purpose. A preliminary injunction was granted, but on final hearing this was dissolved, and a judgment entered for defendant, from which this appeal is prosecuted.

Both parties assert the ownership of the city, and therefore no question arises as to the power of the city to purchase the property in satisfaction of the liability of the tax collector and the sureties on his official bond.

The property is not of such character as to be exempt from forced sale as property owned and held only for public purposes, under the provisions of section 9 of article 12 of the constitution, or the express provision of any statute. If the property is exempt, it is because it must be held to stand in the same position as would the money collected by the tax collector on a tax levied to meet the interest and create a sinking fund with which to discharge the bonded indebtedness of the city at its maturity, the validity of which is not questioned. The city of Sherman is under incorporation under the general law, under which it had power to levy and cause to be collected the sum which the collector failed to pay over. That was required to be assessed and collected separately from the taxes assessed and collected for current municipal expenses: Rev. Stats., art. 437. When assessed and collected, this became a special fund, disbursable only for the purpose for which the fund was created, and any officer misappropriating such a fund is declared to be guilty of malfeasance in office, subject to removal, and thereafter incapacitated to hold any office in the municipality: Rev. Stats., art. 372.

The constitution provides that "counties, cities, and towns are authorized, in such mode as may now or may hereafter be provided by law, to levy, assess, and collect the taxes necessary to pay the interest and provide a sinking fund to satisfy any indebtedness heretofore legally made and undertaken; but all such taxes shall be assessed and collected separately from that levied, assessed, and collected for current expenses of municipal government, and shall, when levied, specify in the act of levying the purpose therefor, and such taxes may be paid in the coupons, bonds, or other indebtedness for the payment of which such tax may have been levied": Const., art. 11, sec. 6.

This makes a tax collected under it a special fund; and in view of the limitations placed by the constitution on municipal taxation, if such a fund, by the act of the municipal authorities or otherwise, could be diverted and used for some

other purposes, then constitutional restraints would become inoperative, and citizens subjected to taxation forbidden by the constitution. What cannot be done directly cannot be

done indirectly.

The statute makes the further provision, that "all taxes levied, assessed, and collected for the purpose of paying the interest and principal of bonds heretofore issued by cities or towns to aid in the construction of railroads and other works of internal improvement shall be applied solely to the objects for which they were levied, under the direction of the comptroller, as follows: 1. To the payment of assessing and collecting the same; 2. To the payment of the annual interest of such bonds, and not less than two per cent of the principal; and if there be any excess on hand after making the above payments for the current year, it shall be used in the purchase and cancellation of said bonds": Rev. Stats., art. 4778.

The taxes collected could not have been appropriated to satisfaction of appellee's claim had they been paid over by the collector; and for the protection of the tax-payers as well as creditors, It seems to us that the property in controversy should be deemed a part of the fund, the misappropriation of which made it necessary for the city to acquire title to it.

If a tax-payer had failed to pay the tax on account of which the money was collected, then, on sale of his property, if no bid was made, it would have been struck off to the city and a deed made to it, under which the city would have had power to convey the property to a purchaser from it: Rev. Stats., art. 449. The money received on such a sale would go to the fund on account of which the tax was levied, and we see no reason why the proceeds of the sale of the property in controversy should not belong to the fund on accourt of which the taxes never paid over by the collector were collected; and the fact that the municipal authorities may have misapplied the rents of the property cannot affect the question.

On the conceded facts, the injunction should have been perpetuated, and the judgment will be reversed, and here rendered for appellant, perpetuating the injunction, and for costs. It is so ordered.

EXECUTION-EXEMPTION OF PROPERTY OF MUNICIPAL CORPORATION. An execution cannot lawfully issue against the property of a municipal corporation, and when so ordered, that part of the judgment will be reversed: Flora v. Naney, 136 Ill. 45. Connty revenues in the hands of the treasurer are not subject to seizure on execution: Gilman v. Contra Costa Co., 8 Cal.

52; 68 Am. Dec. 290, and note 297. A house and lot owned by a city, for merly used by them as a fire-engine house, and still held for a like future use, is exempt from execution: Curry v. Mayor, 64 Ga. 290; 37 Am. Rep. 74. A public school house is exempt from execution: State v. Tiedeman, 69 Mo. 306; 33 Am. Rep. 498,

WHITFIELD V. CITY OF PARIS.

[84 TEXAS, 431.]

MUNICIPAL CORPORATIONS-POLICE POWER-LIABILITY FOR NEGLIGENT ACT OF OFFICER. - The enactment and enforcement of a city ordinance forbidding unmuzzled dogs to run at large is the valid exercise by a municipal corporation of its police power; and when it, by ordinance, directs and orders the killing of unmuzzled dogs found running at large upon its streets, and appoints or employs its policeman, and makes it his duty, and directs and orders him, to execute and carry out such or dinance and kill all such dogs, the city is not liable for the negligent and careless act of such policeman in executing such orders and duty, even though in so doing he inflicts painful and serious wounds upon a person lawfully upon the street.

MUNICIPAL CORPORATIONS — LIability for Negligent ACTS OF OFFICERS OR EMPLOYEES. A city while acting, not in the management of its private or corporate affairs, but in the interest of the public, and as the guardian of the health, peace, convenience, and welfare of the public, is not liable for the negligent acts of its officers or employees engaged in the execution of its ordinances.

Dudley and Moore, for the appellant.

TARLTON, J., Section B. This appeal is prosecuted from a judgment rendered by the district court of Lamar County, in favor of appellee. The appellant sued appellee to recover for personal injuries inflicted upon her by one Beatis, in shooting at an unmuzzled dog, in the attempted enforcement of an ordinance of the city of Paris forbidding dogs to run at large. The correctness of the action of the trial court in sustaining a general demurrer to the plaintiff's petition is the only question to be determined.

This petition, as stated by appellant, alleged the incorporation of the city under the general incorporation act of the state of Texas, being title 17 of the Revised Statutes, entitled "Cities and Towns"; that the city had power, by its charter, to appoint policemen, prescribe their duties and compensation, and discontinue and remove any such policeman at the pleasare of the city council; that the city also, by its charter, had the power to tax, regulate, or restrain and prohibit the running

at large of dogs, and to authorize their destruction when at large contrary to ordinance; that in July, 1888, the said city, by and through its city council, passed an ordinance prohibiting thereafter the running at large of dogs without being muzzled, within its corporate limits, between the 1st of July and the 20th of September of each year, and requiring and making it the duty of the city marshal and any policeman to kill any such dog when found so running at large; that said city, by and through the city council, employed and appointed one Thomas Beatis to kill dogs under said ordinance, agreeing to pay him a certain stipulated sum per month for his services, the said Beatis then being in the employ and subject to the orders of the city; that at the time and after the passage of said ordinance, the said city, acting by and through the city council, made it the duty of and ordered the said Beatis to go upon the public streets, alleys, and highways of the city, and kill all dogs found running at large without being muzzled; that about the 24th of August, 1888, while the said Beatis was in the employ and service of the city, and acting in the scope of his employment, and while executing and carrying out the express orders and commands of the city in killing. a dog running at large without a muzzle on one of the streets. of the city, he, the said Beatis, recklessly, negligently, and carelessly shot off, discharged, and fired a double-barrel shotgun, loaded with powder and shot (the shot being of the denomination commonly called large goose-shot), on and along one of the most public streets in the city, where people were and are constantly passing in the discharge of the duties of their various avocations; that the said Beatis, in so negligently, carelessly, and recklessly shooting on and along said public street, in carrying out the orders of the city, as aforesaid, inflicted upon plaintiff two painful and serious wounds. Then follow the allegations as to the plaintiff's injuries, suffering, and loss.

The enactment of the ordinance referred to in the petition was an exercise, by the city, of its police power. Its purpose was to secure the safety, health, and welfare of the public. Beatis, the man whose act was complained of, was not, therefore, a mere servant or employee, though the petition so denominates him. He occupied the attitude of a policeman engaged in the enforcement of an ordinance of the city. In such a case, the maxim respondeat superior does not apply. Where a city acts as the agent of the state, it becomes the

representative of sovereignty. It is not acting in the management of its private or corporate concerns, but in the interest of the public, and as the guardian of the health, peace, convenience, and welfare of the public. Under such circumstances, it is not liable for the acts of its officers or employees engaged in the execution of its ordinances: 2 Dillon on Municipal Corporations, sec. 975; Culver v. City of Streator, 130 Ill. 238, and the numerous authorities there cited; Harrison v. Columbus, 44 Tex. 418; Keller v. Corpus Christi, 50 Tex. 614; 32 Am. Rep. 613; Conway v. Beaumont, 61 Tex. 12; Galveston v. Posnainsky, 62 Tex. 130; 50 Am. Rep. 517; Corsicana v. White, 57 Tex. 382.

The judgment should be affirmed.

MUNICIPAL CORPORATIONS — LIABILITY FOR NEGLIGENT OR WRONGFUL ACTS OF OFFICERS, AGENTS, OR SERVANTS. For an exhaustive discussion of this subject, see elaborate note to Goddard v. Harpswell, 30 Am. St. Rep. 376. A municipal corporation is not liable for injuries resulting from the negligent driving of a hose-reel on its way to a fire, though the fire depart ment is under the management of the city, and the driver is in its employ: Alexander v. Vicksburg, 68 Miss. 564. As to the powers and functions of a municipal corporation of a governmental nature, it is not liable for damages caused by the wrongful acts or negligence of its officers or servants: Brown ▼. Guyandotte, 34 W. Va. 299; see also Bronson v. Washington, 57 Conn. 346.

SWEENEY V. GULF, COLORADO, AND SANTA FE RAILWAY COMPANY.

[84 TEXAS, 433.]

RAILROAD COMPANIES-SECTION-FOREMAN AS VICE-PRINCIPAL - A rail. way section-foreman, having power to control, employ, and discharge the men under him, occupies the position of vice-principal as to them, in so far as they are affected by his acts. He is the representative of the railway company in the performance of any act, service, or duty in the line of his employment, and no distinction can be drawn between the performance of those higher duties intrusted to him specially, and those of an ordinary character, which both he and the subordinate servants under him are in the habit of indiscriminately performing. MASTER AND SERVANT-LIABILITY OF MASTER FOR ACT OF VICE-PRINCIPAL.-When a subordinate employee is injured through the negligence of a vice-principal, the master is liable in the same manner as if he had been personally present and committed the negligent act himself. RAILROAD COMPANIES LIABILITY FOR NEGLIGENCE OF VICE-PRINCIPAL. — A railway section-foreman, having power to control, employ, and discharge the men under him, is a vice-principal, and not a fellow-servant