(Dissenting.) — If the law is as it is here decided to be, is it not strange that no text-book writer in England or America has ever been able to learn it? It does seem that such judges and text-book writers as Cooley, Kent, Story, Parsons, Shaw, Gibson, Beasley, Bush, Morawetz, Jaggard, and others of equal note, would have found it out, and not have misled the world-litigants and world-courts for a century or more. Is it possible that one decision of one court of the smallest state in the Union contains more wisdom than all other courts, and all text-writers on the subject? There is no> decision of any American court, nor opinion of any writer, in accord with the decision of this case, that does not base the opinion on the Rhode Island case cited in this opinion. It has been criticized scores if not hundreds of times, where it has been approved or followed once. One of the greatest courts in the United States, that of Pennsylvania, has spoken as follows: “I will not consume time by discussing the case of Glavin v. Rhode Island Hospital, 12 R. I. Ill [31 Am. Rep. 615], which to some extent sustains the opposite view of this question. There a hospital patient paying $8 per week for his board and medical attendance was allowed to recover a verdict against the hospital for unskillful treatment, and it was held that the general trust funds of a charitable corporation are liable to satisfy a judgment in tort recovered against it *604for the negligence of its officers or agents. It is at least doubtful whether, under its facts, the case applies; and, if it does, we would not be disposed to follow it in the face of the overwhelming weight of authority the other way, and of the sound reasoning by which it is supported.” — Fire Ins. Patrol v. Boyd, 120 Pa. 650, 15 Atl. 558, 1 L. R. A. 422, 6 Am. St. Rep. 754.
If the decision of this case is to stand as the law of this state, it cries loudly for the Legislature of Alabama to do what the Legislature of Rhode Island did —put the law of that state in line with that of all the other states by a statute. I ask the question: Should we fol-low the court of Rhode Island, when the decision of that court was deemed so bad by the people that they rid themselves of it by an express statute?
Judge Paxson, of the Pennsylvania court, speaking for the whole court, well expressed the law, according to my view, on the subject of respondeat superior, and I adopt his words: “That doctrine is, at best, as I once before observed, a hard rule. I trust and believe it will never be extended to the sweeping away of public charities — to the misapplication of funds specially contributed for a public charitable purpose to objects not contemplated by the donors. I think it may be safely assumed that private trustees, having the control of money contributed for a specific charity, could not, in case of a tort committed by one of their number, apply the funds in their hands to the payment of a judgment recovered therefor. A public charity, whether incorporated or not, is but a trustee, and is bound to apply its funds in furtherance of the charity, and not otherwise. This doctrine is hoary with antiquity, and prevails alike in this country and in England, where it originated as early as the reign of Edward Y, when it was announced in the Year Book of *605that period.” — Fire Insurance Patrol v. Boyd, 120 Pa. 647, 15 Atl. 557, 1 L. R. A. 417, 421, 6 Am. St. Rep. 752.
Judge Cooley, speaking of the same rule, says: “But this rule does not apply to a purely charitable corporation, having no capital stock and whose members receive no dividends or profits from its operations, and such a corporation is not liable for the torts or neglects of its servants in the performance of their duties. The officer of a public corporation in the discharge of the proper duties of his office is not, in general, to be deemed the servant of the corporation; neither is any person who is employed in any capacity in the execution of its police regulations, or in its fire department.- But in the management of its own property a public corporation comes under the same rules with all others, and its agents are its servants. — 2 Cooley on Torts, pp. 1011- 1013. .
In a note to this text (pages 1011, 1012) he quotes from the Connecticut court as follows: “We think the law does not justify such an extension of the rule of respondeat superior. It is perhaps immaterial whether we say that public policy, which supports the doctrine of respondeat superior, does not justify such extension of the rule; or say that the public policy which ¡encourages enterprises for charitable purposes requires ■exemption from the operation of a rule based on legal .fiction, and which as applied to the owners of such ■enterprises, is clearly opposed to substantial justice. .It is enough that a charitable corporation like the defendant — whatever may be the. principle that controls its liability for corporate neglect in the performance of •a corporate duty — is not liable, on grounds of public policy, for injuries caused by personal- wrongful neglect in the performance of his duty by a servant '.whom it has selected with due care; but in such case *606the servant is alone responsible for his own wrong.— Hemes v. Waterbury Hospital, 66 Conn. 98, 126, 33 Atl. 595, 31 L. R. A. 224."
Mr. Jaggard, in his work on Torts, states the law as follows: “Where a corporation, not municipal or quasi municipal, is engaged in public work: (a) Liability is determined by the rules applying to- private corporations, whenever such works are operated for-profit; and (b) its exemption is limited by rules as to municipal corporations, when it is a public charity." — Volume 1, p. 184.
Then, after reviewing and citing many decisions and text-books, he concludes as follows: “Following Halliday v. St. Leonard, it was held in Massachusetts that-a corporation established for the maintenance of a public charity is not liable for injury caused by its servants, if it exercises due care in their selection. In a later decision the responsibility of public charity is determined upon a more logical principle — that where the charity is performing a purely public duty, without profit, it is too- more liable for the negligence of officers and agents than the city would be.’ The reason for this better opinion is stated in Fire Ins. Patrol v. Boyd, by Mr. Justice Paxson, That, when a public corporation has no property or funds but what have been contributed for a special charitable purpose, it would be against all law and all equity to apply the trust funds thus contributed to compensate injuries inflicted by the negligence of its agents and servants.’ This is the generally recognized rule.” — 1 Jag. on Torts, p. 187.
The same doctrine is stated in Cyc. and in American & English Encyclopaedia of Law.
The whole doctrine of respondeat superior is at best a very, very harsh one; -it malíes one person answer for the sins of another. The law has wisely limited the-*607doctrine to cases in which the superior has a private or pecuniary interest in the sin or wrong committed by the other or inferior. It has never been extended, and never should be extended, to cases in which the superior has no private or pecuniary interest in the wrongful act. If the superior is acting for the public, and his acts are righteous and charitable, surely he ought not to be held liable for the sins of others, by whose acts he could not have been benefited whether carefully or negligently performed. It is a rule of law founded on public policy, if not on necessity, that purely public or charitable bodies or agencies are not liable for the negligence of their agents and servants, though they may be liable for their own negligence. Purely charitable institutions, in this respect, are on the same footing with municipal corporations. Messrs. Cooley and Dillon, and all other reputable text-writers, place the two in the same category. — See 2 Dillon on Munic. Corp., § 981, a,nd Cooley on Torts, p. 1011.
Municipal corporations are in terms exempt from liability on account of the negligence of their officers and agents, for the same reason that the sovereign — the state or the United States — is exempt. It is true that the state or the United States cannot be sued unless specially authorized so to be; but their exemption from liability on account of the negligence of their servants, agents, or officers rests upon the same principles as those which exempt municipal, or purely charitable corporations — that is, it is against public policy. If, however, the United States, the state, or a municipal or charitable corporation, ehgage in a private business or undertaking for profit, then quoad hoc it is liable just as is an individual or a private corporation. It may be that, even when liable, the state or the United States cannot be sued unless authorized by an express stat*608ute, yet they are nevertheless liable, and if suit could be brought judgment might be obtained.
It is stated in the majority opinion that the question here decided is new to this court. In this conclusion I cannot fully agree. In one sense, it is new; but in others it is hoary with age, and has been decided scores of times, and always contrary to the decision in this case. The case of White v. Alabama Insane Hospital, 138 Ala. 479, 35 South. 454; Lemell v. Western Kentucky Asylum for the Insane, 122 Ky. 213, 91 S. W. 671, 28 Ky. Lew Rep. 1129, 4 L. R. A. (N. S.) 269, 12 Ann. Cas. 827, is a recent concrete case. It is true that the opinion in that case based the nonliability on the ground that the defendant was a state institution; but, as I have shown, purely charitable corporations are in the same category as state institutions, and are exempt from liability for the same reason — that it is against public- policy that the public should suffer on account of the negligence of those administering the charity or serving the public. Is it the public policy of this state that property granted or donated to the public for charitable purposes should be diverted from this benevolent and public use, to a few individuals who may be injured in person, feelings, or estate, by the negligence of agents or servants who are administering the charity?
If the body or corporation is private in character, and is not serving the public, but only those it chooses, and is so serving them for profit, then, of course, it is not a public, or a charitable, institution, and the rule we are discussing has no application, though it be a hospital, a reform school, or other benevolent agency. If, however, the body or agency is serving the public, doing the work of the sovereign, not for gain, but purely for charity, then it is no more liable for the torts *609of its agents or servants than the state or the United .-States are liable for the torts of an agent or servant. rSuch charitable bodies or corporations, when created 'by the sovereign for this purpose, and so authorized ■ to do this duty of the sovereign, are only liable in those , cases in Avhich the sovereign. is liable. Corporations , created solely for purely charitable purposes, which , can do nothing except the work of the sovereign in min;istering charity to the subjects, are not, and ought not [to be, liable for the negligence of its servants or agents, if the sovereign itself would not be liable. This principle has been often stated and decided by this court, in the case of State v. Hill, 54 Ala. 67, it is said: “ it is plain,’ says Justice Story, That the government itself is not responsible for the misfeasances, or wrongs, , or negligences, or omissions of duty of the subordinate officers or agents, employed in the public service; for it does not undertake to guarantee to any person the - fidelity of any of the officers or agents whom it em- - ploys, since that would involve it, in all its operations, •in endless embarrassments and difficulties and losses, which Avould be subversive of the public interests, and, indeed, laches are never imputable to the government.” ■ — Story on Agency, § B19.
“For yet another reason, this must be true. Although the individuals who have the administration of public affairs may commit very gross outrages, it is not congruous with the ideas of order and duty that the state, the august sovereign body Avhose servants they are, from which proceed all civil laws, and to which Ave owe unstinted respect and honor, should be held capable of doing wrongs, for which she should be made ansAverable as for tortious injuries, in her own courts to her own children or subjects.”
*610Tn the case of Dargan v. Mobile, 31 Ala. 469, 70 Am. Dec. 505, the clisinction I am now trying to make was well made, as follows: “The question of this case is whether a municipal or public corporation is liable in damages for an injury resulting from the careless or negligent official conduct of one of its officers, in whose selection there was no negligence, and whose employment was the lawful and necessary means of executing a governmental power vested in it for the public benefit, and whose acts are not done under the supervision of the corporation. This question we decide in the negative. Because the corporation is, as to the passage of the ordinances and the appointment of the officer described in the pleadings, a government, exercising political power, it is irresponsible for the official misconduct alleged, upon the same principle which generally protects governments and public officers from liability for the misfeasances and malfeasances of per-' sons necessarily employed under them in the public service. — Story on Agency, §§ 319, 319a, 319b, 320, 321; Dunlap’s Paley’s Agency, 376. Municipal corporations, quoad hoc, stand upon the same foundation with public officers, counties, townships, and other quasi corporations, charged with some public duty, or invested with some portion of the authority of the government, where the employment of officers is necessary and lawful.”
The law is. thus stated by that almost omniscient law-writer, Judge Story: “The rule, which we have been considering, that where persons are acting as public agents they are responsible only for their own misfeasances and negligence, and (as we have seen) not for the misfeasances and negligences of those who are employed under them, if they have employed persons of suitable skill and ability, and have not co-operated in or authorized the wrong, is not confined to public offi- ■ *611cers, or agents of the government, properly so called, in a strict legal sense; but it equally applies to other public officers or agents, engaged in the public service, or acting for public objects, whether their appointments emanate from particular public bodies, or are derived from general laws, and whether those objects are of a local or of a general nature. For, if the doctrine of respondeat superior were applied to such agencies, it would operate as a serious discouragement to persons who perform public functions, many of which are rendered gratuitously, and all of which are highly important to the public interest. In this respect, their case is distinguishable from that of persons acting for their own benefit, or employing others for their own benefit. But the party who suffers the injury under such circumstances is not without redress, for he may maintain a suit against the immediate wrongdoer. Upon this ground it has been held that the trustees of a public turnpike are not liable for the misfeasances or negligences of subagents employed by them in the performance of their duty, unless they have directed the act to be done, or have personally co-operated in the negligence.” — Agency, § 321, pp. 394-397.
. I think these authorities conclusively show that purely charitable corporations, as to the question under consideration, are in the same category as municipalities, counties, states, etc. If so, then the White Case, 138 Ala. 479, 35 South. 454; Leavell v. Western Kentucky Asylum for the Insane, 122 Ky. 213, 91 S. W. 671, 28 Ky. Law Rep. 1129, 4 L. R. A. (N. S,) 269, 12 Ann. Cas. 827, is decisive of this question, because it was there decided that the doctrine of respondeat superior did not apply to that defendant. And, if not to that hospital, then it does not apply to this one. Both were created by the same sovereign, and author*612ized to do only works of charity, which would otherwise be done by the sovereign. The mere fact that the state makes annual appropriations to the one, and not to the other, can make no difference. Each is an arm or agency of the state, created and authorized only to do public charity.
The intimation, in the White Case, that the property of the insane hospital is the property of the state, is erroneous; it is no more the property of the state than is the property of the defendant corporation in this case. The state could not — if it would — take from the insane hospital the property to which it has a vested title, nor divert it from the purposes for which it was granted. A grant of property, once made absolute by the state to a public or private corporation, cannot be recalled. Vested rights, even of purely municipal corporations, are within the protection of the federal Constitution. The insane hospital is therefore no more an arm or agency of the state than are various other hospitals, such as that for the deaf, dumb, and blind, or those created by acts similar to the one which created the corporation in question.
If, however, the state should create a private corporation and authorize it to do hospital work, or to care for the insane, for profit, then of course it would not be a charitable institution or corporation, and would not fall Avithin the rule under consideration. If a charitable corporation should be authorized to do other things than charity, for a profit, then quoad hoc it Avould not be a charitable institution, and would be liable as are other private business corporations. The same is true of municipal corporations, or of even the state or the United States; but the property of' no one of these, Avhich is devoted exclusively to governmental public, *613or purely charitable, purposes, can be subjected to the payment of the liability.
This is true even of railroad corporations: Their depots, tracks, or other property necessary for the corporation in its service of the public, as authorized by its charter, cannot be subjected to the payment of judgments against the corporation. In other words, property devoted to a public use, whether for governmental, charitable, or other purposes, is not subject to execution or other legal process. The right of the individual to such property is secondary to the right of the public. This has been decided in this state too often, as to charitable institutions, municipal corporations, railroads, and other quasi public corporations, to need any citation of authorities.
Apply this undoubted doctrine to the case in hand, and what is the result? If the plaintiff shall succeed in recovering a judgment, if the pleas in this case are true, defendant has no property, and cannot acquire any property which can be subjected to execution, sale, or other legal process. Even the English cases uphold this doctrine, those that hold the charity liable in certain cases. All the authorities in the world, so- far as I can find, hold that property devoted to a public use cannot be sold under execution or other legal process, except the Rhode Island case, and this decision was so abhorrent to the people of Rhode Island that the very first legislature which assembled after its rendition overruled it by an express statute.
Municipalities, counties, and states can be compelled by mandamus to levy and collect taxes with which to pay such judgments; but charitable corporations have no such powers or rights — -there is no feasible means of obtaining satisfaction of judgments against them. For this reason the “trust fund doctrine” is strictly ap*614plicable, not on the ground that no liability can be fixed or fastened upon such' corporations, but that, if so fixed or fastened, the judgment could not be satisfied, and obtaining it would be useless. And the law never requires, or even allows, the doing of a wholly useless thing. This will clearly appear from an examination of Fordyce’s Case, 79 Ark. 559, 96 S. W. 155, 7 L. R. A. (N. S.) 485. There, by negligence or fraud, the plaintiff had obtained a judgment against a public library, and sought by execution to enforce a-sale of its property. The court enjoined the sale. The opinion was written by Judge Rose, one of the greatest lawyers America has produced, and is therefore one of the best considered cases in the world on the subject.
The following authorities are conclusive on this question: “A valid vested estate in trust (for charitable purposes) can never lapse or become forfeited by any misconduct in the trustee, or inability in the corporation to execute it, if such existed. Charity never fails; and it is the right as well as the duty of the sovereign, by its courts and public officers, as also by the Legislature (if needed), to have the charities properly administered.”' — Girard v. Philadelphia, 7 Wall. 15, 19 L. Ed. 57.
“If a defendant permits a judgment to go against hi7u which he might have successfully defended, he may still claim his homestead and other exemptions. Though a judgment is rendered against a railway company, yet its franchise or other property necesssary to the operation of its road cannot be sold under execution, because that would interfere with the public good. — East Alabama R. Co. v. Doe, 114 U. S. 340, 5 Sup. Ct. 869, 29 L. Ed. 136; 1 Freeman, Executions, § 179. The fact that a city or county is by statute liable to be sued does not necessarily imply that its property may be taken *615in execution. This has been repeatedly decided. — Highway Com'rs v. Martin, 4 Mich. 557, 69 Am. Dec. 333; Waltham v. Kemper, 55 Ill. 346, 8 Am. Rep. 652; White v. Bond County, 58 Ill. 297, 11 Am. Rep. 65; Bussell v. Steuben, 57 Ill. 35; Hill v. Boston, 122 Mass. 352, 23 Am. Rep. 332. The judgment is conclusive of the amount of the debt or demand, but it does not conclude the question as to the liability of any property to seizure under it. That is a question that may never arise.” — Fordyce v. Woman’s, etc., Ass’n, supra.
“In every city of any considerable size may be found .one or more hospitals organized and maintained by the city for charitable purposes and one or more hospitals maintained by private benevolence, under the control of trustees appointed or elected as the donors may direct or the statute may require. But a devise to a city for charitable purposes is valid. — McDonough v. Murdoch, 15 How. 367, 14 L. Ed. 732; Perin v. Carey, 24 How. 65, 16 L. Ed. 701. Let us suppose then that a city had two hospitals, one created and supported out of the municipal revenues and another dependant upon a charitable gift and the donations of private individuals, both under the control of the city as a trustee. According to the doctrine contended for in behalf of the appellants, the former could not be sold under execution because it belonged to the city, and the latter could thus be sold because the city was only a trustee ; and this, notwithstanding both were charities -instituted Tor the public good.’ Such a distinction cannot be supported except by ignoring the general public interests common to both of these cases. The question is not as to who holds the property in trust, which is merely a personal consideration, a matter of policy and expediency; but it relates to the objects for which all charitable issues are created, and on account of *616which they are highly favored by law. A discrimination' based, not on the character of the trust, but on the character of the trustee, would be false and misleading. The property of a public corporation, such as a railroad or bridge company, essential to the exercise of its corporate franchise and the performance of its duties toward the public, cannot, without statutory authority, be'sold'-' to satisfy a common-law judgment, either on execution,- or in the pursuance of an order or decree of court.” — Fordyce v. Woman’s, etc., Ass’n, supra.
The opinion in this case seems to make a distinction between a pay patient in a charitable institution, and one who does not pay. The authorities all hold that there is no difference as to the liability of purely charitable institutions for the torts of their agents, as to pay, and nonpay, patients. This is well and truly stated, in a note to the report of the case of Horden v. Salvation Army, 139 Am. St. Rep. 899, as follows; “The authorities seem to agree that an institution, otherwise charitable in its nature, does not lose its character as such and its consequent exemption from responsibility for the torts and negligence of its servants and agents, from the fact that persons, availing themselves of its benefits, at least such as are pecuniarily able to do so, contribute money to pay the expenses of the institution ; their contributions going to the charity itself and not being a source of private gain to the founders or managers. This has been held true in the case of hospitals and institutions of learning, as will hereafter be seen. It has been decided that an institution does not lose its charitable character so as to be liable for the death of a child through the negligence of an experienced employee, merely because the mother of the child contributed to the expense of its care at the in*617stitution. — Cunningham v. Sheltering Arms, 135 App. Div. 178, 119 N. Y. Supp. 1033.”
Most all the cases are reviewed or cited in the opinion and notes to this case.
Of course, if a hospital or an educational institution-, is operated for private gain and profit, then.it is not' a charitable institution, and the doctrine or rule being: considered does not apply. The very definition of “charitable trust” or “charitable institution” is that it is-for the use and benefit of the public, and not for that' of particular individuals. A “charity” is a gift to be-applied for the benefit of an indefinite number of persons, thereby relieving the government pro tanto of the* discharge of its duties as to educating the minds, training the hands, improving the morals, and relieving the-pains and suffering, of such indefinite number. If it be not a gift, or if it be a gift to a definite number, then it is not a charity, but is a private business, and is in the same category as other private business corporations. To be a charitable trust there must be a gift by the sovereign or by individuals, and it must be- for a public purpose, either local or general. The gift- must extend to the poor as well as to the rich. Charitable uses or trusts may extend to almost anything which tends to promote the well-doing or the well-being of the genus homo. It must, however, be to an indefinite number, and be for a, purpose which the government or sovereign ought otherwise to do, in order that it be protected from spoliation or diversion, as other property is protected which is devoted to a public use, such as city halls, courthouses, state capitols, universities, public hospitals, etc.