FOURTH DEPARTMENT, JULY TERM, 1898.

App. Div.] relate mainly to municipal corporations and point out the dual relations of those corporations to the public and to private interests, and in so far as they touch upon the public duties of the corporations they are instructive upon the subject we are considering. These cases define two kinds of duties that are imposed upon a municipal corporation; one is that kind which arises from a grant of a special power, in the exercise of which the municipality is as a legal individual; the other is that kind which arises or is implied from the use of political rights under the general law in the exercise of which it is a sovereign. The former power is private and is used for private purposes; the latter is public and is used for public purposes; the former is not held by the municipality as one of the political divisions of the State; the latter is. Where the power is intrusted to the corporation as one of the political divisions of the State and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser nor for misuser by the public agents. Where the duties which are imposed upon the municipality are of the latter class, they are generally to be performed by officers who, though deriving their appointment from the corporation itself through the nomination of some of its executive agents by a power devolved thereon as a convenient mode of exercising the function of government, are yet the officers, and hence the servants, of the public at large, and they are not under the control of the municipality; they are not its agents or servants, but are public officers, agents and servants of the public at large, and the corporation is not responsible for their acts or omissions nor for the acts or omissions of their subordinates by them appointed. (Maxmilian v. The Mayor, supra, 164, 165; Eastman v. Meredith, 36 N. H. 284; Fisher v. Boston, 104 Mass. 87; Lloyd v. The Mayor, 5 N. Y. 374; Bailey v. The Mayor, etc., 3 Hill, 538, et seq.; Hughes v. The County of Monroe, 147 N. Y. 49; Markey v. The County of Queens, 154 id. 675; Donovan v. The Board of Education of City of N. Y., 85 id. 117, 122; Springfield Fire & M. Insurance Company v. Village of Keeseville, 148 id. 46; Woodhu'l v. The Mayor, etc., 76 Hun, 390; McKay v. City of Buffalo, 9 id. 401; affd., 74 N. Y. 619; O'Meara v. The Mayor, Aldermen & Commonalty of the City of New York, 1 Daly, 425 ;

FOURTH DEPARTMENT, JULY TERM, 1898.

[Vol. 33. New York & Brooklyn Saw Mill & L. Co. v. City of Brooklyn, 71 N. Y. 580; McDonald v. Massachusetts General Hospital, 120 Mass. 432; Hill v. Boston, 122 id. 344.)

Donovan v. The Board of Education (supra) was an action brought against the board by the city of New York to recover damages for injuries sustained by the plaintiff by falling into an excavation in the yard of premises occupied as a ward school. The plaintiff at the time of the accident was a scholar attending the school. The excavation into which the plaintiff fell communicated with the cellar of the school building and was provided with an ordinary grating, and the evidence tended to show that the opening had been negligently left uncovered at the time of the accident. The premises were in the special care and keeping of the school trustees of the ward where the building was located, who were authorized to appoint janitors for the building and to employ masons in connection with the work. The accident was due to the negligence of the janitor or of the masons. Under the law the board of education had appointed the ward trustees, and it was sought to hold the board responsible by reason of that fact and of its general superintendence of the affairs of the city schools. ANDREWS, J., said: "But this did not make them (the trustees) the servants or agents of the board which appointed them. Their general authority and their power to make repairs was not derived from the defendant, but from the law."

In addition to the cases cited, we refer to recent decisions in other States in which the corporation or municipality has been held not responsible for negligent or other acts causing injury to third

persons.

For negligently maintaining its lock-up in a defective condition. whereby a prisoner was injured. (Gullikson v. McDonald, 64 N. W. Rep. [Minn.] 812.)

For the acts of a police officer while performing his duty in making an arrest of one charged with the violation of an ordinance. (Vaughtman v. Town of Waterloo, 43 N. E. Rep. [Ind.] 476.)

Not liable in damages for the death of one convicted in a corporation court and sentenced to work upon the public streets, although his death was occasioned while the convict was engaged in such work, and resulted from negligence on the part of the foreman who

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had been placed by the municipal authorities in charge thereof, and from the failure of such foreman to provide the convict after his injury with proper medical attention and treatment. (Nisbet v. City of Atlanta, 25 S. E. Rep. [Ga.] 173.)

Not liable for damages caused by the enactment and enforcement of a valid ordinance, though the ordinance shows an abuse by the municipality of a discretionary power with which it is vested. (Rosenbaum v. City of Newbern, 24 S. E. Rep. [N. C.] 1.)

A city not liable for damages to a property owner because it failed to prevent the erection of a wooden building on an adjoining lot in violation of an ordinance. (Harman v. City of St. Louis, 38 S. W. Rep. [Mo. Sup.] 1102.)

A municipality is not liable, in the absence of a statutory provision, for damages sustained by the tort of its officers. (Parks v. City Council of Greenville, 21 S. E. Rep. [S. C.] 540.) ·

City not liable for unlawfully arresting and imprisoning a person and incarcerating him in a filthy and improperly built and kept calaboose, since the municipality can only act through its officers and agents, and is not responsible for their illegal acts in attempting to exercise police powers. (Blake v. City of Pontiac, 49 Ill. App. 543.)

The learned counsel for the plaintiff strenuously insists that allegations in the complaint charge the defendant itself with specific negligence in appointing an incompetent person as attendance officer, and in failing to make proper regulations to govern his conduct, and this is the serious point in the case. The trend of the decisions we have cited sustain the proposition that a body corporate of the character of this defendant, whose duties are of a public character only, is not liable for negligence which results from the execution of a statutory duty, unless the liability is expressly created by statute. This would seem to be the general rule. The exceptions to that rule generally arise in street and sewer cases, where the negligence is directly traceable to the act of the corporation, or the corporation has created a nuisance, as illustrated in Seifert v. The City of Brooklyn (101 N. Y. 136). The statute we have quoted provides that the defendant "may make rules and regulations for the performance" of the attendance officer's duties, thus leaving the matter discretionary with the board. But it is insisted that the word "may"

FOURTH DEPARTMENT, JULY TERM, 1898.

[Vol. 33. should in this regard be construed as "must," and that the duty of making the regulation was imperative, and that the courts have so held in cases where public duties were imposed. This rule does not prevail in a case where the statute itself distinguishes, as this does, between what is mandatory and what is discretionary. Thus it is provided that the school authorities "shall appoint and one or more attendance officers, and

remove

* * *

*

* *

shall fix their compensation, and may prescribe their duties not inconsistent with this act, and may make rules and regulations for the performance thereof." So far, therefore, as the allegation of negligence rests upon the failure to prescribe the duties and make rules and regulations is concerned, we may dismiss it from our consideration, and all that remains of this feature of the case is the allegation of negligence in appointing Murray, who was an unfit and incompetent person for the position. These are general allegations and conclusions. It does not appear from the complaint in what respect Murray was incompetent, further than that he was not possessed of such sound mind and memory as was reasonably requisite. This allegation is also vague and a conclusion, and it is doubtful whether these allegations are admitted by the demurrer.

In McDonald v. Massachusetts General Hospital (supra) a hospital patient sued the corporation for unskillful surgical treatment by a house pupil, a functionary similar to a surgical interne. There was no evidence of any want of care in selecting the house pupil, and the court held that, without such evidence, the action could not be maintained, and at the same time strongly intimated an opinion that it could not be maintained, even with such evidence, for the reason that the corporation could not be held to have agreed to do more than to furnish hospital accommodation, which the plaintiff had had, and also for the further reason that any judgment recovered against the corporation could only be satisfied out of the funds dedicated to the charity, which could not be lawfully used to pay it.

The difficulty of enforcing a collection of any judgment that might be recovered in this action, the members of the board of education not being personally liable in this action, exists here as well as in the Massachusetts case.

In Perry v. The House of Refuge (63 Md. 20) it was held (citing this Massachusetts case) that the House of Refuge, founded for

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the care, custody and reformation of convicts, vagrants and incorrigible youths, being a charitable organization, was not liable for damages for an assault by one of its officers on an inmate.

The difficulty with this branch of the plaintiff's contention is that the statute providing for the appointment of these attendance officers, and in defining their relations to the defendant, has failed to make the defendant responsible for any negligence which it may have committed in reference to the appointment and control of these officers.

In a later Massachusetts case (Hill v. Boston, supra), which was an action for an injury to a child while attending a public school which the city was bound by law to keep and maintain, the staircase was winding, and the railing thereof so low as to be dangerous, whereby the child fell over the railing and was hurt. It was charged that the city improperly constructed the schoolhouse, and had knowledge or notice of its dangerous condition. The duty to provide and maintain schoolhouses was imposed by general statutes upon all towns and cities. GRAY, Ch. J., in writing the opinion of the court, after an exhaustive review of the decisions of England and in various States of this Union, laid down the broad proposition that the plaintiff could not recover, and rested the decision upon the doctrine that no private action, unless authorized by express statute, could be maintained against the city for the neglect of a public duty imposed upon it by law for the benefit of the public and from the performance of which the corporation receives no profit or advantage.

This conclusion seems well supported by the authorities cited by the learned court and would seem to dispose of the plaintiff's contention with reference to the principal point urged upon this review. But another insuperable objection to the plaintiff's recovery in this action appears in another feature of the case. The complaint clearly shows that the deceased was not a truant; that he was not liable to arrest, and at the time of the arrest was in the presence of his father and was absent from school with his permission to the knowledge of the officer. His act was a bald, naked trespass; the pursuit of this child in the face of an approaching train at this dangerous point across the railroad track, against the express comAPP. DIV.-VOL. XXXIII.

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