tained against the city, in its corporate capacity; and whether such action can be maintained, is the question which has been mainly considered in the present case.

The argument strongly pressed by the defendants is, that if the officers of the corporation, within their respective spheres, act lawfully and within the scope of their authority, their acts must be deemed justifiable, and nobody is liable for damages, and if any individual sustain loss by the exercise of such lawful authority, it is damnum absque injuria. But if they do not act within the scope of their authority, they act in a manner which the corporation have not authorized, and in that case the officers are personally responsible for such unlawful and unauthorized acts.

But the court are of the opinion that this argument, if pressed to all its consequences, and made the foundation of an inflexible practical rule, would often lead to very unjust results.

There is a large class of cases in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known at the time the act is done whether it is lawful or not. The event of legal inquiry, in a court of justice, may show that it was unlawful. Still, if it was not known and understood to be unlawful at the time, if it was an act done by the officers having competent authority, either by express vote of the city government, or by the nature, of the duties and functions with which they are charged, by their officers, to act upon the general subject-matter, and especially if the act was done with an honest view to obtain for the public some lawful benefit or advantage, reason and justice obviously requires that the city, in its corporate capacity, should be liable to make good the damage sustained by an individual, in consequence of the act thus done. It would be equally inju rious to the individual sustaining damages, and to the agents and persons employed by the city government, to leave the party injured no means of redress, except against agents.employed, and by what at the time appeared to be competent authority, to do the acts complained of, but which are proved to be unauthorized by law. And it may be added that it would be injurious to the city itself, in its corporate capacity, by

paralyzing the energies of those charged with the duty of taking care of its most important rights, inasmuch as all agents, officers and subordinate persons might well refuse to act under the directions of its government in all cases where the act should be merely complained of and resisted by any individual as unlawful, on whatever weak pretense; and conformably to the principle relied on, no obligation of indemnity could avail them.

The court are, therefore, of opinion that the city of Boston may be liable in an action of the case, where acts are done by its authority, which would warrant a like action against an individual, provided such act is done by the authority and order of the city government, or of those branches of the city gov ernment invested with jurisdiction to act for the corporation, upon the subject to which the particular act relates, or where, after the act has been done, it has been ratified by the corporation, by any similar act of its officers.

That an action sounding in tort, will lie against a corporation, though formerly doubted, seems now too well settled to be questioned. Yarborough v. Bank of England, 16 East., 6; Smith v. Birmingham, etc., Gas Light Co., 1 Adolph. & Ellis, 526. And there seems no sufficient ground for a distinction in this respect between cities and towns and other corporations. Clark v. Washington, 12 Wheat., 40; Baker v. Boston, 12 Pick., 184.

Whether a particular act, operating injuriously to an individual, was authorized by the city, by any previous delegation of power, general or special, or by any subsequent adoption and ratification of particular acts, is a question of fact, to be left to a jury, to be decided by all the evidence in the case. As a general rule, the corporation is not responsible for the unauthorized and unlawful acts of its officers though done colore officii; it must further appear that they were expressly authorized to do the acts by the city government, or that they were done bona fide in pursuance of a general authority to act for the city on the subject to which they relate; or that, in either case, the act was adopted and ratified by the corporation. Ast the evidence was not submitted to the jury in the present case, and the fact does not appear, but it is only found that the acts

complained of were done by officers of the city, the court are of the opinion that the verdict must be set aside and a

NEW TRIAL GRANTED.

A MUNICIPAL CORPORATION MAY BE LIABLE FOR A TRESPASS ON REAL PROPERTY.

THIRTY-SECOND SELECTED CASE.

SHELDON V. KALAMAZOO.*

MUNICIPAL CORPORATION: HIGAWAY.-A municipal corporation is liable to an action for an invasion of private property, unlawfully and forcibly taken for a way, under directions of the corporation board of trustees and corporate officers.

DUE PROCESS OF LAW: MUNICIPAL BOARD: JUDICIAL ACTION: INTERESTED PARTY CANNOT ACT AS JUDGE.-Whether a highway lawfully exists over private property is a question which cannot be settled against the owner without the right to a trial in due course of law; and the municipal board cannot decide upon it so as to bind him, and acts at its peril in attempting it. Such municipal action is not judicial, and if it were it would be void, because an interested party cannot be a judge in his

own cause.

MUNICIPAL CORPORATION: HIGHWAY: ENCROACHMENT: VILLAGE MARSHAL. A municipal corporation cannot properly make a forcible entry upon premises in private occupancy under pretense of encroachment on a highway; but it should resort to legal proceedings before it can disturb a continued possession under claim of right. Compelling a village marshal to use such force, under threat of removal if he should not do so, would be a gross violation of duty and propriety.

Error to Kalamazoo Circuit.

CAMPBELL, J.-The present controversy arises out of certain actions of the marshal of the village of Kalamazoo, in pursuance of a resolution of the village board, in entering upon a close of the plaintiff and throwing down his fences, on a claim that he was occupying part of the village street.

*24 Mich., 383 (1872).

The plaintiff proved title to the land and offered to show a resolution of the president and trustees of the village, duly assembled, whereby the committee on streets were directed to notify all persons on the line of the Olmstead road, so-called, who had encroached upon the road within the village limits, by the erection of fences, or otherwise, to remove their fences and cease to encroach on it, and on failure of any one to comply, that the committee were directed to notify the marshal forthwith to remove the fences, so that said encroachment would cease to exist. He further offered to show that his land adjoined said road and his fence stood on the line, but that defendants claimed the fence was in the road and encroached on it; that thereupon they passed said resolution, and, in pursuance thereof the street committee notified the plaintiff to remove the fence, and set it back ten or twelve feet on his land, which he refused to do; and thereupon the committee directed the marshal to tear down and remove the fence, and threatened to remove him from office unless he did so; and he therefore complied with their directions and removed the fence.

The court refused to allow any evidence to be received, basing the refusal on the ground (as we infer from the objections) that the president and trustees acted in the capacity of public officers and not municipal agents, and that the corporation is not liable for their acts in the premises.

The injurious act complained of is not a public grievance, but is a wrong done to a private person. It is not a wrong arising from neglect, but is the direct operation of a willful trespass. The case is therefore freed from all those complications which attend the discussion of questions of liability for neglects and for public grievances. And as the whole control over the subject of streets in the village of Kalamazoo is in the corporate authorities, there is no room for the consideration of those difficulties which arise where corporate action is aimed at matters entirely foreign to the concerns of the municipality.

The doctrine is entirely untenable that there can be no municipal liability for unlawful acts done by municipal authorities to the predjudice of private parties. In this respect, public corporations are as distinctly legal persons as private

corporations. There are officers who are corporation agents, and there are municipal officers whose duties are independent of agency and with distinct liabilities. But when the act done is in law a corporate act, there is no ground upon reason or authority for holding that if there is any legal liability at all arising out of it, the corporation may not be answerable. There is no conflict whatever in the authorities on this head. The only disagreement is concerning corporate responsibility in cases of alleged neglect of duty, and concerning the bounds of what may be termed their legislative discretion, as distinguished from their other action. To hold that positive wrongs must in all cases be considered as purely individual. and not corporate acts, would be a novelty in jurisprudence. Although not subject like corporations to the jurisdiction of courts, it has always been understood that even states and nations may be held responsible for the wrongs of their authorized agents, and the whole system of public law rests on this assumption. This idea, therefore, that a corporate body has a discretionary power to do wrong and not suffer for it, is not in harmony with any safe principle. There may be certain cases where there is, of necessity a final discretion; but there can be no absolute discretionary power over private persons and property. They are assured by the law of the land against any improper interference, and no public authority exists which can authorize their immunity to be taken away.

The act complained of here is a forcible taking of private lands for public use, without either compensation, or any steps under the forms of law to determine the necessity of taking them. The only justification of the act must be found in showing them to belong already to a lawfully existing public highway. This is a question of fact, and of private right, and the claimant of the land cannot be deprived, by any power in this State, from having his rights passed upon by the legal tribunals.

There are decisions which hold that when a corporate board has power to establish grades and other public works, merely incidental inconveniences will not authorize their honestly exercised discretion to be disregarded. How far this doctrine can be carried we have no occasion now to consider. The in