeasance of agents or officers of the corporation in assuming to do acts which are entirely beyond the municipal powers and purposes, and cannot, therefore, be lawfully authorized by the municipality, the corporation cannot be held liable in damages to persons suffering injuries therefrom. This logical doctrine, based upon elementary principles of the common law, received general, if not universal, recognition in America by the concurrent decisions of the courts for almost a century.

Salt Lake City Case. The stability of this doctrine of the law is supposed to be shaken by the decision of the Supreme Court of the United States in the unique case of Salt Lake City v. Hollister,76 wherein Mr. Justice Miller, in delivering the opinion of the court, said: "The truth is that, with the great increase in corporations in very recent times, and in

75 Wood, Master and Servant, § 463.

76 118 U. S. 256.

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 arbitrary exercises of power in the nature of torts, or are quasi-criminal, the corporation may be held to a pecuniary responsibility for them to the party injured."

An examination of this case shows the foregoing language of Mr. Justice Miller to be an obiter dictum. Salt Lake City, having erected a distillery, proceeded without authority to engage in the business of distilling spirits, and while so doing, in violation of the United States revenue laws, made fraudulent returns of the quantity of spirits produced. Its fraud was detected, and the city, to save its property, paid the tax under protest, and then brought action against the collector to recover the amount so paid. The ground of its action was that the business of distilling spirits by Salt Lake City was ultra vires. The very impudence of the contention provoked the court to pungent ridicule of the plaintiff's action, and naturally strong language was used in refuting its absurd contention and denying its demand. But the question in the case was not whether a municipality is liable in a civil action to an individual injured by the tortious acts of its agents or officers ultra vires, but only whether it could recover from the government a sum of money paid under protest to avoid seizure of its property for a lawful tax and pen

alty. The gist of the decision is found in the following excerpt from the opinion: "A municipal corporation cannot, any more than any other corporation or private person, escape the taxes due on its property, whether acquired legally or illegally; and it cannot make its want of legal authority to engage in a particular transaction or business a shelter from the taxation imposed by the government on such business or transaction by whomsoever conducted."

The fundamental rules of law upon which a person or corporation becomes liable for a tax are so widely different from those which declare liability for a tort that even these cogent words of Justice Miller, used argumentatively in the decision of a revenue case, are not likely to unsettle the logical rule as to torts to private individuals established by the concurrent decisions of courts of last resort through scores of years in the United States.

CHAPTER VII.

DEBTS, FUNDS AND TAXES.

104. Municipal indebtedness.-Within the scope of its charter powers, a municipality, in the exercise of corporate functions and transaction of municipal affairs, may incur indebtedness to any extent not forbidden by law.

Clothed with the power of eminent domain, and the inherent power to contract, and required to exercise police powers (some of these at its peril), a municipality must necessarily incur large expense, the amount of which, under the American rules of local self-government, properly rests in the discretion of the municipality; and, in the absence of constitutional or statutory limitations, this discretion as to amount is unbounded." The law is, however, imperative that to constitute a valid indebtedness, the expenditure must be incurred within charter powers and for municipal purposes.

105. Debt limitation.-Limitation to municipal indebtedness may be fixed either by statute or constitution, beyond which no obligation can be incurred by the municipality.

The limit is usually fixed at a certain per cent. or aliquot part of the total assessed value of real estate, or real and personal property, in the corporate

77 Coggeshall v. Des Moines, 78 Iowa 235, 41 N. W. 617; City of Galena v. Corwith, 48 Ill. 423, 95 Am. Dec. 557.