allowed where both the negligent and the injured employé are not engaged in the same department of service.104 ULTRA VIRES. 146. 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 ultra vires. A municipal corporation cannot confer upon its agents or officers lawful authority to represent it beyond the scope of its charter powers. For acts not governmental, but strictly corporate or municipal within the scope of the municipal powers exercised for a municipal purpose, the municipality may be liable for misfeasance; as in the negligent construction by officers of a sewer not authorized or directed by the municipal council; 165 or in the forcible and irregular taking of private property without pursuing the legal and authorized procedure for exercising eminent domain and compensating the owner.166 Or it may be liable for nonfeasance in failing to perform a municipal duty whereby individuals are injured either in person or property.167 But 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 164 Palmer v. Portsmouth, 43 N. H. 265; Wanamaker v. Rochester, 63 Hun, 625, 17 N. Y. Supp. 321. 165 Stoddard v. Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030. 166 Hunt v. Boonville, 65 Mo. 620, 27 Am. Rep. 299. 167 City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517; City of Ft. Worth v. Crawford, 74 Tex. 404, 12 S. W. 52, 15 Am. St. Rep. 840; Moore v. Los Angeles, 72 Cal. 287, 13 Pac. 855; Loughran v. Des Moines, 72 Iowa, 382, 34 N. W. 172. STANFORD LAW LIBKANT universal, recognition in America by the concurrent decisions of the courts for almost a century.1 168 It was applied in all civil actions for torts caused by the malfeasance of corporate officers or agents when pursuing any undertaking not within the scope of municipal purposes or powers, express, inherent, or implied; and it still remains the general doctrine of the courts, though not so firmly established and universally recognized as formerly. 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,169 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 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." 170 Concerning this a recent author says: "The effect of this decision is to broaden materially the view of liability of municipal corporations for torts, and it is a strong authority in support of the contention that these bodies should be liable for negligence in respect to their ultra vires acts. Such an act of the corporation is made doubly wrongful by the fact * 168 Wabaska Electric Co. v. Wymore, 60 Neb. 199, 82 N. W. 626. The acts of city authorities in cutting a ditch along the side of a lot outside the city limits are ultra vires, and hence the city is not liable for injuries resulting therefrom to the lot owner. Loyd v. Columbus, 90 Ga. 20, 15 S. E. 818. 169 118 U. S. 256, 6 Sup. Ct. 1055, 30 L. Ed. 176. 170 118 U. S. 261, 6 Sup. Ct. 1058, 30 L. Ed. 176. that it is in excess of the corporate power, and for the dam- if sound as respects private corporations, would seem not to Doctrine not Unsettled. An examination of this case shows the foregoing language of Mr. Justice Miller to be an obiter dictum, and supports the criticism of Judge Dillon. 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 a lawful assessment made upon the city as a distiller for the gallon tax upon the liquor actually produced and fraudulently omitted from the required report. To enforce the collection of this tax and penalty, the government was about to seize municipal property, whereupon 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,173 and naturally strong language was used in refuting 171 Jones, Negl. Mun. Corp. § 177. 172 2 Dill. Mun. Corp. p. 1192, note. 173 "It would be a fine thing, if this argument is good, for all distillers to organize into milling corporations to make flour, and proceed to the more profitable business of distilling spirits, which 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 penalty. And accordingly the digest syllabus thus accurately expresses the decision in the case: "A municipal corporation engaged in the business of distilling spirits is subject to internal revenue taxes under the laws of the United States, whether its acts in this respect are or are not ultra vires." 174 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." "175 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 arguendo 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. would be unauthorized by their charters or articles of incorporation; for they would thus escape taxation, and ruin all competition." 118 U. S. 259, 6 Sup. Ct. 1057, 30 L. Ed. 176. 174 3 Russ & W. Syl. Dig. p. 3517. 175 118 U. S. 262, 6 Sup. Ct. 1059, 30 L. Ed. 176. H 147. 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. A municipal corporation, as an agency of the state for more efficient local government, must inevitably incur expenses in the necessary performance of its various municipal functions. These expenses, unless paid for as fast as incurred, stand as obligations of the municipality, to be met and discharged like those of other corporations and individuals under the law. For this purpose the power of taxation is conferred upon the municipality, and thus annually it is supposed to receive sufficient revenue to discharge its indebtedness. But so rapid has been the growth of American cities and towns that it has been found impossible in practice to provide annual revenues equal to the annual expenditures; much less to provide them in advance. From this it results that American municipalities, as |