exhaustive argument in its support, that negligence cannot be imputed to a state, so as to make it chargeable, are eminently correct, but the trouble is in the application. The law is well settled that when the state agency merely performs the governmental functions of the state, and acquires no individual corporate existence, to hold it responsible for negligence would be the same as holding the state responsible. The unincorporated agencies occupy the same positions as the state and are protected to the same extent; but, when any state agency becomes a municipal corporation, it thereby acquires an identity distinct from the state, and is made liable for its own negligence. See Laramie County v. Albany County, 92 U. S. 307. The rights and privileges of municipal corporations are only those conferred by the legislature, and in the exercise of those rights and privileges, rights of individuals must be respected, or the corporation will be held responsible for the infraction.

The distinction between preliminary questions, the expediency of the improvement, the extent to which it shall be prosecuted and the plans adopted, for which the corporation is not responsible, and the construction of the work, after it is entered upon, appears to be well defined. In the latter, for any negligence, responsibility attaches.

In McClure v. City of Red Wing, 28 Minn. 186, it was ably said: "That in adopting the general plan of an improvement, a municipality performs a legislative duty, whereas the manner of executing it is a ministerial one." In many cases it has been held that a corporation was liable for the injury. inflicted upon individuals, whether it arose from the adoption of a faulty plan or negligence in construction, but that is a question that need not be here determined. No charge is made in complaints that the plan was faulty. The inju ries were alleged to have been caused solely by negligence. of construction under the plans adopted, and when such is the fact, all authorities concur in holding the corporation liable. The law appears to be well settled that when a corporation has adopted a plan and enters upon the construction

of a public work, the work is then ministerial. The plan must be followed in detail, and any departure or negligence, causing damage to an individual, furnishes a cause of action. Jones on Neg. of Mun. Corporations, secs. 140 to 148; Dillon on Mun. Corporations, sec. 1042, et seq.

At sec. 1048 it is said: "It is agreed that whenever the duty as respects drains and sewers ceases to be legislative or judicial or quasi judicial, and becomes ministerial, then, although there be no statute giving the action, a municipal corporation is liable to the same extent and on the same prin eiples as a private person or corporation would be under like circumstances for the negligent discharge or the negligent omission to discharge such duty, resulting in an injury to others." And a very long array of authorities are cited in support. See Johnston v. District of Columbia, 118 U. S. 19; McClure v. City of Red Wing, supra; Benford v. Grand Rapids, 53 Mich. 98; Evansville v. Decker, 84 Ind. 325; City of Indianapolis v. Lawyer, 38 Ind. 348; Child v. City of Boston, 4 Allen, 41; Mills v. City of Brooklyn, 32 N. Y. 489; Ashley v. City of Port Huron, 35 Mich. 296; Weis v. City of Madison, 75 Ind. 241; Gilluly v. City of Madison, 63 Wis. 518; Frostburg v. Duffy, 70 Md. 47; Frostburg v. Hutchins, 70 Md. 56; Hans v. Bethlehem, 134 Pa. St. 12; Stanchfield v. The City of Newton, 142 Mass. 110.

These are but a few of the many cases that might be cited to establish the proposition that a municipal corporation will be held liable for damage to individual property caused by negligence in the construction of public improvements.

The allegations of the complaints, in substance, are as follows:

First: That the defendant undertook to construct on each side of the river a levee or dyke from the bridge of The Atchison, Topeka & Santa Fe Railroad Company down to the bridge of The Denver & Rio Grande Railway Company, some eight feet high, to connect at the ends with the embankments of the respective railroads.

Second: That the one upon the north side was completed

according to the plan, and that upon the south side was constructed from the Denver & Rio Grande bridge up the stream to within one hundred and fifty feet of the bridge of the Atchison, Topeka & Santa Fe Railroad, when the work was stopped, leaving the gap of one hundred and fifty feet. at the upper end of the dyke or levee.

Third: That in August, 1889, the stream was swollen by rain and a large volume of water came down, and that by reason of the narrowing and restricting the channel below by the construction of the embankments, the water was obstructed, forced through the space where the levee had not been constructed, flooding the property of plaintiffs, and inflicting great injury by the destruction of goods.

Fourth: That the building occupied by plaintiffs was constructed in 1880, and had never, in the highest floods, before the construction of the levee, been overflowed or troubled by high water.

Fifth That the work had been stopped or abandoned in that unfinished condition a year or more before the injury occurred.

In my view of the law as stated above, I think the complaint stated substantial and valid causes of action, that the issues tendered should have been met, the questions of fact determined by a jury, and that the court erred in sustaining the demurrer.

The judgment will be reversed.

Reversed.

STEWART ET AL. v. CITY OF PUEBLO.

MUNICIPAL CORPORATIONS.

The doctrines announced in McCord et al. v. The City of Pueblo, ante, p. 48, are reaffirmed in this case.

Error to the District Court of Pueblo County.

Mr. C. E. GAST and Messrs. ARRINGTON & MCALINEY, for plaintiffs in error.

Mr. A. M. NICHOLAS and Messrs. WALDRON & DEVINE, for defendant in error.

PER CURIAM. The questions involved in this case being substantially the same as those in McCord et al. v. The City of Pueblo, the two cases were argued and submitted together. The judgment in this must be the same as in the former. The judgment of the district court will be reversed and the cause remanded.

Reversed.

CARICO V. THE FIDELITY INVESTMENT COMPANY.

1. BAILEE-NEGLIGENCE.

To exonerate the defendant in an action by a corporation against him as an officer for a failure to account for money received by him, when his defense is that it was stolen, it must be shown that the funds of the company were kept separate and distinct from his own and that the loss did not occur through his negligence and failure to pay it over, or through his negligence in the manner of keeping it.

2. SAME.

In cases of gratuitous bailment the degree of care required of a bailee is that which a prudent man would give to his own property. To show that he gave it the same care he did his own is not sufficient, if the testimony shows gross negligence in his own affairs.

3. SAME-CONVERSION.

The acts of a bailee in changing, mixing and confusing trust money with his own may amount to a conversion thereof and constitute him a debtor to the extent of the funds converted.

Appeal from the District Court of Arapahoe County.

Mr. W. T. ROGERS, for appellant.

Mr. CHARLES M. BICE, for appellee.

REED, J., delivered the opinion of the court.

Appellant was secretary to appellee, and as such officer it was his duty to collect, receipt for the money due the company, and pay it over to the treasurer. It is alleged in the

complaint and admitted that from August to early in December, 1889, appellant received of the money of the company various sums, aggregating on the 8th day of December, $528.15, which he neglected or refused to pay over to the

treasurer.

The special defenses interposed were: First: "That in the performance of his duties as secretary, it sometimes became necessary for him to hold the money of the plaintiff for a time before paying it to the treasurer. That he keep it in his private safe until such time as he could pay it to the treasurer. That he gave the money the same care and attention as he did his own, etc.

Second: "That on the 8th of December the safe was broken open and the money of the company and some of his own was stolen.

Third: "That he received no compensation for his services." The case was tried to a jury and at the close of the testimony the court instructed the jury to find for the plaintiff the amount claimed, $528.15, and interest, $106.83, making $634.98.

This case was once before decided by this court. See Investment Co. v. Carico, 1 Colo. App. 292, when the testimony upon the trial was fully and carefully reviewed and the law of the case fully stated. The judgment was reversed, cause remanded and second trial had, which is the one under review.

A careful examination of the evidence shows it the same as that of the former trial, only varying from it in some unimportant particulars. The defenses were no better established than upon the former.

The following paragraph appears in the former decision, page 296: "To exonerate defendant it must be shown, first, that the funds of the company were kept separate and distinct from his own. Treating moneys received as his own, and his liability as that of a debtor for the amounts received, would be a conversion, and the loss his own; second, that the loss did not occur through his negligence and failure to pay the