Boye v. City of Albert Lea

Municipal Corporation — Tort of Officers — Ultra Vires. A municipal corporation is not liable for tbe tortious act of its officers or agents, when the act is wholly ultra vires in the sense that it is not within the power or authority of the corporation to act in reference to the-matter under any circumstances. Same — When “Respondeat Superior” Applies. But if the act is within the general scope of the powers of the corporation, and was done in the execution of its corporate powers, but in such, a negligent or unlawful manner as to injure others the doctrine of respondeat superior applies, and the act may be the foundation of an action, in tort against the corporation. City of Albert Lea — Dam Across Shell Rock River. The act of damming the waters of Shell Rock river, of which Fountain lake is a part, is within the corporate powers of the city of Albert Lea.

Action in the district court for Freeborn county to abate a dam and to recover damages for overflowing plaintiff's land. A der murrer to the complaint having been sustained by Buckham, J., judgment was entered in favor of defendant, and plaintiff appealed therefrom. The action was one of six, in which the complaints were the same, save as to the names of plaintiffs, the description of the lands and the amount of damages, and in which identical demurrers were sustained. Separate appeals were taken by the respective plaintiffs, but it was stipulated that only the above entitled cause should be certified to the supreme court, and that all the causes should be heard as one. If the charter grant of power to control and regulate the flowage of the lake is valid, it appears on the face of the complaint that the act was within the express powers of the city, and the allegation that it was “without right so to do” refers only to the manner of exercise. But if the grant is invalid, it was an apparent power and within the general scope of the fundamental powers of the city. There is nothing to show that the acts were done in faith of the power. It is good pleading to allege the ultimate fact of the doing of the acts. Lee v. Minneapolis & St. L. Ry. Co., 34 Minn. 225, 227; Todd v. Minneapolis & St. L. Ry. Co., 37 Minn. 358. An - allegation that defendant “did” an act implies an averment that it was done in such manner as to be valid. Randall v. Constans, 33 Minn. 329; Alt v. Banholzer, 39 Minn. 511; Werth v. City, 78 Mo. 107; Stephens v. City, 11 Wash. 41; Norton v. City, 10 Wash. 44; North Platte v. City, 50 Neb. 853; Redford v. Coggeshall, 19 R. I. 313; Barrows v. City, 150 111. 588; City v. Crawford, 74 Tex. 404; City v. Harris, 101 Ala. 564; City v. Meyers, 2 Ind. App. 532; Mayor v. Ewing, 116 Ala. 576; Dooley v. City, 82 Mo. 444; Allison v. City, 51 Mo. App. 133; Clayton v. City (Ky.) 44 S. W. 667; Kane v. City of Indianapolis, 82 Fed. 770. The rule appears to be the same in actions on contracts. Hubbard v. Town, 61 Wis. 397; 4 Am. & Eng. Enc. PI. & Pr. 743; Call v. Hamilton, 62 Iowa, 448; Bank v. City, 16 Wash. 450; Burnham v. City, 69 Wis. 379. The words “without authority so to do” do not take away the sufficiency of the complaint. Defendant is liable for the acts which it has done while acting within its charter powers. Brink y. Borough, 174 Pa. St. 395; 2 Dillon, Mim. Corp. (4th Ed.) §§ 971-2; Schussler v. Board, 67 Minn. 412; Thayer y. Boston, 19 Pick. 511; 4 Am. & Eng. Enc. PI. & Pr. 743; Cohen v. Mayor, 113 N. Y. 532; Speir y. City, 139 N. Y. 6; Barrows v. City, 150 111. 588; City v. Crawford, supra; City v. Langham (Tex.) 13 S. W. 1042; City v. Ivey, 1 Tex. Civ. APP- 653; City v. Pragg, 31 Fla. 111. ■ The tort alleged is not such a wrongful act as a municipal corporation can commit. It does not appear that any municipal function was being performed. The acts must be deemed to have been those of private persons. Hill v. City, 122 Mass. 344. The work described is outside of municipal functions. 1 Dillon, Mun. Corp. § 97; Anthony v. Inhabitants, 1 Mete. (Mass.) 284. Power to regulate and control the flowage does not authorize the construction and maintenance of a dam. The corporation takes nothing by implication. Leavenworth v. Norton, 1 Kan. 432; Webster v. Town, 32 Conn. 131; Alley v. Inhabitants, 53 Me. 446; Hooper v. Emery, 14 Me. 375; Kyle v. Malin, 8 Ind. 34. The effect of the act, if it grants the power claimed, would be to authorize a nuisance, and such a nuisance as to constitute the taking of private property without compensation. Such statutes are held void, and there can be no corporate liability when the act complained of is not authorized by charter. Mayor v. Cunliff, 2 Comst. 165. The fact that public good or welfare of the corporation requires an act does not warrant it unless it comes within the scope of the powers delegated. Gale v. Inhabitants, 51 Me. 174; Booth v. Town, 32 Conn. 118; Barton v. City, 16 La. An. 317; Hasbrouck v. City, 13 Wis. 42; Chicago v. City, 79 111. 25. Defendant did not have exclusive care, supervision and control of the waters when the act was done. This was necessary to hold it liable. Kobs v. City of Minneapolis, 22 Minn. 159. The complaint does not show that the dam was built to regulate the flowage; or that any duty to build it was imposed; or that the act was negligently done or was a negligent act. When a city is doing an act for the benefit of the public, it is liable only for negligent execution of its duty. Bailey y. Mayor, 3 Hill, 531.