
    John E. Reynolds, as Administrator of the Goods, Chattels and Credits of Charles E. Reynolds, Deceased, Respondent, v. The Board of Education of the Union Free School District of the City of Little Falls, Appellant.
    
      School—a board of education 'of a union free school district is not liable for tile acts of an “ attendance officer" although it was negligent in appointing him—the obligation to make rules prescribing his duties is discretiona/ry — an unlawful arrest is not within the scope of his authointy.
    
    The rule of respondeat superior does not’ apply to the relation existing between the board of education of a union free school district and an “ attendance officer” appointed by the former in compliance with the Consolidated School Law (Laws of 1894, chaps; 556, 671), and "the board of education is not liable for the act of such “attendance officer ” in wrongfully arresting a scholar by reason of which, in his efforts to escape along the line of a railroad, the scholar is killed.
    
      Semble, that this is so, although the board of education may have negligently discharged its duty in appointing and continuing to employ an unfit and incompetent person for such position, and' one not possessed Of such sound mind and memory as were reasonably requisite in the premises.
    
      The fact that the “ Consolidated School Law ” provides that the board of education “may make rules and regulations” for the performance of the “attendance officer’s” duties, does not make the adoption of such rules imperative where, by the use in other provisions of the statute of the word “shall,” it appears that the Legislature intended to distinguish in the' use of the two words, between mandatory and discretionary powers.
    
      It seems, that the act of an attendance officer in attempting to arrest a scholar who at the time of the attempted arrest was in the presence of his father, and was not a truant, being absent from school with the father’s permission to the knowledge of the officer, was not only an unauthorized, but was a criminal act, in the doing of which the officer was not acting within the scope of his authority.
    Appeal by the defendant, The Board of Education of the Union Free School District of the City of Little Falls, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the' 23d day of February, 1898, upon the decision of the court, rendered after a trial at the Oneida Special Term, overruling a demurrer to the complaint, based upon the- ground that the complaint did not state facts sufficient to constitute a cause of action, with notice of an intention to bring up for review upon such appeal an order, made at the Oneida Special Term and entered in the office of the clerk of the county of Herkimer on the 23d day of February, 1898, overruling said demurrer.
    The complaint alleged that Charles E. Reynolds, a boy of about eleven years of age (the deceased), was a son of the plaintiff and came to his death on the 28th day of April, 1897, as a result of the defendant’s negligence; that the defendant (the appellant) is a domestic corporation organized and created under the charter of the city of Little Falls and the Consolidated School Law of this State (Chap. 556, Laws of 1894); that under the provisions of the Compulsory Education School Law (Chap. 671, Laws of 1894) it was the duty of the defendant at all times mentioned to appoint and remove at pleasure-one or more attendance officers of such city and to fix their compensation, prescribe their duties not inconsistent with the School Law and to make rules and regulations for the performance thereof by the said officer.
    That in the month of April, 1897, the defendant appointed one Alonzo Murray as such attendance. officer and fixed his compensation and Murray entered upon such employment; that in said month of April and for several ■ months or years prior thereto the said Charles E. Reynolds .was a pupil and in regular attendance upon the public schools of the defendant corporation, and the complaint then proceeds as follows:
    “ That on the 28th day of said month the said. Charles remained out of school at the request and by direction of his parents for the purpose of assisting in the care of the younger children on that day during the absence of his mother from the city. That he sent word by a school mate to Ms teacher accordingly, and such excuse was duly received. . That in the afternoon of said day, the said Alonzo Murray, in the course of Ids'employment as such attendance officer, inquired of the said Charles why he was out of school and was informed substantially as above stated. That shortly thereafter the said Charles went to his father, the plaintiff herein, who was employed as a flagman upon the West Shore railroad at the Jefferson street crossing in said city of Little Falls, and told him' of such occurrence, and remained there with him.
    “VI. That a few minutes later, being about 2:40 p. m., as the plaintiff was . in the act of . lowering the railroad gates at said crossing for an approaching freight train, and while the said Charles was in the immediate care and custody of his said father, the said Alonzo Murray, acting in the scope of his employment'as the servant and agent of the defendant, suddenly appearéd and seized and arrested the said Charles as an alleged truant, and wrongfully and unlawfully assaulted him and dragged him into the middle of the road in order to take him into school, although ordered by the plaintiff to let the boy alone. That the said Charles thereupon broke away from the said' Murray, of whom he was much afraid-, and in order to escape ran under the gates which had been lowered at said crossing, whereupon the said Murray, continuing such assault, pursued him under said gates and across the- railroad tracks to the other side, and the said Charles, being in fear of. further assault by said Murray, and being thereby greatly -terrified,, turned .to come back to his father, and as he so ran,; the said Murray still pursuing him, the said freight train, which at that instant reached the crossing, struck the said Charles and he thereby sustained injuries of which-within a few hours he died'.'
    
      “ VII. That the death of the said Charles was caused without fault or negligence on his part by the wrongful and negligent acts of the defendant, and its servants and agents, as follows, as this plaintiff is informed and believes :
    “ a. -The defendant negligently discharged its duty in appointing and continuing to employ as an attendance officer the said Alonzo Murray, who was an unfit and incompetent person for such a position, and was not possessed of such sound mind and memory as were reasonably requisite.
    “ b. The defendant negligently omitted to prescribe the duties of such attendance officer or to make reasonable and proper- rules ■ and regulations for the performance thereof, or properly to supervise the enforcement of the law.
    “ g. The said Murray, as such servant and agent, negligently and wrongfully chased the said Charles to death.”
    Judgment was demanded for $10,000.
    
      S. H. Newberry, for the appellant.
    
      Edward P. White, for the respondent.
   Ward, J.:

The defendant is a body corporate created under the Consolidated School Law of this State. Sections 3 and 4 of title 16 (The Compulsory Education Law is title 16 of the Consolidated School Law) of that law require, in substance, that every child between the ages of , eight and sixteen years, in proper physical and mental condition to attend school, shall regularly attend upon instruction at the school in which at least the common branches of an English education are " taught, or upon equivalent instruction by a competent teacher for a certain period specified in the law ;■ that the persons in parental relations to the child shall cause the person to so attend.

By the 7th section of such title it is provided as follows : “The school authorities of each city and union free school district shall appoint and remove at pleasure one or more attendance officers of such city or district, and shall fix their compensation; and may prescribe their duties not inconsistent with this act, and may make rules and regulations for the performance thereof, and the superinten dent of schools of such city or district, if there be one, shall supervise the enforcement of- this act within said city or district.”

Section 8 of that title provides that “ the- attendance officer may arrest without warrant any child between eight and sixteen years of agé found away from his home who then is a truant from instruction. upon which he is lawfully required to. attend within the city or district of such' attendance officer. He shall' forthwith deliver a child so arrested either to the custody of a person in parental relation to the child, or of. a teacher from whom such child is then a' truant, or iñ cáse of habitual andt incorrigible truants, shall bring them before a police magistrate for -commitment by him to a truant school,” etc. ■ .

The theory,.upon which the plaintiff seeks to recover in this action is that Murray.bore such a relation to the defendant that his acts wei'e the acts of the defendant; that he was an improper person to be appointed to the position of attendance officer,.and that he executed his duties in attempting to arrest the deceased in an unlawful and negligent manner, and that for these acts the defendant corporation is responsible; that the statute has created the defendant a corporation, and that it is subject to1 the.liabilities of other corporations- whose employees, agents or servants are guilty of negligent acts resulting in injury to others. ' "

The attendance officer is a creation of the statute; the board of ■education is required to- make the appointment. ■ Though a corporation, the board of-education is only such to discharge the important ■duties connected with education that the statute requires; it has no private interests and derives no special benefit or advantage from its corporate capacity,, but its1 duties are essentially and exclusively of a public character. The rule of respondeat siiperior does not apply to the relations between the board of education and the attendance officer; that rule is based upon the- right which the employer ’ has to select his servants, to discharge .them if not competent or' skillful or well behaved,, and to direct and control them while in his ■employ. (Maxmilian v. Mayor, 62 N. Y. 163.)

The duties of the attendance officer are prescribed by the-statute ■and not by the board of education, although the board majr make regulations governing his conduct to some extent as the statute provides. ' The cases bearing upon this subject found in the reports relate mainly to municipal corporations and point out the dual relations of those corporations to the public and to private interests, and in so far as they touch upon the public duties of the corporations they are instructive upon the subject we are considering. These cases define" two kinds of duties that are imposed upon a municipal corporation; one is that kind which arises from a grant of a special power, in the exercise of which the municipality is as a legal individual; the other is that kind which arises or is implied from the use of political rights under the general law in the exercise of which it is a sovereign. The former power is private and is used for private purposes; the latter is public and is used for jmblic purposes ; the former is not held by the municipality as one of the political divisions of the State; the latter is. Where the power is intrusted to the corporation as one of the political divisions. of the State and is conferred 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 nonuser nor for misuser by the public agents. Where the duties which are imposed upon the municipality are of the latter class, they are generally to be performed by officers who, though deriving their appointment from the corporation itself through.the nomination of some of its executive agents by a power devolved thereon as a convenient mode of exercising the function of government, are yet the-officers, and hence the servants, of the public at large, and they are not under the control of the municipality; they are not its agents or servants, but are public officers, agents and servants of the jmblic at large, and the corporation is not responsible for their acts or omissions nor for the acts or omissions of their subordinates by them appointed. (Maxmilian v. The Mayor, supra, 164, 165 ; Eastmam v. Meredith, 36 N. H. 284; Fisher v. Boston, 104 Mass. 87 ; Lloyd v. The Mayor, 5 N. Y. 374; Bailey v. The Mayor, etc., 3 Hill, 538, et seq.; Hughes v. The County of Monroe, 147 N. Y. 49 ; Markey v. The County of Queens, 154 id. 675 ; Donovan v. The Board of Education of City of N. Y., 85 id. 117, 122; Springfield Fire & M. Insurance Company v. Village of Keeseville, 148 id. 46 ; Woodhull v. The Mayor, etc., 76 Hun, 390; McKay v. City of Buffalo, 9 id. 401; affd., 74 N. Y. 619 ; O’Meara v. The Mayor, Aldermen & Commonalty of the City of New York, 1 Daly, 425 ; New York & Brooklyn Saw Mill & L. Co. v. City of Brooklyn, 71 N. Y. 580: McDonald v. Massachusetts General Hospital, 120 Mass. 432; Hill v. Boston, 122 id. 344.)

Donovan v. The Board of Education (supra) was an action brought against the board by ■ the city of New York to recover •damages for injuries sustained by the plaintiff by falling into an -excavation in the yard óf premises occupied as a ward school. The plaintiff at the time of the accident was a scholar attending the school. The excavation into which the plaintiff fell communicated with the cellar of the school building and was provided with an ordinary grating, and the evidence tended to show that the opening had been negligently left uncovered at the time of the accident. The premises were in the special care ■ and keeping of the school trustees of the ward where- the building was located, who were authorized to appoint janitors for. the building and to employ masons in connection with the work. The accident was due to the negligence of the janitor or of the masons. Under the law the board of education had appointed the ward trustees, and it was. sought to hold the board responsible by reason of that fact and of its general . superintendence of the affairs of the city schools. Andrews, J., said: But this did not make them (the trustees) the servants or agents-of the board which appointed them. Their general authority and their power to make repairs was not derived from the defendant, but from the law.”

In addition to the cases cited, we' refer to recent decisions in other States in which the corporation or municipality has been held not responsible for negligent or other acts causing injury to third persons.

For negligently maintaining its lock-up in a defective condition whereby a prisoner was injured. (Gullikson v. McDonald, 64 N. W. Rep. [Minn.] 812.)

For the acts of a police officer while performing his duty in making an arrest of one charged with the violation of an ordinance. (Vaughtman v. Town of Waterloo, 43 N. E. Rep. [Ind.] 476.)

Not liable in damages for the death of one convicted in a corpo- . ration court and sentenced to work upon the public streets, although his death was occasioned while the convict was engaged in such work, and resulted from negligence on the part of the foreman who had been placed by the municipal authorities in charge thereof, and from the failure of such foreman to provide the convict after his injury with proper medical attention and treatment. (Nisbet v. City of Atlanta, 25 S. E. Rep. [Ga.] 173.)

Not liable for damages caused by the enactment and enforcement of a valid ordinance, though the ordinance shows an abuse by the municipality of a discretionary power with which it is vested. (Rosenbaum v. City of Newbern, 24 S. E. Rep. [N. C.] 1.)

A city not liable for damages to a property owner because it failed to prevent the erection of a wooden building on an adjoining lot in violation of an ordinance. (Harman v. City of St. Louis, 38 S. W. Rep. [Mo. Sup.] 1102.)

A municipality is not liable, in the absence of a statutory provision, for damages sustained by the tort of its officers. (Parks v. City Council of Greenville, 21 S. E. Rep. [S. C.] 540.)

City not liable for unlawfully arresting and imprisoning a person and incarcerating him in a filthy and improperly built and kept calaboose, since'the municipality can only act through its officers and agents, and is not responsible for their illegal acts in attempting to exercise police powers. (Blake v. City of Pontiac, 49 Ill. App. 543.)

The learned counsel for the plaintiff strenuously insists that allegations . in the complaint charge the defendant itself with specific negligence in appointing an incompetent person as attendance officer, and in failing to make proper regulations to govern his conduct, and this is the serious point in the case. The trend of the decisions we have cited sustain the proposition that a body corporate of'the character of this defendant, whose duties are of a public character only, is not liable for negligence which results from the execution of a statutory duty, unless the liability is expressly created by statute. This would seem to be the general rule. The exceptions to that rule generally arise in street and sewer cases, where the negligence is directly traceable to the act of the.corporation, or the corporation has created a nuisance, as illustrated in Seifert v. The City of Brooklyn (101 N. Y. 136). The statute we have quoted provides that the defendant “ may make rules and regulations for the performance ” of the attendance officer’s duties, thus leaving the matter discretionary with the board. But it is insisted that the word may ” should in this regard he construed as must,” and that the-duty of making the regulation was imperative,, and that the .courts have so held in cases where public duties were imposed. This rule does not prevail in a- case where the statute itself distinguishes, as this does, between what is mandatory and what is discretionary.

Thus it is' provided that the school, authorities “ shall appoint and remove * * * one or moré attendance officers, * *' * and shall fix their compensation, and may prescribe their duties not inconsistent; with this act, and ma,y make rules and regulations for the performance thereof.” So. far, therefore, as the allegation of negligence rests upon the failure to prescribe the duties and make rules and regulations is concerned, we may dismiss it from our .consideration, and all that remains of this feature of the case is the allegation of negligence in appointing Murray, who was an unfit and incompetent perso'n for the position. These are general allegations and conclusions. It does not appear from the complaint in what respect Murray was incompetent, further than that-he'was not possessed of such sound mind and memory as was reasonably requisite. This allegation is also vague and a conclusion, and it is doubtful whether these allegations are admitted by the demurrer. .

In McDonald v. Massachusetts General Hospital (supra) a hospital patient sued the corporation for unskillful surgical treatment by a house pupil, a functionary similar to a surgical interne. There was no evidence of any want of care in selecting the house pupil,' and the court held that, without such evidence, the action could not he maintained, and at the same time strongly intimated an opinion that it conld hot be maintained) even.with such evidence, for the reason that the corporation could not be held to have agreed to do more than to furnish hospital accommodation, which the plaintiff had had, and' also for the further reason that any judgment recovered against the corporation could only be satisfied out of the funds dedicated to the charity, which could not be lawfully used to pay it.

The difficulty of enforcing a collection of any judgment that might be recovered in this action, the members of the board of education not being personally liable in this action, exists here as well as in the Massachusetts case. _

In Perry v. The House of Refuge (63 Md. 20) it was held (citing this Massachusetts case) that the House of Refuge,, founded for the care, custody and reformation of convicts, vagrants and incorrigible youths, being a charitable organization, was not liable for damages for an assault by one of its officers on an inmate.

The difficulty with this branch of the plaintiffs contention is that the statute providing for the appointment of these attendance officers, and in defining their relations to the defendant, has" failed to make the defendant responsible for any negligence which it may have committed in reference to • the appointment and control of these officers.

In a later Massachusetts case (Hill v. Boston, supra), which was an action for an injury to a child while attending a public school which the city was bound by law to keep and maintain, the staircase was winding, and the railing thereof so low as to be dangerous, whereby the child fell over the railing and was hurt. It was charged that the city improperly constructed the schoolhouse, and had knowledge or notice of its dangerous condition. The duty to provide and maintain schoolhouses was imposed by general statutes upon all towns and cities. Géay, Oh. J., in writing the opinion of the court, after an exhaustive review of the decisions of England and in various States of this Union, laid down the broad proposition that the plaintiff could not recover, and rested the decision upon the doctrine that no private action, unless authorized by express statute, could be maintained against the city for the neglect of a public duty imposed upon it by law for the benefit of the public and from the performance of which the corporation receives no profit or advántage.

This conclusion seems well supported by the authorities cited by the learned court and would seem to dispose of the plaintiffs contention with reference to the principal point urged upon this review.

But another insuperable objection to the plaintiffs recovery in this action appears in another feature of the case. The complaint clearly shows that the deceased was not a truant; that he was not liable to arrest, and at the time of the arrest was in the presence of his father and was absent from school with his permission to the knowledge of the officer. His act was a bald, naked trespass; the pursuit of this child in the face of an approaching train at this dangerous point across the railroad track, against the express commands of the child’s father, was not only an unauthorized huta criminal act, and it cannot be claimed that the officer in doing the things enumerated in the complaint was acting within the scope of his authority,, and in this view of the case it is unimportant whether Murray was incompetent to . fill the position to which lie was appointed.

The interlocutory judgment should he reversed, and the demurrer sustained, with costs, with leave to the plaintiff .upon the payment of such costs to serve an amended complaint within twenty days.

All concurred.

Interlocutory. judgment reversed, with cost's, and the demurrer sustained, with costs, with leave to the plaintiff to amend upon payment of the costs of the demurrer and of the appeal.  