Hunt v. City of Boonville
65 Mo. 620
Mo.
1877
Check Treatment
Hough, J.

This wаs an action founded upon the first section of our statute in relation to “Trespasses.” The petition charged the defendant with digging up and carrying away from the land of the plaintiff' certain rock in which the defendant had no right or interest, and asked judgment for treble damages. The matеrial portion of the defendant’s answer is as follows : “ Defendant further answering said petition says, that on or about the 6th day of April, 1874, said defendant, by her agent, purchased of the American Bridge Company all the broken rock then being on said above described piece of grоund, and which was then occupied by said American Bridge Company as a stone yard ; that afterwards, at the request and with the consent of the mаnaging officer of said bridge company, and under and by virtue of the contract, previously entered into by and between .said bridge company and defendant, the agents and servants of defendant took and carried away a portion of said broken rock, so purchased and obtained from said bridge company as aforesaid; that at the time said rock was purchased and removed as aforesaid, said grоund was occupied by and was under the control of said American Bridge Company, except that portion thereof which was and is within the limits оf a street of said city of Boonville, known as Water street; that no part of said rock, so taken as aforesaid, was on ground in the pоssession or under the control of plaintiff, nor had said plaintiff' any right or interest in said rocks, so taken as aforesaid, or any part thereof.” The plaintiff replied, denying the foregoing allegations. The jury returned a verdict for the plaintiff', and found the value of the stone taken to bе $109.20, which sum was trebled by the court, and the defendant has appealed. There is no bill of exceptions.in this case, and the only question is whether the pleadings will support the judgement.

*623The city had authority under its charter to purchase and use stone for the purposes of the cоrporation, and the trespass ‍‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌​​​​​​​‌‌‌‌​​‌​​‌​‌‌​​​‌‌​‌​‌‍in this case did not result therefore from the doing of an unauthorized act. Nor is the case like that of Thomson v. The City of Boonville, 61 Mo. 283, wherе an act injurious to the plaintiff, but within the power of the corporation was performed by certain persons who assumed to act by аuthority of the city, but who were in fact without any lawful authority authorizing them to do the acts complained of, in which case it was held that the city wаs not liable. It is apparent in this case that the defendant was engaged in doing what it might lawfully do under its charter, and it does not appear thаt its servants acted without proper authority; but it is evident from the verdict of the jury that the American Bridge Company had no right to the possession of the' plaintiff’s land, nor any interest in the stone thereon, and could therefore confer none on the defendant, and for that reason the act of defendant in removing the stone amounted to a trespass, otherwise it would have been a legal, valid and binding exercise of corporate authority. It is argued for the defendant however, that as the city had no authority under its charter to commit a trespass, or to order the commission of a trespass, an order to its servants to do an act which, when performed, constituted a trespass, would not make the city liable, as both the order and the act would be ultra vires. This argument, fails to distinguish between the doing of an act in its nature unlawful, or prohibited, and the doing of an act in its nature lawful and authorized, at an unauthorized place, or iu an unlawful manner. On the defendants theory municipal corporations could never be held liable for the negligent or tortious ‍‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌​​​​​​​‌‌‌‌​​‌​​‌​‌‌​​​‌‌​‌​‌‍acts of their agents and servants. As they have no authority to do wrong and сannot authorize their officers or servants to do wrong, therefore, it is argued, they can never be held liable for injuries inflicted by thorn. This is an. unwholеsome doctrine and is not supported either by reason or authority. Soulard v. *624City of St. Louis, 36 Mo. 546; Hickerson v. The City of Mexico, 58 Mo. 61: Lee v. Village of Sandy Hill, 40 N. Y. 447; Dillon on Mun. Cor. § 769.

Whether a municipal corporation can be held liable fоr treble damages is an open question in this State, and one which admits of much doubt. The statute in relation to trespass gives treble damages аgainst any person who shall dig up, quarry or carry away any stones, ore, &c., in which he has no interest or right, being on land not his own. It is a statutory rule of construction in this State that the words “ any person ” shall be held to include bodies eoi’porate as well as individuals. It has been held, too, that this statute contemplates voluntary or willful trespass only, and not trespass ‍‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌​​​​​​​‌‌‌‌​​‌​​‌​‌‌​​​‌‌​‌​‌‍arising out of mistake or misapprehension. It is punitive in its provisions and is intеnded to inflict punishment only on the conscious wrong-doer. Private cói’porations are undoubtedly answerable in exemplary damages for the willful and malicious acts of their agents done in the course of their employment; Kennedy v. N. Mo. R. R. Co., 36 Mo. 351; Gillett v. Mo. Val. R. R. Co., 55 Mo. 315; and on the same principle they would be held to be included within the purview of the statute in relation to trespasses above cited. But we are inclined to think that a distinction should be drawn in this partiсular between private corporations, which are organized and conducted solely for the purpose of private and personal emolument, and public corporations, created by government for political purposes and exercising authority, dеlegated by the State, for the administration of the local and internal affairs of a city or town of a public character. There is rеspectable authority to the effect that a municipal corporation can not, as such, do a criminal act or a willful and malicious wrong and they cannot therefore be made liable for exemplary damages. City of Chicago v. Langlass, 52 Ill. 256; City of Chicago v. Martin, 49 Ill. 241; Field on Damages, § 80: “Nor could they, by a parity of reasoning,” ‍‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌​​​​​​​‌‌‌‌​​‌​​‌​‌‌​​​‌‌​‌​‌‍remarks the author last cited, “ become liable *625in double or treble damages under statutes providing for such, damages for willful or malicious trespass. Such acts, if done by its servants or agents, must be without authority, and ultra vires.” Hanvey v. City of Rochester, 35 Barb. 177. Besides, the relation which the officers of a municipal cоrporation sustain toward the citizens thereof for whom they act, is not in all respects identical with that’ existing between the stockholders оf a private corporation and their agents; ‍‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌​​​​​​​‌‌‌‌​​‌​​‌​‌‌​​​‌‌​‌​‌‍and there is not the same reason for holding municipal corporations, engaged in the performance of acts for the public benefit, liable for the willful or malicious acts of its officers, as there is in the case оf private corporations. We feel inclined, therefore, to hold that in the case presented the defendant is liable for single damages only, and as the petition is good as a common law petition, notwithstanding it asks relief which cannot be granted, the judgment will be reversed аnd the cause remanded, with directions to the circuit court to enter up judgment on the verdict for single damages. The other judges concur. Reversed.