corporating act prohibited the trustees of a village corporation from laying out any street so as to run over the site of any building the expense of removing which should exceed one hundred dollars. The object of this prohibition was considered to be to protect the taxpayers, as well as for the benefit of the owners of buildings. The trustees, in violation of the express prohibition, laid out a street in the site of which there was a building, the expense of moving which would exceed the sum named. In an action brought against the corporation by the land-owner whose property was taken for the street, it was decided by the Supreme Court of New York that the whole proceeding was a nullity, and that the corporation was not estopped to set up the want of jurisdiction in defence, notwithstanding the property of the plaintiff had actually been taken.1

511, approving text. City council Me. 294; Brown v. Vinalhaven, 65 Me. called out fire department to take part 402; post, §§ 1649, 1661; Donnelly v. in a centennial parade, and the hosecarts were carelessly run over the plaintiff; the city held not to be liable, as the service was not corporate or authorized by law. Smith v. Rochester, 76 N. Y. 506.

Tripp, 12 R. I. 97; Pierce v. Same, 13 R. I. 181; Cooney v. Hartland, 95 Ill. 516. A town held liable for a trespass committed by de facto officers. Clark v. Easton, 146 Mass. 43. Further as to acts of de facto officers: see Indextit. Acts; Officer. Trammell v. Russellville, 34 Ark. 105, where a town was held not liable in an action for false imprisonment, either by reason of having adopted an illegal ordinance, or because its mayor issued a warrant of arrest under the ordinance, or because the marshal made the arrest.

1 Cuyler v. Rochester, 12 Wend. (N. Y.) 165. The statutory prohibition is the turning point of this case upon which its soundness must, as it seems to us, rest. Browning v. Owen County, 44 Ind. 11; McCarthy v. Boston, 135 Mass. 197; supra, § 1630, and note; infra, § 1649, and note. That acts ultra vires, though done colore A city is liable for trespass upon the officii, impose no corporate liability: lands of others, Hickerson v. Mexico, See Baltimore v. Eschbach, 18 Md. 276; 58 Mo. 61; Hunt v. Booneville, 65 Ib. 284; State v. Kirkley, 29 Md. 85, Mo. 620, but only, as was held in 111; Horn v. Baltimore, 30 Md. 218, the case last cited, for single damages, approving Howell v. Buffalo, 15 N. Y. the statute as to treble damages not 512; Cole v. Nashville, 4 Sneed (Tenn.), being considered applicable to the case 162, cited ante, § 1630, note. Where a presented. The drift of the opinion city clerk fraudulently increased the of Hough, J., is against the applicaface value of warrants after they were bility of the statute to municipal issued, the city is not liable. Chandler corporations, but it is open to be v. Bay St. Louis, 57 Miss. 327; s. P. applied to a case where the trespass Sutton v. Carroll County Pol. Bd., 41 was committed by the municipality in Miss. 236; Sherman v. Granada, 51 bad faith or wilfully. Post, §§ 1740Miss. 186; New York & B. Lumber 1745. Where a city officer, while imCo. v. Brooklyn, 71 N. Y. 580; Mitch- proving a street, committed a trespass ell v. Rockland, 52 Me. 118, reaffirming upon private property, by taking s. c. 45 Me. 496; 41 Me. 363, where earth therefrom, without authority the health officers of a town, without to do so, it was held that he alone was authority of law, took possession of liable and not the city. Rowland v. the plaintiff's vessel, and in the process Gallatin, 75 Mo. 134. If a city officer, of fumigation, set it on fire, and the while removing obstructions from a town was held not liable. Similar street, enters upon private property principle. Barbour v. Ellsworth, 6 under a mistaken belief that the land

§ 1651 (971). Cases where Implied Corporate Liability exists for Wrongful Acts. Cases such as those just mentioned are to be distinguished from others which resemble them in the circumstance of relating to wrongful acts, but which arise out of matters or transactions within the general powers of the corporation, and in respect of which there may be a corporate liability. Thus, if in exercising its power to open or improve streets, or to make drains and sewers, the agents or officers of a municipal corporation, under its authority or direction, commit a trespass upon, or take possession of, private prop erty, without complying with the charter or statute, the corporation is liable in damages therefor.1 In such cases, also, an action will lie

is a public way, the city is not liable for the trespass. Manners v. Haverhill, 135 Mass. 165. Infra, § 1651.

ville, 28 Wis. 420; Whyler v. Bingham Rural Dist., L. R. [1901] 1 Q. B. 45. Infra, §§ 1653, 1655, 1740-1745, and cases.

approves of the rule as stated by Shaw, C. J., in Thayer v. Boston, 19 Pick. (Mass.) 511, supra); Buffalo & H. Conniff v. San Francisco, 67 Cal. Turnp. Co. v. Buffalo, 58 N. Y. 639; 45; Langley v. Augusta, 118 Ga. 590; Stoddard v. Saratoga Springs, 127 N. Allen v. Decatur, 24 Ill. 332 (tres- Y. 261, 268, citing text; Seeley v. pass); Platter v. Seymour, 86 Ind. Amsterdam, 54 N. Y. App. Div. 9; 323; Walling v. Shreveport, 5 La. An. Brink v. Dunmore, 174 Pa. 395; O'Don660; Hawks v. Charlemont, 107 Mass. nell v. White, 24 R. I. 483; Hathaway 414; Ipswich Mills v. Essex County, v. Osborne, 25 R. I. 249; San Antonio 108 Mass. 363; Hill v. Boston, 122 v. Mackey, 14 Tex. Civ. App. 210; GalMass. 344; Etna Mills v. Waltham, veston v. Brown (Tex. Civ. App.), 67 126 Mass. 122; Gordon v. Taunton, S. W. Rep. 156; Crossett v. Janes126 Mass. 349; Bailey v. Woburn, 126 Mass. 416; Waldron v. Haverhill, 143 Mass. 582; Hildreth v. Lowell, 11 Gray (Mass.), 345; Anthony v. Adams, 1 Met. (Mass.) 284, 287; Thayer v. Until a street has been opened and Boston, 19 Pick. (Mass.) 511, 516; compensation paid to the owner, the Sheldon v. Kalamazoo, 24 Mich. 383 city has no more right to the bed of (in which the corporation was held the street than any other stranger liable for a tort committed by direction would have; and the intrusion by of its council upon private property); the city upon such property is as Ashley v. Port Huron, 35 Mich. 296; much a trespass as if committed by Sewall v. St. Paul, 20 Minn. 511, 524, an individual. Thus if a city make citing text; Soulard v. St. Louis, 36 improvements in front of the lot of a Mo. 546; Hunt v. Booneville, 65 Mo. riparian owner without his consent, 620; Dooley v. Kansas City, 82 Mo. they belong to the owner in front of 444 (where a city authorized to pur- whose lot they are made. Baltimore chase property beyond its limits for a v. St. Agnes Hospital, 48 Md. 419; pest house was held liable for trespass Casey v. Inloes, 1 Gill (Md.), 510. So in having seized private property for where the charter of a borough gave that purpose without the consent of the warden and burgesses authority the owner), post, §§ 1740-1745, and to order the removal of all encroachcases; Allison v. Richmond, 51 Mo. ments upon any public highway of App. 133; Clay v. Board, 85 Mo. App. the borough, and, upon the order not 237; Tegeler v. Kansas City, 95 Mo. being obeyed, to cause them to be App. 162; Lee v. Sandy Hill, 40 N. Y. removed, the warden, acting officially, 442 (where a corporate liability was and under a vote passed by the warden asserted for the torts of the highway and burgesses, caused a fence of a officers in encroaching upon the plain- person along the line of the highway to tiff's property by direction of the be removed, the owner not obeying an governing body of the corporation, order previously made for its removal. under the erroneous supposition that The fence was in good faith supposed it was part of the street. Mason, J., by the warden and burgesses to be an

against a city corporation by the owner of land through which its agents have unlawfully made a sewer,1 or for trees destroyed and injuries done by them.2 A case in Louisiana, which was several times before the courts in that State, was decided upon the same principle. The mayor of a city tortiously, and in defiance of an injunction, proceeded at the head of a force of laborers and demolished a portion of the plaintiff's house, for the supposed reason that it was on public ground. The city corporation ratified the act by defending it. On the first appeal the court doubted whether the corporation could be made liable for the wrongful acts charged against its officers, especially as these were alleged to have been done by them wilfully and maliciously. On the second appeal it was held, that although the acts of the mayor were done without the previous order of the city council, yet the corporation, by reason of its subsequent ratification, was liable, and the plaintiff recovered.3

encroachment, but was not so in fact. not specifically conferred, as, in In an action of trespass brought by this case, building a sewer under its the owner of the fence against the general power over highways, the borough, it was held, city will be liable in damages. Leeds v. Richmond, 103 Ind. 372. Contractors who made an excavation in a street without proper authority, held personally liable to an owner of adjoining property. Larned v. Briscoe, 62 Mich. 393.

(1) That was the grant of power, though to the warden and burgesses, was in reality to the borough. (2) That the power to remove encroachments was a power asked for and obtained by the borough for its own advantage and not for the benefit of the public. (3) That in the removal of encroachments it was therefore exercising a privilege, not discharging a governmental duty. (4) That the borough was liable for the acts of the warden. Weed v. Greenwich, 45 Conn. 170.

The doctrine that a city is liable for injuries caused by the negligent manner in which public work is performed by its servants does not extend to cases of defective legislation; as, for instance, to a failure to pass an ordinance for the condemnation and dedication, as a street, of land upon In Soulard v. St. Louis, 36 Mo. 546, which work has been done, under the supra, where a street was opened upon designation "street" in a special tax land without condemnation, the court bill. Carroll v. St. Louis, 4 Mo. App. held that an action might be main- 191. In Sprague v. Tripp, 13 R. I. tained by the owner; that he might recover as damages the value of the land appropriated, which, when paid, would, the court was inclined to think, work, ipso facto, a dedication thereof to the city.

Municipal corporations are limited to the exercise of powers conferred by charter or statute, and they are not liable for the acts of their officers under an ordinance which was wholly beyond their power to pass. Field v. Des Moines, 39 Iowa, 575. But for acts causing injury to private property committed by employees of a city in performing a work which is within the general powers of the city, though

38, the city owned, by purchase, lots upon a private way, and, by its highway commissioners, removed gravel therefrom and from the way, for use in repairing other streets, until the way became impassible. In an action by an owner of other land upon the private way, it was held that the commissioners were the agents of the city for whose acts in making the way useless the city was liable.

1 Hildreth v. Lowell, 11 Gray (Mass.), 345; Leeds v. Richmond, 102 Ind. 372.

2 Walling v. Shreveport, 5 La. An. 660; Ludlow v. Mackintosh (Ky.), 53 S. W. Rep. 524.

McGary v. Lafayette, 12 Rob.

§ 1652 (972). - Prima facie, a municipal corporation is not liable for the trespass and wrongful acts of its officers, though done colore officii; but it will clearly be liable therefor where the act, if not wholly ultra vires in the sense before explained, was expressly authorized by the governing body of the corporation, or where, without special authority, it was done by its officers in the scope of their duties and employment, and has been ratified by the corporation.1 Accordingly, a municipal corporation is not liable for the illegal seizure of the plaintiff's property by one of its officers, for an alleged violation of its ordinances, when, in fact, no such violation took place, and the corporation had not previously authorized the act, or subsequently ratified it by receiving the proceeds of the sale of the property seized, or in some other manner.2 If, however, the corporation, by its authorized action, adopts the wrongful acts of its officers, done in the line of official duty, it will be liable therefor, however it might be in the absence of such ratification. Therefore, where the officers of a city illegally seized the personal property of the plaintiff, and detained it,

Same Subject; Wrongful Acts done Colore Officii.

(La.) 668. On re-hearing, Ib. 674; s. c. again, 4 La. An. 440. Approved, Wilde v. New Orleans, 12 La. An. 15. See also Lee v. Sandy Hill, 40 N. Y. 442, supra, § 1651, note; Hunt v. Boston, 183 Mass. 303; ante, §§ 307, 777, note; s. P. and discussing liability of municipal corporations to exemplary damages, Hunt v. Boone ville, 65 Mo. 620. As to exemplary damages, see Chicago v. Langlass, 52 Ill. 256; Chicago v. Kelly, 69 Ill. 475; Ehrgott v. New York, 96 N. Y. 264. A non-resident merchant, whose property had been seized for a tax assessed under an invalid municipal ordinance, after the mayor and council had, with malicious intent to prevent his competing with resident merchants, passed a resolution declaring him by name to be within the ordinance, was held to have a right of action against the city for the tort. Gould v. Atlanta, 60 Ga. 164.

Clayton v. Henderson, 103 Ky. 228, 236, quoting text; supra, §§ 1647, 1648; Thayer v. Boston, 19 Pick. (Mass.) 511, 516, where the rule, as stated by Shaw, Ć. J., makes the corporation, without ratification, liable, also, for the acts of its officers "done bona fide, in pursuance of a general authority to act for the city on the subject to which they relate." Approved by Mason, J., Lee v. Sandy Hill,

40 N. Y. 442, 449; followed in Buffalo & H. Turnp. Co. v. Buffalo, 58 N. Y. 639. Compare Perley v. Georgetown, 7 Gray (Mass.), 464, cited infra, and statement of rule by _Metcalf, J.; Moore v. Fitchburg R. Corp., 4 Gray (Mass.), 465, 467; Howell v. Buffalo, 15 N. Y. 512, 519. Note remarks of Denio, C. J., p. 521; supra, § 1650, and note; Angell & Ames, § 311. See Munk v. Watertown, 67 Hun (N. Y.), 261; Noble v. Aasen, 10 N. Dak. 264; Horton v. Newell, 17 R. I. 571; Parks v. Greenville, 44 S. Car. 168; Ysleta v. Babbitt, 8 Tex. Civ. App. 432.

2 Fox v. Northern Liberties, 3 Watts & S. (Pa.) 103; Everson v. Syracuse, 100 N. Y. 577; Corsicana v. White, 57 Tex. 382; Murray v. Omaha, 66 Neb. 279; Tyler v. Revere, 183 Mass. 98; O'Donnell v. White, 24 R. I. 483; infra, § 1656. So it was held that a city was not liable in tort for the act of its treasurer acting in good faith in the execution of his tax warrant, in seizing and selling the chattels of one person for the delinquent taxes of another. Wallace v. Menasha, 48 Wis. 79, citing text. But where an officer seized and sold property to pay a void special assessment for benefits in opening a street, the city was held liable. Durkee v. Kenosha, 59 Wis. 123, distinguishing Wallace v. Menasha, supra.

whereupon the plaintiff brought suit against the city to recover the property, and the city filed an answer which involved a ratification of the acts of the officers in question, and an admission that they were the acts of the city, and the city was defeated in the suit, it was held liable for the damage done to the plaintiff by the illegal seizure and detention of his property. On the principle that a town is not liable for the trespasses or illegal acts of its officers or agents, unless such acts were done under its authority previously conferred, or have subsequently been ratified by it, it was held in Massachusetts that if a town collector, without being authorized, commits a person to prison for not paying a tax, since abated, though illegally included in his warrant, the town is not responsible, in an action of tort, for false imprisonment.2

§ 1653 (973). Same Subject; Trespass for Illegal Seizure of Property under Void Assessment. A municipal corporation may be liable as respects wrongful and void acts, where these are within the scope of the general powers of the corporation, and where the enforcement of such acts by its officers under its authority has been compulsory, resulting in injury to individuals. Falling within this principle is the liability of the corporation to refund void taxes and

In

1 Wilde v. New Orleans, 12 La. An. that they were so intended. Trescott 15, following McGary v. Lafayette, 4 v. Waterloo, 26 Fed. Rep. 592. La. An. 440; Johnson v. Municipality, New York, see Lorillard v. Monroe, 5 La. An. 100. In another case in the 11 N. Y. 392; Bank of Commonwealth same State it was held that though v. New York, 43 N. Y. 184. See also property be, in the first instance, law- Tyler v. Revere, 183 Mass. 98; Wilfully seized for the violation of an ordi- loughby v. Allen, 25 R. I. 531; Galnance, yet if the corporate authorities veston v. Brown (Tex. Civ. App.), fail to pursue the requisite steps in ad- 67 S. W. Rep. 156. But the treasurer vertising and disposing of the prop- of a town corporation is clearly its erty seized, the act of seizure by the officer and agent, for whose acts, officer becomes a trespass ab initio, for within the scope of his power, it is which the corporation, it was decided, liable. Tucker v. Rochester, 7 Wend. might be liable to restore the property (N. Y.) 254; cited 2 Denio (N. Y.), or pay its value. Baumgard v. New 473, and see cases there referred to. Orleans, 9 La. 119. See also Hunt v. But it is not liable for money placed Booneville, 65 Mo. 620; Langley v. in his hands by individuals or received Augusta, 118 Ga. 590; Brown v. by him other than in the line of his Webster City, 115 Iowa, 511; Don- official duties. Tolman v. Marlborough, nelly v. Tripp, Treas., 12 R. I. 97; 3 N. H. 57, 59. O'Donnell v. White, 24 R. I. 483; Com- The previous personal and unaumercial Power Co. v. Tacoma, 20 Wash. 288; Bunker v. Hudson, 122 Wis. 43.

2 Perley v. Georgetown, 7 Gray (Mass.), 464. Afterwards paying the collector's fees for serving the warrant, and the jailer's charges, were held not to ratify the arrest, it not appearing

thorized act of a public officer will not estop him from acting in his public capacity as he may deem the public good to require. Day v. Green, 4 Cush. (Mass.) 433; Dill v. Wareham, 7 Met. (Mass.) 438.

McGraw v. Marion, 98 Ky. 673, 680, quoting text.