Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/330

 § 335.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. are responsible 1 for the torts 2 of their agents and servants upon the same ground and to the same extent as individual princi- etc, of New York : "There are two kinds of duties which are imposed upon a municipal corporation ; one is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual ; the other is of that kind which arises, or is im- plied, from the use of political rights under the general law, in the exer- cise of which it is as a sovereign. The former power is private, and is used for private purposes ; the latter is public and is used for public purposes ; the former is not held by the municipality as one of the politi- cal divisions of the state ; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipal- ity is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it as one of the politi- cal divisions of the state, and is con- ferred 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 corporation is not liable for non- user, nor for misuser by the public agents. ... [ Such agents ] are not then the agents or servants of the municipal corporation, but are public officers, agents or servants of the public at large, and the corpora- tion is not responsible for their acts or omissions." 62 N. Y. 160, 164, citing Eastman v. Meredith, 36 N. H. 284 ; Fisher v. Boston, 104 Mass. 87. See also § 177, ante. The same rule applies to counties, Hughes v. 310 County of Monroe, 147 N. Y. 40, and villages, Fire Ins. Co. v. Keeseville, 148 N. Y. 46. The whole subject was exhaustively treated by Chief Justice Gray giving the opinion of the Massachusetts Supreme Court in Hill v. Boston, 122 Mass. 354, a case which held a city free from liability for an accident to a child due to the unsafe condition of a public school. Cf. Lichtensteiu v. Mayor, etc., of New York, 159 N. Y. 500. Statutes usually require the fulfillment of preliminary formalities (e.g., certain demands or filing of notices) before commencing suit against a munici- pality. See e. g., Missano i Mayor, etc., of New York, 160 N. Y. 123. Likewise the liability in tort of public charitable institutions, like a hospital, or a large "Boys' Club" open to all, is not as great as that of a corporation formed for profit. If due care is used in the selection of agents and servants such charitable corporations will not be liable for the special acts of neglect of the latter. McDonald v. Massachusetts General Hospital, 120 Mass. 432. See Ward ». Saint Vincent's Hospital, 65 App. Div. ( N. Y. ) 64, and compare Nims u. Mount Hermon Boys' School, 160 Mass. 177. 1 That is to say, legal relations oc- casioned by the tort will subsist be- tween the injured person and the corporation. 2 A tort is a fact with legal effect, other than a contract or agreement; a fact, that is, which occasions legal rules to manifest themselves in legal relations. Such fact may consist in an act or in an omission.