18 Iowa 199 | Iowa | 1865
The only question made by the demurrer is, whether, under such facts, the county is liable. It is understood that this case presents the same question which is involved in very many other contemplated ones, awaiting the result of this. Counsel have referred us to but one authority, The County of Mahaska v. Ingalls, 14 Iowa, 170; and that case has but little, if, indeed, it has any, bearing whatever upon the question involved in this.
While the relation which a public officer sustains to his constituency is, in many respects, not unlike that of master and servant, yet the respective rights and liabilities of the former are not always to be measured by the rules applicable to the latter.
It is a general principle, that a master is liable even for the tortious acts of his servants, which were done in his service, though he is not liable for the willful and malicious acts of the servant, nor for those entirely beyond or aside from his service. 1 Pars, on Contr., 87, and notes and authorities; The Richmond Turnpike Company v. Vanderbilt, 1 Hill, 48, 2 Comst. (N. Y.), 479, and authorities cited. And it is well settled that corporations are liable, in the same manner as individuals, for the action of their servants touching their business. Ang. & Am. on Corp., §§ 382, 383, 388, and authorities cited; Chestnut Hill, &c., Turnpike Company v. Rutter, 4 Serg. & Eawle, 6, and authorities cited.
The county cannot control the treasurer in the performance of his duty, nor in the appointment of his deputy, nor remove him from office before the expiration of the term for which he has been elected. He is, to a great extent, independent of the county, as such, although he is, like all other officers, liable to the general laws. To hold that, under such circumstances, the maxim, respondeat superior, was applicable, would be as much wanting in justice as it is in authority. Ang. & Am. on Corp., § 311; Thayer v. The City of Boston, 19 Pick., 511; Com., &c., v. Mighells, 7 Ohio St. R., 109; Mitchell v. Rockford, 41 Maine, 363; Hafford v. City of New Bedford, 16 Gray; Walcott v. The Inhabitants of Swampscott, 1 Allen, 101.
The treasurer collected the excess taxes of plaintiff without authority, as plaintiff might, before payment, with reasonable diligence, have ascertained. He collected them willfully, or, as plaintiff avers, “ fraudulently representing ” the greater sum as due, “knowing” the less to be the true amount. The county never received any portion of the excess. The treasurer having acted willfully wrong, and without previous authority, subsequent approval, or resulting benefit to the county, it is difficult to see upon what principle the county should be made liable.
It was not liable, and the demurrer was properly sustained.
Affirmed.