are placed at the disposal of the corporation, they are clearly liable to the public if they unreasonably neglect to comply with the requirement of the charter. And when all the foregoing conditions concur, like individuals, they are also liable for injuries to person or property arising from neglect to perform the duty enjoined, or from negligence and unskillfulness in its performance. Id. And see ante, 595, art. 1, § 1, and cases cited.

§ 2. Liability for acts of officers or agents. See ante, 595, 602, art. 1, §1; art. 3, § 1. See, also, tit. Master and Servant. A distinction is made between the liability of municipal corporations for acts of its officers, in the exercise of powers which it possesses for public purposes, and which it holds as part of the government of the country, and those which are conferred upon it for private purposes. Within the sphere of the former, it enjoys the exemption of government from responsibility for its own acts and the acts of its officers deriving their authority from the sovereign power; while, in the latter, it is answerable for the acts of those who are in law its agents. Stewart v. New Orleans, 9 La. Ann. 461. And see Maxmilian v. Mayor, 62 N. Y. (17 Sick.) 160; S. C., 20 Am. Rep. 468; ante, 595, art. 1, § 1. Thus, a city, under power given by its charter, appointed an inspector of stationary steam boilers within the city, and passed a by-law imposing a penalty on any person who should use such a boiler without first having it tested by the inspector, and it was held that the city in making the appointment was in the discharge of a public, and not a private duty, and that the duties of the inspector were public duties, and, therefore, that the city was not liable for damage resulting from the negligence of the inspector in the discharge of his duties. Mead v. City of New Haven, 40 Conn. 72; S. C., 16 Am. Rep. 14. See, also, Fisher v. Boston, 104 Mass. 87; S. C., 6 Am. Rep. 196. But a city, like a private corporation, is held responsible for the act of its agents in borrowing money, since that act involves no exercise of sovereign power. De Voss v. Richmond, 18 Gratt. (Va.) 338.

§ 3. Liability of, on contracts. Municipal corporations are liable upon their authorized contracts, made by the proper officers or agents, in the same manner, and to the same extent as private corporations or natural persons. But their unauthorized contracts are void (see ante, 602, art. 3, § 1) and in actions thereon, the corporation may successfully interpose the plea of ultra vires. Hood v. Lynn, 1 Allen, 103; Burrill v. Boston, 2 Cliff. (C. C.) 590; Perry v. Superior City, 26 Wis. 64; Siebrecht v. New Orleans, 12 La. Ann. 496; Sillcocks v. Mayor, 11 Hun (N. Y.), 431; Gamble v. Village of Watkins, 7 id. 448; Vincent v. Nantucket, 12 Cush. 103; Hard v. City of Decorah,

43 Iowa, 313. Nor is a municipal corporation bound by contracts within the scope of its chartered powers, if made by officers or agents not thereunto duly authorized. Boom v. City of Utica, 2 Barb. 104. And see Bradley v. Ballard, 55 Ill. 413, 420; 8 Am. Rep. 656; Hodges v. Buffalo, 2 Denio, 110; Smith v. City of Albany, 61 N. Y. (16 Sick.) 444; Fox v. New Orleans, 12 La. Ann. 154.

But where such a corporation, in dealing with individuals, assumes powers upon which the validity of its acts depends, and subsequently it turns out that it does not possess the specific powers relied on, it is not thereby excused from performance of its obligations, if they can be performed through the agency of other powers which it does possess. Maher v. City of Chicago, 38 Ill. 266. See City of Chicago v. People, 48 id. 416. So, the opinion has been expressed that where a series of contracts has been openly made by the officers of a municipal corporation within the knowledge of the corporators who have acquiesced in, and derived benefit from them, the contracts are binding on the corporation, although not expressly authorized in its charter. Allegheny City v. McClurkan, 14 Penn. St. 81. But see Loker v. Brookline, 13 Pick: 343.

Assumpsit may be maintained against a municipal corporation in certain cases upon an implied promise. See Township of Norway v. Township of Clear Lake, 11 Iowa, 506; Pimental v. San Francisco, 21 Cal. 351; Town of Lemington v. Blodgett, 37 Vt. 215; Harlem Gas Light Co. v. Mayor, etc., of New York, 3 Robt. (N. Y.) 100; S. C. affirmed, 33 N. Y. (6 Tiff.) 309. Thus, if a city sells its void bonds, there is an implied assumpsit to repay the purchase-money. Paul v. Kenosha, 22 Wis. 266. So, a city has been held liable for gas furnished to it with knowledge of the council, though no ordinance or resolution was passed authorizing it to be furnished. Gas Company v. San Francisco, 9 Cal. 453. A city was likewise held liable under its charter upon an implied assumpsit to collect and pay over assessments awarded to property owners, for the opening of a street. Wheeler v. Chicago, 24 Ill. 105. And a contract was implied on the part of a city, which was bound to support its paupers and which had refused to pay a person who had furnished a pauper with necessaries. Seagraves v. Alton, 13 Ill. 366. See, also, Frankfort Bridge Co. v. City of Frankfort, 18 B. Monr. (Ky.) 41. It is, however, held to be the better opinion, that a promise to pay can never be implied in a case where the corporation possesses no power to contract. Burrill v. Boston, 2 Cliff. (C. C.) 590, 596.

Actions against municipal corporations to recover back money, paid to them for taxes, are usually brought in assumpsit for money had and VOL. IV.-80

received. Supervisors v. Manny, 56 Ill. 160. In order to maintain such actions, the tax or assessment must be illegal and void (Cook v. Boston, 9 Allen, 393; First Ecclesiastical Society of Hartford v. Town of Hartford, 38 Conn. 274; Powers v. Sanford, 39 Me. 183); and the payment must have been made upon compulsion, and not merely under protest. Haines v. School District, 41 Me. 246; Jenks v. Lima Township, 17 Ind. 326; Town Council of Cahaba v. Burnett, 34 Ala. 400. See Baker v. Cincinnati, 11 Ohio St. 534; Elston v. Chicago, 40 Ill. 514; Morris v. Baltimore, 5 Gill (Md.), 248; Lincoln v. City of Worcester, 8 Cush. 55. And the same principles apply to actions brought to recover back money paid for illegal license, taxes or fines imposed by a municipal court. Id.; McKee v. Town Council, Rice's (S. C.) L. 24; Cook v. Freeholders, 2 Dutch. (N. J.) 326.

A purchaser from a city corporation of its bonds, which are wholly void for want of power in the city to issue them, is entitled to recover back from the city the amount paid, as for a failure of the consideration, and in such case it is not necessary for the plaintiff to return or offer to return the void bonds before bringing suit. Paul v. City of Kenosha, 22 Wis. 266. So a purchaser of property from a municipal corporation under a void sale, who has acquired, from the corporation by virtue of the sale neither title nor possession to the property, is not required to convey back or transfer either to the corporation prior to the commencement of an action to recover back the purchase-money. Herzo v. San Francisco, 33 Cal. 134.

Where a person is injured in passing over a defective bridge, which two municipal corporations are jointly bound to keep in repair, and recovers against one of the corporations, it may recover contribution from the other. Armstrong County v. Clarion County, 66 Penn. St. 218; 5 Am. Rep. 368.

§ 4. Liability for negligence in general. With respect to negligence, a well-settled distinction is made between the liability of a municipal corporation proper, made such by acceptance of a village or city charter, and the involuntary quasi corporations known as counties, towns, school districts, and the like. The liability of the former is greater than that of the latter, even when the latter are invested with corporate capacity and the power of taxation. Hamilton County v. Mighels, 7 Ohio St. 109; Barnes v. District of Columbia, 1 Otto (U. S.), 540. Thus, municipal corporations proper are held liable, without any statute expressly giving the action, for injuries caused by unsafe and defective streets. Dewey v. Detroit, 15 Mich. 309; Smoot v. Mayor, 24 Ala. 112; Dayton v. Pease, 4 Ohio St. 80; Erie v. Schwingle, 22 Penn. St. 384. On the other hand, the decisions are

almost uniform to the effect, that counties and other quasi corporations are not liable to private actions for the neglect of their officers in respect to highways, unless such liability be expressly declared by statute. Bartlett v. Crozier, 17 Johns. 439; Eastman v. Meredith, 36 N. H. 284; Chidsey v. Canton, 17 Conn. 475; Mower v. Leicester, 9 Mass. 247; Browning v. City of Springfield, 17 Ill. 143; Soper v. Henry County, 26 Iowa, 264; Russell v. County of Devon, 2 Term R. 671. See, also, Bigelow v. Randolph, 14 Gray, 541; Bray v. Wallingford, 20 Conn. 416; Freeholders v. Strader, 3 Harr. (N. J.) 108; Van Eppes v. Commissioners, 25 Ala. 460; Treadwell v. Commissioners, 11 Ohio St. 190.

§ 5. Defective streets. In this country there is no common-law obligation resting upon quasi corporations, such as counties and townships, to repair highways, streets, or bridges within their limits. And even when the duty to repair is enjoined upon them by statute, and they have the power to levy taxes therefor, they are not generally held liable to be sued civilly for damages caused by the neglect to perform the duty, unless the action be expressly given by statute. See cases cited above. See, also, Pray v. Jersey City, 32 N. J. Law, 394; Granger v. Pulaski County, 26 Ark. 37; Waltham v. Kemper, 55 Ill. 346; 8 Am. Rep. 652; Bussell v. Town of Steuben, 57 id. 35. But it is otherwise, as respects chartered cities or ordinary municipal corporations. Browning v. Springfield, 17 Ill. 143. They owe to the public the duty to keep their streets in a safe condition for use, even in the absence of an express statute imposing the duty; and they are held liable in a civil action for special injuries resulting from a neglect to perform this duty (Id.; Sterling v. Thomas, 60 id. 264; Chicago v. Robbins, 2 Black [U. S.], 418; Clark v. Lockport, 49 Barb. 580; Erie City v. Schwingle, 22 Penn. St. 384; Blake v. St. Louis, 40 Mo. 569; Meares v. Wilmington, 9 Ired. [N. C.] L. 73); provided, however, it appears upon a fair view of the charter or statutes, that the duty rests upon the municipal corporation, as such, and not upon it as an agency of the State, or upon its officers as independent public officers. See ante, 595, art. 1, § 1; Winbigler v. City of Los Angeles, 45 Cal. 36; Pray v. Jersey City, 32 N. J. Law, 394; Detroit v. Blackeby, 21 Mich. 84; S. C., 4 Am. Rep. 450.

And it may become liable for neglect to keep a street in safe condition, without any formal acceptance of it as a street. Phelps v. City of Mankato, 23 Minn. 276.

So, a municipal corporation is bound to keep its streets in a safe condition for travel in the ordinary modes, by night as well as by day,

and, in case of failure to do so, it is liable for damages resulting therefrom. Mayor of Milledgeville v. Cooley, 55 Ga. 17. And the agents of a municipal corporation charged with the duty of keeping its streets in repair and in suitable condition for public travel are bound to exercise an active vigilance in the performance thereof, and where a defect or obstruction of a street has existed for a sufficient time, so that it has become notorious to those traveling, and such agents have had full opportunity to learn of its existence, and to remedy the defect or remove the obstruction, the corporation is chargeable with notice thereof, and is liable for the consequences of its neglect to restore the street to a good condition. Mayor, etc., of Atlanta v. Perdue, 53 Ga. 607; Todd v. City of Troy, 61 N. Y. (16 Sick.) 506; Chicago v. Hoy, 75 Ill. 530; Rosenberg v. City of Des Moines, 41 Iowa, 415; Cusick v. Norwich, 40 Conn. 375. But the municipal corporation is not an insurer against accidents upon the streets. It is bound to keep its streets in a reasonable safe condition, but not absolutely so. Rockford v. Hildebrand, 61 Ill. 155; Smith v. St. Joseph, 45 Mo. 449; Seward v. Milford, 21 Wis. 485; Williams v. Clinton, 28 Conn. 264. Nor is a municipal corporation bound to keep all of its streets in good repair under all circumstances, but only such streets and parts of streets as are necessary for the convenience of the traveling public. Craig v. City of Sedalia, 63 Mo. 417. It has, therefore, been held that a city is not liable for injury to a carriage and horses resulting from a failure to improve a street which was not needed for the use or convenience of the public. City of Henderson v. Sandefur, 11 Bush (Ky.), 550. Nor is a city liable for an injury caused by the combined effect of the unsafe condition of a highway, and the unlawful and careless act of a third person. Shepherd v. Chelsea, 4 Allen, 113. And it is held that where a person is using a highway simply for the purpose of play, and is injured by reason of a defect therein, he cannot maintain an action to recover damages therefor against the city which is bound to keep the highway in repair. Blodgett v. Boston, 8 id. 237. And see Chicago v. Starr, 42 Ill. 174.

A municipal corporation, while acting within the scope of its authority in making excavations in a street for the purpose of opening or improving it, using proper care and skill, is not liable to a lot owner for an injury resulting to his buildings from the removal of the lateral support of the soil in the street. City of Quincy v. Jones, 76 Ill. 231; S. C., 20 Am. Rep. 243.

§ 6. Defective sidewalks. Sidewalks, when necessary to be constructed for public convience are parts of the streets, and with respect to them a similar duty is imposed as in the case of streets; and for an