no particular interest and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community.' The power intrusted to the corporation in such cases is intrusted to it as one of the political divisions of the State, and it is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens. The officers who exercise this power arenot then the agents or servants of the municipality, but are public officers, agents or servants of the public at large,' and thecorporation is not responsible for their acts or omissions nor for the acts or omissions of the subordinates appointed by them.'

§ 851. Same Subject-Illustrations of this Rule.—In pursu ance of this rule it has been held that a municipal corporation is not liable for the negligence of its firemen or its fire-department;"

1 Jewett v. New Haven, 38 Conn. 368, 9 Am. Rep. 382; Torbush v. Norwich, 38 Conn. 225, 9 Am. Rep. 895; Elliott v. Philadelphia, 75 Penn. 842, 15 Am. Rep. 591; Ogg v. Lansing, 35 Iowa 495, 14 Am. Rep. 499; Brown v. Vinalhaven, 65 Me. 402, 20 Am. Rep. 709; Maximilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468; Meado. New Haven, 40 Conn. 72, 16 Am. Rep. 14; Robinson v. Evansville, 87 Ind. 334, 44 Am. Rep. 770; Greenwood . Louisville, 13 Bush (Ky.) 226, 26 Am. Rep. 263; Wilcox . Chicago, 107 Ill. 334, 47 Am. Rep. 434; Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762; McElroy v. Albany, 65 Ga. 387, 38 Am. Rep. 791: Calwell v. Boone, 51 Iowa 687, 33 Am. Rep. 154; Grumbine v. Mayor, 2 McArth. (D. C.) 578, 29 Am. Rep. 626; Pollock v. Louisville, 13 Bush (Ky.) 221, 26 Am. Rep. 260; Wallace . Menasha, 48 Wis. 79, 33 Am. Rep. 804; Rowland v. Gallatin, 75 Mo. 134, 42 Am. Rep. 395; Summers v. Commissioners, 103 Ind. 262,

53 Am. Rep. 512; Bryant v. St. Paul, 33 Minn. 289, 53 Am. Rep. 31; Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Richmond v. Long, 17 Gratt. (Va.) 375, 94 Am. Dec. 461; Dargan. Mobile, 31 Ala. 469, 70Am. Dec. 505; Stewart v. New Orleans, La. Ann. 461, 61 Am. Dec. 218; School District o. Williams, 38 Ark. 454.

See also the cases cited in the following section.

2 See cases in preceding note, and Prather v. Lexington, 18 B. Mon. (Ky.) 559, 56 Am. Dec. 585.

Maximilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468: Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196.

4 Jewett v. New Haven, 38 Conn. 368, 9 Am. Rep, 382; Torbush v. Norwich, 38 Conn. 225, 9 Am. Rep. 395.

Robinson v. Evansville, 87 Ind. 334, 44 Am. Rep. 770; Greenwood v. Louisville, 13 Bush (Ky.) 226, 26Am. Rep. 263; Wilcox v. Chicago, 107 m. 334, 47 Am. Rep. 434; Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep.

2

for the negligence, misconduct or trespasses of its police-officers' and magistrates; for the negligence of its health officers; for the trespasses of its assessors and collectors of taxes; for the negligence or misconduct of its selectmen," or aldermen," or overseers of the poor;' for the negligence of the employees of its commissioners of public charities; for the negligence or trespasses of its surveyor of highways; for the negligence of its boards for the revision and correction of assessments; 10 for the negligence of its department of instruction or of the agents or servants of that department;" for the negligence of the officers of its hospitals and asylums;" for the negligence of its common council acting in a special capacity by virtue of an act of the legislature, as commissioners for the improvement of a canal."

§ 852. Municipal Corporation not liable for Acts done ultra Vires. So a municipal corporation can not be held liable for the torts of its officers and agents committed in the performance of acts which were wholly beyond the authority or power of the corporation."

762; Hafford v. New Bedford, 16 Gray (Mass.) 297; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Hayes v. Oshkosh, 33 Wis. 314. 14 Am. Rep. 760; Burrill v. Augusta, 78 Me. 118, 57 Am. Rep. 788.

McElroy. Albany, 65 Ga. 387, 38 Am. Rep. 791; Calwell v. Boone, 51 Iowa 687, 33 Am. Rep. 154; Grumbine v. Washington, 2 McArth. (D. C.) 578, 29 Am. Rep. 626; Pollock v. Louisville, 13 Bush (Ky.) 221, 26 Am. Rep. 260; Buttrick v. Lowell, 1 Allen (Mass.) 172, 79 Am. Dec. 721; Campbell v. Montgomery, 53 Ala. 527, 25 Am. Rep. 656; Hart 0. Bridgeport, 13 Blatchf. C. C. 289; Cook v. Macon, 54 Ga. 468; Harris v. Atlanta, 62 Ga. 290; Odell v. Schroeder, 58 Ill. 353; Attaway v. Cartersville, 68 Ga. 740; Corsicana ʊ. White, 57 Tex. 382.

Grumbine v. Washington, 2 McArth. (D. C.) 578, 29 Am. Rep. 626,

3 Ogg d. Lansing, 35 Iowa 495, 14 Am. Rep. 499; Bryant o. St. Paul, 33

Minn. 289, 53 Am. Rep. 31; Spring v.
Hyde Park, 137 Mass. 554, 50 Am.
Rep. 334; Mitchell v. Rockland, 52
Me. 118, s. c. 45 Me. 496; s. c. 41 Me.
363, 66 Am. Dec. 252.

Rossire v. Boston, 4 Allen (Mass.)
57; Alger . Easton, 119 Mass. 77;
Dunbar v. Boston, 112 Mass. 75.
5 Cushing. Bedford, 125 Mass.
526.

Child . Boston, 4 Allen (Mass.) 41, 81 Am. Dec. 680. New Bedford . Taunton, 9 Allen (Mass.) 207.

Maximilian 160, 20 Am. Rep. 468. Walcott. Swampscott, 1 Allen (Mass.) 101.

. Mayor, 62 N. Y.

Tone. Mayor, 70 N. Y. 157. "Ham v. Mayor, 70 N. Y. 459. "Murtaugh v. St. Louis, 44 Mo. 480, Sherburne . Yuba County, 21 Cal.

113.

1 New York, &c., Lumber Co. . Brooklyn, 71 N. Y. 580. "Browning. Commissioners, 44

Neither is it liable for the illegal or unauthorized acts of its officers, though done colore officii, unless it previously authorized or subsequently ratified them.'

§ 853: Municipal Corporation is liable for Torts of its Servants and Agents committed in Execution of its Powers.-But it is equally well settled that for the acts of its servants and agents committed in the execution of its general powers, and either previously authorized or subsequently ratified, the municipal corporation is liable like any other master or principal.'

It may also be liable for the omissions and neglects of its servants and agents. Thus, says Judge DILLON, "The doctrine inay be considered as established that where a duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests, and not as a public agency, and is absolute and perfect, and not discretionary or judicial in its nature, and is one owing to the plaintiff, or in the performance of which he is specially interested, that the corporation is liable in a civil action for the damages resulting to individuals by its neglect to perform the duty, or for the want of proper care or want of reasonable skill of its officers or agents, acting under its direction or authority in the execution of such a duty; and, with the qualifications stated, it is liable, on the same principles and to the same extent, as an individual or private corporation would be under like circumstances."

Ind. 11; Haag v. Commissioners, 60 Ind. 511, 28 Am. Rep. 654; Mayor of Albany. Cunliff, 2 N. Y. 165; Cuyler v. Rochester, 12 Wend. (N. Y.) 165; Morrison v. Lawrence, 98 Mass. 219; Seele v. Deering, 79 Me. 343, 1 Am. St. Rep. 314; Cavanagh v. Bos. ton, 139 Mass. 426, 52 Am. Rep. 716; Hilsdorf v. St. Louis, 45 Mo. 94, 100 Am. Dec. 352; Hart v. Bridgeport, 13 Blatch. C. C. 289.

'Thayer v. Boston, 19 Pick. (Mass.) 511, 31 Am. Dec. 157; Brown v. Vinalhaven, 65 Me. 401, 20 Am. Rep.

709; Woodcock v. Calais, 66 Me. 234; Smith v. Rochester, 76 N. Y. 510; Trammell v. Russelville, 34 Ark. 105, 36 Am. Rep. 1.

2

Sprague v. Tripp, 13 R. I. 38, 43 Am. Rep. 11; Durkee v. Kenosha, 59 Wis. 123, 48 Am. Rep. 480; Aldrich v. Tripp, 11 R. I. 141, 23 Am. Rep. 434.

3 Dillon's Munic. Corp. § 980.

See Bailey . Mayor, 3 Hill (N.
Y.) 531, 38 Am. Dec. 669; Rochester
White Lead Works v. Rochester,3 N.
Y. 467, 53 Am. Dec. 316.
575

CHAPTER IX.

OF THE RIGHTS OF THE OFFICER AGAINST THE PUBLIC.

8854. In general. The officer also has rights against the public which it is desirable to consider. The most important of

these are, 1, The officer's right to compensation, 2, The officer's right to indemnity.

I.

THE RIGHT TO COMPENSATION.

855. Right to Compensation is created by Law, not by Contract. As has been seen, the relation between an officer and the public is not the creature of contract, nor is the office itself a contract. So his right to compensation is not the creature of contract. It exists, if it exists at all, as the creation of law, and, when it so exists, it belongs to him "not by force of any contract, but because the law attaches it to the office."

The most that can be said is that there is a contract to pay him such compensation as may from time to time be by law attached to the office.

§ 856. No Compensation can be recovered unless provided by Law.—Unless, therefore, compensation is by law attached to the office, none can be recovered. A person who accepts an office to which no compensation is attached is presumed to undertake to serve gratuitously, and he can not recover anything upon the ground of an implied contract to pay what the service is worth."

The rule is otherwise where a person undertakes to render service for a municipal corporation, not as a public officer but as its private agent. In such a case, he may recover the reasonable value..

§ 857. In Absence of constitutional Prohibition, Compensation may be altered, decreased or discontinued.- Neither is there any contract, except by virtue of a constitutional provision,

See ante, § 463.

See Fitzsimmons v. Brooklyn, 102 N. Y. 536, 55 Am. Rep. 835; Steu. benville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417.

'Hoboken v. Gear, 27 N. J. L. 265; Locke v. Central City, 4 Col. 65, 84 Am. Rep. 66.

State v. Brewer, 59 Ala. 130;

Wortham v. Grayson County, 13
Bush (Ky.) 53.

5 White . Levant, 78 Me. 568, 7 Atl. Rep. 539; Talbot v. East Machias, 76 Me. 415; Sikes v. Hatfield, 13 Gray (Mass.) 347; Walker v. Cook, 129 Mass. 578.

Detroit v. Redfield, 19 Mich. 376. But compare Sidway v. Park Commissioners, 120 Ill. 496.