Jagadisan, J.
1. This Second Appeal arises out: of an action in tort filed by the-owner of a dog against a Municipal Corporation which killed the dog through its-servant in purported exercise of its statutory power.
2. B.T. Pillai a resident of Ariyanalloor Street in Shencottah owned a young dog of Fox Terrier Species worth about Rs. 50. On 20th December, 1954, the dog was out on the street accompanied by a servant of B.T. Pillai. One of the employees of the Municipal Council of Shencottah killed it. B.T. Pillai complained to the Municipal Council that his dog was killed by its employee unlawfully inspite of warning given to the employee by his own servant not to kill it. B.T. Pillai submitted in that complaint that the ' killing of his dog was illegal, high handed and unjustifiable ', that the incident caused him not merely financial loss but also mental anguish and that unless he was given redress adequately by the Municipality he would be constrained to sue it in a Court of law for damages.
3. To this the Municipality sent a reply stating that one of its servants, Mookan Nayakar was engaged in killing stray dogs found within the Municipal limits of Shencottah and that several stray dogs were killed on 20th December, 1954, and that one such strary dog was killed at a spot 20' away from the residence of B.T. Pillai. The reply further stated that the dog so killed was an old dog affected with serious skin disease, and that the dog was a source of danger to the residents of the town. The Municipality denied that the dog was killed deliberately without heeding the warning given by the servant of B.T. Pillai. Finally the Municipality justified its action under the provisions of Section 254 of the Travancore District Municipalities Act, (XXIII. of 1116.)
4. B.T. Pillai filed O.S. No. 9 of 1955 on the file of the District Munsif's Court of Shencottah against the Municipal Council, Shencottah, represented by its Commissioner for recovery of damages of a sum of Rs. 100 alleging that the defendant. Municiality was not justified in killing his dog in the manner it did, and that Section 254 of the Travancore District Municipalities Act cannot afford any protection to the Municipality to escape from the consequences of its wrongful act. The plaintiff claimed Rs. 50 as damages representing the value of the dog he lost and Rs. 50 as damages for the mental agony which he suffered consequent on the loss of his pet dog.
5. The defendant Municipality was not even willing to admit that the plaintiff's dog was killed and put forward a dubious defence bordering on disingenuity. Its primary defence, however, was that the wrongful act complained of was done only in exercise of its statutory power, and that therefore it was not liable to be sued in tort for damages. There was also a further defence that the suit itself was barred under Section 375 of the Act.
6. The learned District Munsif of Shencottah who tried the suit found that the plaintiff's dog was destroyed by the servant of the Municipal Council on 20th December, 1954, in pursuance of the direction of the Council. The action of the Municipal Council was found to he unlawful on the ground that Section 254 of the District Municipalities Act was inapplicable on the facts and circumstances of the case. On these findings the learned District Munsif decreed the suit in favour of the plaintiff as prayed for.
7. The Municipal Council preferred an appeal which was A.S. No. 171 of 1957 on the file of the District Court of Tirunelveli. The learned District Judge held that quite apart from Section 254 of the District Municipalities Act, the Municipality had the power to direct destruction of dogs straying in public streets. He further held that the employee of the Municipal Council who killed the dog acted in excess of the authority conferred upon him which was confined only to killing of stray dogs without owners, and that therefore the Municipal Council was not liable. The learned District Judge was also of opinion that Section 375 of the Municipalities Act was a bar to the maintainability of the suit. The judgment and decree of the trial Court were therefore set aside and the suit was dismissed.
8. This Second Appeal has been preferred by the aggrieved plaintiff. Exhibit III in the case is the extract from the proceedings of the Municipal Council, Shencottah, held on 2nd December, 1954. The proceedings are in Tamil and can be translated as follows:
It is resolved unanimously that as there is increasing nuisance of dogs in the town, dogs which are straying without safeguards and are capable of harming the people in general should be destroyed and any person who destroys such dogs shall be paid at the rate of four annas per dog.
The evidence on the side of the defendant was that there was proclamation by torn tom in the town of this resolution passed by the Municipal Council. There was some controversy on the question whether the dog that was killed bore a strap collar or not. The trial Court accepted the evidence on the side of the plaintiff and found that the dog had a collar. The learned appellate Judge however failed to record any definite finding in this behalf. It is unnecessary to advert to that fact in deciding the question whether the Municipal Council had authority to kill the plaintiff's dog or not. It is now established clearly and beyond all doubt that the plaintiff's dog was killed on 20th December, 1954 by Mookan Nayakar an employee of the Municipal Council of Shencottah in the course of the discbarge of his function of killing stray dogs in the Municipal Town of Shencottah expressly authorised by the Municipal Council.
9. The point for consideration is whether the Municipal Council can justify its action by taking shelter under Section 254 of the Travancore District Municipalities Act, 1116. Before discussing this question I must say that the learned District Judge was totally wrong in holding that the Municipality can authorise killing of dogs in public streets without even any statutory sanction for so doing. The fact that the Municipality has got some measure of control over the streets within the Municipal limits cannot and will not authorise the Municipal Council to direct killing of dogs sighted in the streets. It is in the nature of dogs to stray and to go about in the streets. The owner of a dog who fails to chain it and keep it in his house and thereby allows it to go about the streets does not commit any offence known to law. If such a dog bites a person or cattle or poultry belonging to another, the question as to how far the owner of the dog will be liable in an action on tort for damages is a question with which we are not now concerned. Even in such cases the owner of the dog will be liable only on proof of scienter or knowledge of the vicious propensity of the dog owned by him. Section 254 of the Travancore District Municipalities Act is as follows:
1. The Council may and, if so directed by the District Magistrate, shall give public notice that unlicensed pigs or dogs straying within specified limits will be destroyed.
2. When such notice has been given any person may destroy in any manner not inconsistent with the terms of the notice any unlicensed pig or dog (as the case may be) found straying within much limits.
10. The foundation of the right of the Municipal Council to destroy pigs or dogs as contemplated by this provision is that they should be unlicensed and that they should be straying within the limits specified. There is a dispute between the parties in the present suit whether there was a system of licensing dogs in the Shencottah Municipality on the date of the. destruction of the plaintiff's dog. The Sanitary Inspector of the Municipality gave evidence as D.W. 3 and he admitted that only from 1st April, 1955, a licence fee of Re. 1 per dog per year came lo be fixed in the Municipality. According to him prior to that date it was possible for the owner of a dog to obtain what he called a 'free licence'. But he was however unable to produce any register of licences so issued. It is clear that this Municipality had no system or machinery of licensing dogs or pigs before 1st April, 1955. The plaintiff could not therefore have obtained a licence for his dog prior to 20th December, 1954, the date on which his dog was destroyed. Mr. Ramamurthy Iyer, the learned Counsel appearing for the respondent Municipality submitted that the Act need not contain any specific provision for licensing dogs or pigs, and. that it is implicit in Section 254 itself that such licensing can be done. It is however, unnecessary for me to express any opinion on this question raised by him in the view which I am going to take in the matter.
11. The public notice contemplated to be given under Section 254(1) of the Act is that unlicensed pigs or dogs straying within specified limits will be destroyed. Sub-section (2) of Section 254 provides that when such notice has been given any person may destroy in any manner any unlicensed pig or dog found straying within such limits. Unless there is a public notice within the express provisions of Section 254(1) that unlicensed pigs or dogs will be destroyed, Section 254(2) will not be attracted so as to clothe any person with the authority to destroy. The resolution passed by the Municipal Council which was published by torn torn does not say that unlicensed dogs or pigs straying will be destroyed. The contents of the resolution show that rabid dogs straying in the streets are liable to be killed. I have no hesitation in holding that the public notice given of this resolution does not satisfy the requirements of Section 254(1) and Section 254(2) of the Act. The defence of the Municipal Council that the act complained of by the plaintiff was warranted by the provisions of Section 254 of the Act therefore fails.
12. Domestic animals like dogs are capable of being owned absolutely. The owner can maintain an action in trover for them and he retains his property in them even if they stray or are lost. In Halsbury's Laws of England, Volume I, page 689, paragraph 1314, it is stated as follows:
To kill, shoot, or injure another man's dog without legal justification is an actionable wrong at common law. It is no legal justification that the dog was trespassing. In order legally to justify such an act it must be proved that the act was reasonably necessary in the sense of being an act which a reasonable man would properly do to meet a real and imminent danger as, for example, to protect the person or to save property in peril.
13. In this case the Municipal Council hopelessly failed to prove any justification for killing the plaintiff's dog. Some attempt was made on the part of the Council to show that the plaintiff's dog was diseased. But there was no evidence of an acceptable kind to prove this. The learned trial Judge rightly rejected it for good and sufficient reasons. The Sanitary Inspector, D.W. 3, admitted that the dog was harmless.
14. There are provisions in other Municipal Acts corresponding to Section 254 of the Travancore District Municipalities Act. Reference may be made to Section 241 of the Madras District Municipalities Act. In every such enactment a public notice stating that unlicensed dogs straying in the streets will be killed has to issue before the destruction is brought about. There is no general power in Municipal Corporations to destroy animals supposed to be straying about in a manner harmful to the public. Section 133 of the Criminal Procedure Code, is as follows:
Whenever a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First Glass considers on receiving a police report or other information and on taking evidence (if any) as he thinks fit that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person owning or possessing such animal to destroy, confine or dispose of such dangerous animal in the manner provided in the said order and to appear before himself or some other Magistrate of the First or Second Class at a time and a place to be fixed by the order and move to have the order set aside or modified in the manner hereinafter provided.
It is to be noted that in the exercise of such power the concerned Magistrate has to issue notice before a final order is passed.
15. The next question to be considered is whether the Municipal Council is liable for the act of killing of the plaintiff's dog brought about by its employee who acted at the instance of the Council. A corporation is a fictitious and a legal person having an entity in law distinct from its members and by its very nature can only act through its servants or agents, and not in propria persona. It is settled law that a corporation is as much liable in an action on tort as an individual but there are conflicting theories on the legal basis of this liability, where the act of the corporation complained of is an ultra vires act. Professor Salmond in his text-book on the Law of Torts at page 65 observes:
It is now well settled, however, that the liability of a corporation for the torts committed by its agents, or servants is governed by the same rules as those which determine the liability of any other principal or employer. Thus a corporation can be sued for malicious prosecution or for malicious libel on a privileged occasion, or for fraudulent misrepresentation, no less than for trespass, conversion, or negligence.
It is commonly said, however, that this liability of a corporation for the acts of its agents or servants exists only where the scope of the authority or employment of those agents or servants is within the statutory or other legal limits of the corporation's powers, and that if a corporation goes beyond the limits set by law for its activities, and enters upon any business or undertaking which is ultra vires, it cannot be made liable for torts committed by its agents or servants in the course of that business or undertaking There is however no sufficient authority for any such exemption of corporations from the consequences of their disregard of the limits of their powers. It is contrary to practical requirements and has been rejected in numerous American decisions.
At page 67 it is further observed as follows:
The true principle is, it is submitted, the followig: 'Every act done, authorised, or ratified on behalf of a corporation by the supreme governing authority of that corporation, or by any person or body of persons to whom the general powers of the corporation are delegated, is for the purpose of the law of torts the act of the corporation itself, whether intra vires or ultra vires of the corporation, and the corporation is liable accordingly for that act or for any tort committed in respect of it by any agent or servant of the corporation within the scope of his authority or employment.
16. In Halsbury's Laws of England Volume I, Third edition, page 87 the position dealing with Corporations is set out thus:
A corporation aggregate is liable to be sued for any tort, provided that (1) it is a tort in respect of which an action would lie against a private individual; (a) the person by whom the tort is actually committed is acting within the scope of his authority; and (3) the act complained of is not one which the corporation would not, in any circumstances be authorised by its constitution to commit. Thus an action will lie against a corporation for conversion for trespass, for wrongful distress, for assault, for negligence, for nuisance, for false imprisonment, for infringement of a patent, for keeping a dangerous animal, for breach of trust, and even for fraud, and for torts involving malice, such as; malicious prosecution and libel.
Professor Winfield in his text-book on Torts has dealt with the matter thus at page 103:
A distinction must be taken between torts which are intra vires and torts which are ultra vires. Many corporations are expressly limited by the terms of their incorporation as to the acts which they may lawfully do. If they observe those restrictions they are said to be acting intra vires, and this is. still the case even when they commit a tort, provided it is done as an incident of some act which falls. within their powers. If it is not connected in this way with what they are lawfully entitled to do, the tort is said to be ultra vires.
At page 1o4 the learned author observes:
But if the ultra vires tort is committed in pursuance of the express authority of the corporation it is doubtful whether it is liable. There seems to be no direct decision on the point and the textbooks are not in agreement.
Winfield suggested
that on principle, the Corporation ought to be liable, for there was no reason to invoke the doctrine of ultra vires in this connection because the liability of the corporation is completely and rationally explicable without recourse to it. The principles, and the only principles, which, need have been applied are these. If the corporation expressly authorised X to commit the tort, it should be liable (together with X) just as any other joint tortfeasor would be liable. The fact that one of the joint tortfeasors is a corporation and not an ordinary person is irrelevant nor is there any need to describe the case as one of vicarious liability. No doubt vicarious liability is in. one sense a species of joint liability; but it is peculiar in that A (the employer of X) who ha s neither committed nor connived at X's tort may be liable jointly with X, provided the tort is within the scope of X's employment. But this italicised proviso is inapplicable to that species of joint liability which arises from A's express instructions to X to commit a tort. In that case it is immaterial - indeed it is senseless - to talk about 'scope of employment.' It is quite true that a corporation can act only through servants or agents, but it is a fallacy:
to argue that because an employer is vicariously responsible for the torts of his servant therefore he and the servant can never be liable as ordinary joint tortfeasors. If I order my butler to-assault you, he and I are ordinary joint tortfeasors; there is no question of vicarious liability.
17. Whatever difference of opinion there may be on the question of the abstract legal doctrine as to how far an agent or servant of a corporation can be said to act within the scope of his employment in respect of a tort which is ultra vires the corporation, it seems to be clear that there is consensus of authority for holding that a corporation cannot be immune from liability in respect of torts brought about at its instance on the ground that the act was not intra vires the corporation. Professor Salmond is of opinion that the act of the servant or the agent of the corporation is the act of the corporation itself and Professor Winfield is of the opinion. that in any event the corporation is a joint tortfeasor along with the agent or the servant. I hold that the defendant is liable for the unlawful act of having brought about the destruction of the plaintiff's dog and the fact that the Municipal Council acted in excess of its statutory powers is not a defence to the action but is only an aggravating circumstance.
18. There remains the question as to whether Section 375 of the Act bars the present suit. Section 375 is as follows:
No suit shall be maintainable against our Government, the Peishkar or any Municipal Chairman, Executive Authority, Officer or servant or any person acting under the direction of any Municipal Chairman or Executive Authority, Officer or servant, or of a Magistrate in respect of anything in good-faith done under this Act or any rule, bye-law, regulation or order made under it.
That Section bars a suit against the Government, the Peishkar or any Municipal Chairman, Executive Authority, Officer, servant or any person acting under the direction of chairman, executive authority, officer or servant or Magistrate in respect of anything done in good faith under the Act or any rule, regulation, bye-law or order under it. Executive Authority is defined under the Act in Section 3(10) as follows:
Executive Authority means in the case of a Municipality for which a Commissioner is appointed under Section 13, the Commissioner or if there is no Commissioner in charge the Chairman; and-n the case of any other Municipality the Chairman.
19. The present suit is against the Municipal Council as such represented by its .Commissioner. Section 375 does not bar such an action. I am of opinion that Section 375 is not an impediment to the maintainability of the suit. The plaintiff has claimed damages in the sum of Rs. 100 consisting of Rs. 50 the value of the dog lost and a sum of Rs. 50 the estimated measure of damages for the mental agony suffered by him. In my judgment the plaintiff will not be entitled to recover any damage for the mental pain and anguish suffered by him. He will however be clearly entitled to recover the sum of Rs. 50 representing the value of his pet dog.
20. In the result the Second Appeal is allowed, the judgment and decree of the learned District Judge are set aside and there will be a decree in favour of the plaintiff for Rs. 50 against the defendant. The appellant will have his costs in all the Courts. No leave.