The claimant, against her will, was committed by a Police Court to a privately owned reformatory. There, without fault on her part, she sustained serious and permanent injury through negligence on the part of agents and employees of the reformatory. The custody of persons convicted of crime "is one of the functions of government which the state may exercise and which it may delegate to charitable institutions created under its laws." In the exercise of that delegated function the reformatory is "entitled to the same immunity from liability for damages * * * that is conceded to the state itself and to all its municipal divisions." (Corbett v. St. Vincent's IndustrialSchool, 177 N.Y. 16, 21.) Immunity from liability for injuries wrongfully inflicted upon an individual creates injustice. The moral obligation to compensate for such injuries may be clear, yet even in such cases the Legislature alone has power to waive the immunity. The courts have no power to destroy it.
By section 12-a CTC of the Court of Claims Act the State has waived its "immunity from liability for the torts of its officers andemployees." Now, it is said that the negligence of the private reformatory and its employees is the negligence of "officers" or "employees" of the State, and that the State may be charged with responsibility for the wrong suffered by the claimant at their hands. Such construction of the statute goes, I think, far beyond the plain meaning of its language. No case is cited where heretofore such responsibility has ever been asserted against the State.
The functions of government which the State may exercise directly or which it may delegate to corporations or quasi corporations, cover a broad field. The State commonly does delegate many of these functions to local governmental agencies. It is too well established to be disputed now that, in the promotion of public health and care of the sick, in public education, in police and fire *Page 358 protection, in the maintenance of jails, courthouses and police stations, hospitals, schools, fire departments, and in other activities which serve the welfare of the people of the State, municipal corporations exercise governmental functions and, except as otherwise provided by law, are immune from suit. (See McQuillin on The Law of Municipal Corporations, vol. 6, §§ 2792-2798.) Perhaps such immunity should be withdrawn from them by the State, but it can hardly be supposed that in enacting section 12-a CTC of the Court of Claims Act the State intended to assume liability for the negligent acts of governmental agencies which are themselves immune.
There is nothing in the language of the statute which can support a construction so extraordinary. It does not purport to create a new liability or a new wrong where none existed before. It merely waives the State's immunity from liability for the torts of its "officers and employees." These terms have well-established meanings. Certainly corporations, whether municipal or private, which exercise delegated governmental functions are neither officers nor employees of the State. That does not mean that an agent of the State cannot be its officer or employee. It does mean that a corporation does not become an officer or employee merely because the State has delegated to it some governmental functions.
Nothing said or decided in Maltby v. County of Westchester (267 N.Y. 375, 379) touches the question here presented. There the State did not delegate to the county of Westchester or to its Park Commission the function of road construction, but merely used the county as its own agent, as it might use an individual, for the building and construction of a road out of the moneys of the State. As Chief Judge CRANE pointed out in his opinion, the work "was being performed and paid for by the State through the Westchester County Park Commission as its agent." Even so, we held only that the county of Westchester was not liable. We did not pass upon the liability of the *Page 359 State. A special statute of the State expressly governed liability there.
That case illustrates the distinction between work performed by the State through an agent and work performed by a corporation in the exercise of a governmental function delegated by the State. Persons employed by an agent in performing the work of the principal are employees of the principal, not the employees of the agent. When the State delegates governmental functions to a corporation, municipal or private, the law has always recognized that the corporation in performing those functions acts as principal. Its contracts are binding upon it in its corporate capacity and it performs its work through its own employees. It has never been questioned that teachers, policemen, firemen, nurses and hospital attendants employed by a corporation in the performance of governmental functions are the employees of the corporation, not of the State. We held nothing to the contrary inMaltby v. County of Westchester (supra); but a decision that the corporation, while exercising a governmental function, acts as agent of the State, and that the State, except for its governmental immunity, is responsible for the torts of the corporation employed by it, may carry such consequences.
CRANE, Ch. J., O'BRIEN and HUBBS, JJ., concur with LOUGHRAN, J.; LEHMAN, J., dissents in opinion in which FINCH, J., concurs; CROUCH, J., not sitting.
Judgment affirmed. *Page 360