The question raised by the demurrer to the plaintiff's declaration in this case is one of more than ordinary importance. The equitable plaintiff is a citizen of Frederick County, and on the 15th day of March, 1900, brought a suit at law in the name of the State in the Circuit Court for that county against the Board of County School Commissioners of Frederick County, under Art. 67 of the Code, to recover damages for the death of an infant daughter while a pupil of one of the public schools of the county, and whose death is alleged to have been caused by the negligence of the defendant.
The declaration substantially states that the defendant is a body politic and corporate under the laws of the State of Maryland, and as such has general control and supervision of the public schools and its property in Frederick County, and that it was its duty to keep this property in such condition as to be safe for the children attending the schools as pupils thereof; that the defendant was the owner of a certain lot of *Page 342 ground and building there situate in said county, and conducted upon the lot a public school known as "the Blue Mountain Public School" and had general supervision and control thereof; that on the 4th day of October, 1899, a single strand of wire was strung across the public school lot and firmly fastened upon trees growing thereon, and the wire was so strung and fastened at such a height above the ground as to be extremely dangerous to the pupils of the school when running and playing upon the lot; that the defendant wrongfully and negligently suffered and permitted the wire to be and remain upon the lot on the 4th of October, 1899, and a long time prior thereto. The declaration further avers that the daughter of the equitable plaintiff, on the 4th of October, 1899, while in attendance upon the public school, as a pupil and while running on the lot according to the habits of school children was knocked down and mortally injured by the wire aforesaid, which subsequently resulted in her death and for its alleged negligence in causing her death the plaintiff brings this suit.
The defendant demurred to this declaration, denying its liability in damages in this action, and from a judgment sustaining the demurrer, the plaintiff has appealed.
The question, then, presented for our consideration is, whether under the law, the defendant can be held liable in this action. The appellant contends that the defendant's liability arises under sec. 19, of Art. 77 of the Code, title Education, sub-title County School Commissioners, where the defendant is declared to be "a body politic and corporate" and is made "capable to sue and be sued," and that the declaration that the corporate body should be capable to sue or be sued should be construed as imposing unqualified liability in this respect.
Now it is well settled, we think, both upon principle and authority that at the common law, no action for tort could be maintained against a quasi corporation, and if the defendant is to be held liable in this case, it must be under the statute.Duer v. Dashiell, 91 Md. 668. In the case of City ofProvidence *Page 343 v. Clapp, 17 Howard, 161, the Supreme Court of the United States in passing upon a case where the suit was against the city of Providence to recover damages for an injury occasioned by an obstruction on the side-walk of one of its streets, said: "It is admitted that the defendants are not liable for the injury complained of at common law, but the plaintiff must bring the case within the statute to sustain the action." In Hill v.Boston, 122 Mass. 346, in which an action of tort was brought by a child who was attending a public school in a school house against the city of Boston for an injury suffered by reason of the unsafe condition of a staircase in the school house, it is said; although the English books contain numerous cases of indictments * * * for neglect to repair highways, c., no instance has been referred to, in the frequent discussion of the subject in England and in this country, in which an English Court has sustained a private action against a public or municipal corporation or quasi corporation for such neglect, except under a statute expressly or by necessary implication giving such a remedy. So in Mayor C.C. Balto. v. Pennington, 15 Md. 17;Mayor, c., v. Marriott, 9 Md. 173, and CountyCommissioners v. Duckett, 20 Md. 477, this Court placed the liability of a municipal corporation in an action in tort in those cases on the ground that the statute created it.
And this general doctrine is fully maintained by the following cases: Russell v. Men of Devon, 2 Term R. 661; 2 Dillon Mun.Cor., sect. 962, and Ang. Ames on Corporations, secs. 23, 24, 629; Hedges v. Madison Co., 6 Ill. 567; Riddle v.Merrimack Canal Co., 7 Mass. 169; Adams v. The State,82 Ill. 132.
We think, then, it is clear that a body corporate of the character of the defendant in this case, cannot be made liable in an action of tort, in the absence of statutory authority. We must then look to the statutes to ascertain if the Legislature has expressly or by implication conferred any such right as is sought to be exercised in this case. In other words, whether there is any statute authorizing a suit of this character to be maintained against the defendant. *Page 344
It is provided by sec. 3 of Art. 77 of the Code, that educational matters of the State affecting a county shall be under the control of a Board of County School Commissioners, and in sec. 19 of the same Article the board is declared to be a body politic and corporate, and shall be capable to sue and be sued,c., c., and to exercise all the powers and privileges granted to or vested in them. This Court said in School Commissioners ofWicomico Co. v. School Commissioners of Worcester Co.,35 Md. 203, that while the Act of 1868, ch. 407, did not in terms incorporate the Board of County School Commissioners for the counties, and while they were not incorporated as legal entities in the full sense of the term, they were quasi corporations, with full power to sue and liable to be sued, in respect to allmatters within the scope of their duties and obligations. This results as well from the objects and purposes of such bodies as the mode and manner of their organization. The Act of 1870, by express provision however incorporated the Boards of School Commissioners, and clothed them with full corporate powers with respect to their office and duties.
Now it is obvious, we think, that the Legislature intended by the use of the language "shall be capable to sue and be sued" to restrict the liability of the Boards of County School Commissioners to such suits, in respect to matters within the scope of their duties and to such things as the boards are empowered to do. We find nothing in the statutes that would justify a different conclusion, or would sustain the contention of the appellant in this case.
There is no power given the Boards of School Commissioners to raise money for the purpose of paying damages, nor are they supplied with means to pay a judgment against them. All of their funds are appropriated by law to specific purposes and they cannot be diverted by them. The Constitution of the State, sec. 3, Art. 8 provides that the school fund of the State shall be kept inviolate and appropriated only to the purposes of education. In Perry v. House of Refuge, 63 Md. 27, this Court distinctly held, in adopting the English *Page 345 decisions on the subject, that damages could not be recovered from a fund held in trust for charitable purposes. In the language of LORD CAMPBELL, the wrong-doer must pay from his own pocket. Head Amory v. Providence Ins. Co., 2 Cranch, 127;Rogers v. Burlington, 3 Wall. 669; McDonald v. Mass.Hos., 120 Mass. 432; Heriot's Hospital v. Ross, 12 Clark Finnelly, 507; Powers v. Mass. Hom. Hospital, 109 Fed. Reporter, 295.
It follows, then, from what we have said that the Board of County School Commissioners of Frederick County, the appellee in this case, is not liable in this action, and the judgment on the demurrer will be affirmed.
Judgment affirmed, with costs.
(Decided January 16th, 1902.)