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sioners v. Duckett, 20 Md. 468. Where towns and counties are held liable to such actions, there is, of course, no reason why cities should be exempt; but the assertion of such a liability in counties or towns, when not declared by statute, is, as we have already seen, and as is distinctly admitted in Barnes v. District of Columbia, 91 U. S. 552, opposed to the well-settled law.

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In the two Virginia cases referred to, the test of the liability of a municipal corporation is stated in exact accordance with the decisions in England and in Massachusetts. In the first case, it was said that Where the authority, though for the accomplishment of objects of a public nature and for the benefit of the public, is one from the exercise of which the corporation derives a profit, or where the duty, though of a public nature and for the public benefit, may fairly be presumed to have been enjoined upon the corporation in consideration of privileges granted to and accepted by it, the exemption does not apply; and the reason is that, in such cases, the corporation is not acting merely as an agent of the public, and with a view solely to the public benefit, but that in the former it is pursuing its own interest and profit, and in the latter is executing a contract for which it has received a consideration.' Sawyer v. Corse, 17 Gratt. 230, 241. In the second case the duties for breach of which a municipal corporation was said to be liable to private action, were defined as those ministerial specified duties, which are assumed in consideration of the privileges conferred by their charter.' Richmond v. Long, 17 Gratt. 375, 379. And in both cases the judgment of the Court of Appeals was in favor of the original defendant. The decisions in North Carolina and Alabama appear to have proceeded upon the ground that the corporation had received a peculiar benefit in the special privileges and immunities granted to it. In Meares v. Commissioners of Wilmington, 9 Ind. 73, the action was not for an injury resulting from the plaintiff's use of a defective way or public building, but for causing the plaintiff's house to fall, by the unskillful and careless cutting down of the grade of a street, for which no compensation was provided by the statutes under which the work was done; and the opinion was based upon the fallacies that there was no difference in liability to action, between a municipal and a private corporation, and that the fact that the corporation was at the expense of making the work was the surest test by which to find out for whose benefit the work was done. In Smoot v. Mayor &c. of Metumpka, 24 Ala. 112, the action was for neglect of a duty to repair highways, imposed by special charter, in the same section which released the inhabitants from working on roads and highways out of the said city, and from patrol duty, except under authority of said city.' Three Ohio cases are referred to: Rhodes v. Cleveland, 10 Oh. 159; McCombs v. Akron, 15 id. 474; Western College v. Cleveland, 12 Oh. St. 375. In Rhodes v. Cleveland, the report shows nothing of the nature of the suit, except that it was an action on the case for cutting ditches and water courses in such a manner as to cause the water to overflow and wash away the plaintiff's land;' and the point decided was, that the plaintiff need not show that the corporation acted illegally or maliciously. In McCombs v. Akron, an action on the case was sustained for an injury to the plaintiff's property by the cutting down and grading of a street of a city strictly within the scope of its legal authority, and unattended by any circumstances of negligence or malice-a conclusion inconsistent with the decision of the Supreme Court of the United States, of this court and of the courts of about every other state where the question has arisen. Smith v. Washington, 20 How. 135; Callender v. Marsh, 1 Pick. 418; Dillon on Mun. Corp., sec. 783, note. In Western College v. Cleveland, the point decided was that a city,

whose charter made it its 'duty to regulate the police of the city, preserve the peace, prevent riots, disturbances and disorderly assemblies,' was not liable to an action for the destruction of property in a riot, or for the neglect of the police officers in not preserving the peace and preventing such destruction. In Illinois, as shown by the cases referred to, incorporated cities are held liable to actions for neglect of duties imposed by their charters to repair highways and bridges. Browning v. Springfield, 17 Ill. 143; Springfield v. Le Claire, 49 id. 476; although in earlier and later cases in that state, cited in the former part of this opinion, counties and towns have been held not to be liable under general laws for like neglect. In Pekin v. Newell, 26 Ill. 320, cited for the present plaintiff, the city assumed to act under a special statute in constructing and taking tolls upon the way, for a defect in which it was held liable; and the only defense made was that the city had constructed the way on a pile bridge, when the authority conferred by the statute was to make an embankment and plank road at that place. In the remaining case referred to in Illinois, the court sustained an action on the case against a city for negligence of the city council in failing to collect an assessment, laid by way of betterment upon estates benefited by the laying out of a street, to compensate the plaintiff and others for the damages sustained by them for such laying out. Clayburgh v. Chicago, 25 Ill. 530; of that decision, it is enough to say that it is wholly inconsistent with the system of judicial remedies in this commonwealth.

The cases in Wisconsin, referred to by Mr. Justice Hunt, arose under statutes similar to this and other New England states, expressly making all towns and cities liable to actions for damages for defects in highways. Cook v. Milwaukee, 24 Wis. 270; Ward v. Jefferson, id. 342.

In Alexander v. Milwaukee, 16 Wis. 247, cited in the plaintiff's brief, the action was for consequential damages for the proper construction of a public work; there had been no neglect of duty, and there was held to be no liability on the part of the city. The result of this review of the American cases may be summed up as follows: There is no case in which the neglect of a duty, imposed by general law upon all cities and towns alike, has been held to sustain an action by a person injured thereby against a city, where it would not against a town. The only decisions of the state courts, in which the mere grant by the legislature of a city charter, authorizing and requiring the city to perform certain duties, has been held sufficient to render the city liable to a private action for neglect in their performance, when a town would not be so liable, are in New York since 1850, and in Illinois. The cases in the Supreme Court of the United States, in which private actions have been sustained against a city for neglect of a duty imposed upon it by law, are of two classes: 1st. Those which arose under the peculiar terms of special charters, in the District of Columbia, as in Weightman v. Washington, and Barnes v. District of Columbia, or in a territory of the United States, as in Nebraska City v. Campbell.

2d. Those which, as in Mayor &c. of New York v. Sheffield, and Chicago City v. Robbins, arose in New York and Illinois, and in which the general liability of the city was not denied or even discussed, and apparently could not have been, consistently with the rule by which the Supreme Court of the United States, upon questions of the construction and effect of the constitution and statutes of a state, follows the latest decisions of the highest court of that state. In the absence of such binding decisions, we find it difficult to reconcile the view that the non-acceptance of a municipal charter is to be considered as conferring such a

QUASI-MUNICIPAL CORPORATIONS.

benefit upon the corporation as will render it liable to private action for neglect of the duties thereby imposed upon it, with the doctrine that the purpose of the creation of municipal corporations by the state is to exercise a part of its powers of government, a doctrine universally recognized, and which has nowhere been more strongly asserted than by the Supreme Court of the United States in the opinions delivered by Mr. Justice Hunt in United States v. Railroad Co. 17 Wall. 322, 329, and by Mr. Justice Clifford, in Larami v. Albany, 92 U. S. 307, 308."

(a). QUASI-MUNICIPAL CORPORATIONS.

The department of public instruction of New York city formerly a part of the city government, is charged with the performance of duties not local or corporate, but belonging to the administrative branch of the state government, and the defendant was not liable for the negligence of the department nor that of the employés of that department. Ham v. Mayor &c., 70 N. Y. 459, aff'g 5 J. & S. 458, and order setting aside verdict for pl'ff.

Citing 2 Dillon's Munic. Corporation, sec. 772.

So, as to Board of Health. Bryant v. St. Paul, 33 Minn. 289. Town is not liable for the act of its highway commissioner where he would not himself be personally. Riley v. East Chester, 18 App. Div. 94. Young v. McComb, 11 App. Div. 480.

County held not liable for malfeasance. People v. Westchester County, 57 App. Div. 135.

So, as to school district. McClure v. Clifton, 79 Mo. App. 80. Board of county commissioners were not liable for failure to take a bond of a contractor, where it could not exact indemnity for negligence therein. Schnurr v. Huntington County, 22 Ind. App. 188.

Nor a board of education, for neglect or misconduct. Rock Island &c. Co. v. Elliott, 59 Kan. 42.

School district held liable for failure to take a bond from public contractors. Hydraulic &c. Brick Co. v. School Dist., 79 Mo. App. 665. Board of education was liable for negligent excavation. Bolk v. Board of Education, 7 Oh. N. P. 164.

Failure of officers to take bond from public contractors did not charge the county. Rhea County v. Sneed, 105 Tenn. 581.

A draining district held not liable for negligence. Sels v. Greene, 81 Fed. Rep. 555.

A municipality is not liable for the neglect of a public duty imposed by statute, as in the execution of deeds of land sold for taxes by the reeve and treasurer, unless the statute fixes the responsibility upon it. McLellan v. Assiniboia, 5 Manitoba L. R. 265.

(b). MUNICIPAL CORPORATIONS NOT LIABLE FOR NEGLIGENCE IN EXERCISE OF PUBLIC FUNCTION.

Where, by act, a municipality is required to elect an officer to perform public duties laid, not upon it, but upon the officer, and in which it has no private interest, it is not liable for the negligence of such officer, or that of his subordinates. The rule was applied to the commissioners of public charities and correction, whose ambulance driver was negligent. Maxmilian v. Mayor &c, 62 N. Y. 160, aff'g 2 Hun, 263, and non

suit.

From opinion.-"This rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them if not competent, or sillful or well behaved, and to direct and control them while in his employ. Kelly v. The Mayor, 11 N. Y. 432. The rule has no application to a case in which this power does not exist. Blake v. Ferris, 5 N. Y. 48. It results from the rule being thus based, that there can be but one superior at the same time and in relation to the same transaction (Langher v. Pointer, 5 Barn. & Cres. 560); as the law does not recognize two principals who are unconnected and severally responsible. Hobbit v. L. & N. W. Railway, 4 Exch. 253; Pack v. The Mayor, 8 N. Y. 222. And yet there may be sub-agents, servants under a servant; and whether they be appointed by the master or principal directly, or immediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference. Quarnan v. Burnett, 4 Mees. & Wells. 499. That a municipal corporation, as is the defendant, may be placed by the facts of a certain case under the effect of this rule, and made answerable for the negligent use of its well adapted personal property by its servant or sub-servant, need not be denied. Lee v. Sandy Hill, 40 N. Y. 442; Clark v. Washington, 12 Wheat. 40; Scott v. The Mayor &c., 37 Law & Eq. 495. The difficulty is not here; it is in determining, in a particular case, whether the negligent employé is the servant of the municipality, for it is not every one who has in charge personal property owned by the municipality, and sets about some lawful act with it within the municipal bounds, that is its servant; nor even if his appointment comes intermediately or immediately from the municipality itself. If the act of the officer or the subordinate of the officer thus appointed, is done in the attempted performance of a duty laid by the law upon him and not upon the municipality, then the municipality is not liable for his negligence therein. Such is the general principle laid down in Martin v. The Mayor, 1 Hill 545, and reasserted in Lorillard v. The Town of Monroe, 11 N. Y. 392, and in other cases. See, also, Russell v. The Mayor, 2 Denio 461; Bank Comm. v. Mayor &c., 43 N. Y. 184-189. There are two kinds of duties which are imposed upon a municipal corporation: One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises or is implied from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is liable and is used for public purposes. Lloyd v. The Mayor, 5 N. Y. 374. The former is not held by the municipality as one of the political divisions of the state, the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure

MUNICIPAL CORPORATIONS NOT LIABLE FOR NEGLIGENCE.

to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it 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. Eastman v. Meredith, 36 N. H. 284. Where the duties which are imposed upon municipalities 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 a function of government, are yet the officers, and hence the servants, of the public at large. They have powers and perform duties for the benefit of all the citizens, and are not under the control of the municipality which has no benefit in its corporate capacity from the performance thereof. They are not then the agents or servants of the municipal corporation, but are public officers, agents or servants of the public at large, and the corporation is not responsible for their acts or omissions, nor for the acts or omissions of the subordinates by them appointed. Fisher v. Boston, 104 Mass. 87. And where a municipal corporation elects or appoints an officer, in obedience to an act of the legislature, to perform a public service in which the corporation has no private interest, and from which it derives no special benefit or advantage in its corporate capacity, such officer cannot be regarded as a servant or agent of the municipality for whose negligence or want of skill it can be held liable. It has appointed or elected him in pursuance of a duty laid upon it by law, for the general welfare of the inhabitants or of the community. Hafford v. New Bedford, 16 Gray 297. He is the person selected by it as the authority empowered by law to make selections; but when selected and its power exhausted he is not its agent, he is the agent of the public for whom and for whose purposes he was selected."

County not liable for negligent maintenance of machinery in state asylum for insane. Hughes v. Monroe County, 147 N. Y. 49; s. c., 39 L. R. A. 33.

No liability for maintenance by board of education, of school in defective condition, though title to school property was vested in mayor &c. of the city. Brown v. New York, 32 Misc. 571.

So, as to failure of a superintendent of streets to see that the grade of a street conformed to the official grade. Sievers v. San Francisco, 115 Cal. 648.

That the performance of the work is mandatory, is immaterial. Millwood v. Dekalb County, 106 Ga. 743.

So, where the city's only connection with the building was the performance of a public duty imposed upon it by the state. Kinnare v. Chicago, 171 Ill. 332; aff'g s. c., 70 Ill. App. 106.

So, as to county's maintenance of a public institution. Jasper County v. Allman, 142 Ind. 572; s. c., 39 L. R. A. 58.

New Orleans v. Kerr, 50 La. Ann. 413.

So, as to defects in an ordinary highway. Shrum v. Washington County, 13 Ind. App. 585.

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