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“ The law on this subject was more distinctly brought out and considered by this court in the late case of McCloud v. Selby,' in which this well-known practice, as it had been applied to towns and ecclesiastical societies, was extended and sanctioned as to school districts; else it would be breaking in upon the analogies of the law.' • They are communities for different purposes, but essentially of the same character.' And no doubt can remain, since the decision of this case, but that the real principle, in all of the cases on this subject, has been, and is, that the inhabitants of quasi corporations are parties individually, as well as in their corporate capacities, to all the actions in which the corporation is a party. And to the same effect is the language of the elementary writers." 2
So far as this rule rests upon the reason that these organizations have no common fund, and that no other mode exists by which demands against them can be enforced, it cannot be considered applicable in those States where express provision is made by law for compulsory taxation to satisfy any judgment recovered against the corporate body, — the duty of levying the tax being imposed upon some officer, who may be compelled by mandamus to perform it. Nor has any usage, so far as we are aware, grown
up in any of the newer States, like that wbich had so [* 247] early an origin in New England. * More just, conven
ient, and inexpensive modes of enforcing such demands have been established by statute, and the rules concerning them are conformed more closely to those which are established for other corporations.
On the other hand, it is settled that these corporations are not liable to a private action, at the suit of a party injured by a neglect of its officers to perform a corporate duty, unless such action is given by statute. This doctrine has been frequently applied where suits have been brought against towns, or the highway officers of towns, to recover for damages sustained in consequence of defects in the public ways. The common law gives no such 1 10 Conn. 390–395.
extend the same principle to incorBeardsley v. Smith, 16 Conn. porated cities; and an act of the leg. 375, citing 2 Kent, 221; Angell & islature permitting the enforcement Ames on Corp. 374; 1 Swift's Dig. of city debts in the same mode was 72, 794; 5 Dane's Abr. 158. And sustained. For a more recent case see Dillon, Mun. Corp. c. 1. It was in Massachusetts than these cited, see held competent in the above case to Gaskill v. Dudley, 6 Met. 551.
action, and it is therefore not sustainable at all, unless given by statute. A distinction is made between those corporations which are created as exceptions, and receive special grants of power for the peculiar convenience and benefit of the corporators, on the one hand, and the incorporated inhabitants of a district, who are by statute invested with particular powers, without their consent, on the other. In the latter case, the State may impose corporate duties, and compel their performance, under penalties ; but the corporators, who are made such whether they will or no, cannot be considered in the light of persons who have voluntarily, and for a consideration, assumed obligations, so as to owe a duty to every person interested in the performance.?
The reason which exempts these public bodies from liability to private actions, based upon neglect to perform public obligations, does not apply to villages, boroughs, and cities, which accept special * charters from the State. The [* 248] grant of the corporate franchise, in these cases, is usually
* This rule, however, has no ap- Kemper, 55 Ill. 346; Sutton v. Board, plication to the case of neglect to 41 Miss. 236; Cooley v. Freeholders, perform those obligations which are 27 N. J. 415; Bigelow v. Randolph, incurred by the political subdivisions 14 Gray, 541; Symonds v. Clay Co., of the State when special duties are 71 Ill. 355; People v. Young, 72 Ill. imposed on them by law. Hannon 411. These cases follow the leading 3. St. Louis Co. Court, 62 Mo. 313. English case of Russell v. Men of
? Mower v. Leicester, 9 Mass. 250; Devon, 2 T. R. 667. In the very Bartlett v. Crozier, 17 Johns. 439; carefully considered case of Eastman Farnum o. Concord, 2 N. H. 392; v. Meredith, 36 N. H. 284, it was Adams v. Wiscasset Bank, 1 Me. 361; decided, on the principle above stated, Baxter v. Winooski Turnpike, 22 Vt. that if a building erected by a town 123; Beardsley v. Smith, 16 Conn. for a town-house is so imperfectly 375; Chidsey v. Canton, 17 Conn. 475; constructed that the flooring gives Young 0. Commissioners, &c., 2 N. way at the annual town-meeting, and & McC. 537; Commissioners of High- an inhabitant and legal voter, in attendways v. Martin, 4 Mich. 557 ; Morey ance on the meeting, receives thereby 8. Newfane, 8 Barb. 645; Lorillard a bodily injury, he cannot maintain t. Monroe, 11 N. Y. 392; Galen o. an action against the town to recover Clyde and Rose Plank Road Co., 27 damages for this injury. The case Barb. 543; Reardon v. St. Louis, 36 is carefully distinguished from those Mo. 555; Sherburne v. Yuba Co., 21 where corporations have been held Cal. 113; State v. County of Hudson, liable for the negligent use of their 30 N. J. 137; Hedges v. Madison own property by means of which Co., 1 Gilm. 567; Granger v. Pulaski others are injured. The familiar Co., 26 Ark. 37; Weightman o. Wash- maxim that one shall so use his own ington, 1 Black, 39; Ball v. Win- as not to injure that which belongs to chester, 32 N. H. 443; Eastman v. another is of general application. Meredith, 36 N. H. 284; Waltham v.
made only at the request of the citizens to be incorporated, and it is justly assumed that it confers what to them is a valuable privilege. This privilege is a consideration for the duties which the charter imposes. Larger powers of self-government are given than are confided to towns or counties ; larger privileges in the acquisition and control of corporate property; and special authority is conferred to make use of the public highways for the special and peculiar convenience of the citizens of the municipality in various modes not permissible elsewhere. The grant by the State to the municipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise, on the part of the corporation, to perform the corporate duties, and as imposing the duty of performance, not for the benefit of the State merely, but for the benefit of every individual interested in its performance.
1 Selden, J., in Weet v. Brockport, Wetumpka, 24 Ala. 112; Detroit r. 16 N. Y. 161, note. See also Mayor Corey, 9 Mich. 165; Rusch v. Daven. of Lyme v. Turner, Cowp. 86; Hen- port, 6 lowa, 443; Commissioners r. ley v. Lyme Regis, 5 Bing. 91; Same Duckett, 20 Md. 468; Covington e. case in error, 3 B. & Adol. 77, and 1 Bryant, 7 Bush, 248; Weightman Bing. N. C. 222; Mayor, &c. of New v. Washington, 1 Black, 41; Chicago York v. Furze, 3 Hill, 612; Rochester v. Robbins, 2 Black, 418; Nebraska e. White Lead Co. v. Rochester, 3 N. Y. Campbell, 2 Black, 590. In the recent 464; Hutson v. Mayor, &c. of New case of Detroit v. Blackeby, 21 Mich. York, 9 N, Y. 163; Conrad v. Ithaca, 84, this whole subject is considered 16 N. Y. 158; Mills v. Brooklyn, 32 at length; and the court (one judge N. Y. 489; Barton v. Syracuse, 36 dissenting) deny the soundness of the N. Y. 54; Lee v. Sandy Hill, 40 N. principle stated in the text, and hold Y. 412; Clark v. Washington, 12 that municipal corporations existing Wheat. 40; Riddle v. Proprietors of under special charters are not liable Locks, &c., 7 Mass. 183; Bigelow v. to individuals for injuries caused by Inhabitants of Randolph, 14 Gray, neglect to perform corporate duties, 541; Mears v. Commissioners of Wil- unless expressly made so by statute. mington, 9 Ired. 73; Browning v. This case is referred to and dissented Springfield, 17 Ill. 143; Blooinington from in Waltham v. Kemper, 56 III. v. Bay, 42 ni. 503; Springfield v. 347. In Murtaugh o. St. Louis, 44 LeClaire, 49 III. 476; Peru v. French, Mo. 480, Currier, J., says: “ The 55 Ill. 318; Pittsburg v. Grier, 22 general result of the adjudications Penn. St. 54; Jones v. New Haven, seems to be this: When the officer 34 Conn. 1; Stackhouse v. Lafayette, or servant of a municipal corporation 26 Ind. 17 ; Brinkmeyer v. Evans- is in the exercise of a power conferred ville, 29 Ind. 187; Sawyer v. Corse, upon the corporation for its private 17 Grat. 241; Richmond o. Long, 17 benefit, and injury ensues from the Grat. 375; Blake v. St. Louis, 40 Mo. negligence or misfeasance of such 569; Scott v. Mayor, &c. of Manches- officer or servant, the corporation is ter, 37 Eng. L. & Eq. 495; Smoot v. liable, as in the case of private corpo
In this respect these corporations are looked upon as occupying the same position as private corporations, which, having accepted a valuable franchise, on condition of the performance of certain public duties, are held by the acceptance to contract for the performance of those duties. In the case of public corporations, however, the liability is contingent on the law affording the means of performing the duty, which, in some cases, by reason of restrictions upon the power of taxation, they might not possess. But assuming the corporation to be clothed with sufficient power by the charter to that end, the liability of a city or village, vested with control of its streets, for any neglect to keep them in repair, or for any improper construction, has been determined
i many cases. And a similar liability would exist in other cases where the same reasons would be applicable.
* But if the ground of the action is the omission by [* 249] rations or parties; but when the acts preceding note. The cases of Weet or omissions complained of were done v. Brockport, and Hickok v. Plattsor omitted in the exercise of a corpo- burg, were criticised by Mr. Justice rate franchise conferred upon the cor- Marvin, in the case of Peck v. Batavia, poration for the public good, and not 32 Barb. 634, where, as well as in for the private corporate advantage, Cole v. Medina, 27 Barb. 218, he held then the corporation is not liable for that a village merely authorized to the consequences of such acts or omis- make and repair sidewalks, but not sions.” Citing Bailey v. New York, 3 in terms absolutely and imperatively Hill
, 531; Martin v. Brooklyn, 1 Hill, required to do so, had a discretion 350; Richmond v. Long's Adm'r, 17 conferred upon it in respect to such Grat. 375; Sherburne v. Yuba Co., 21 walks, and was not responsible for a Cal. 113; Dargan v. Mobile, 31 Ala. refusal to enact ordinances or by-laws 469; Stewart o. New Orleans, 9 La. in relation thereto; nor, if it enacted Aun. 461; Prother v. Lexington, 13 such ordinances or by-laws was it liaB. Monr. 559. And as to exemption ble for damages arising from a neglect from liability in the exercise or failure to enforce them. The doctrine that to exercise legislative authority, see a power thus conferred is discretiontale, p. *208 and note. As to who ary does not seem consistent with the are to be regarded as municipal officers, ruling in some of the other cases cited, ste Maximilian v. New York, 62 N. Y. and is criticised in Hyatt v. Rondout,, 160; 8. c. 20 Am. Rep. 468, and cases
44 Barb. 392. But see ante, p. *208
and note. Calling public meetings for ? Weet v. Brockport, 16 N. Y. 161, political or philanthropic purposes is
Hickok v. Plattsburg, 16 N. Y. no part of the business of a municipal 158 ; Morey v. Newfane, 8 Barb. 645; corporation, and it is not liable to one Browning 0. Springfield, 17 m. 143; who, in lawfully passing by where the Hyatt r. Rondout, 44 Barb. 385; meeting is held, is injured by the disLloyd v. Mayor, &c. of New York, 5 charge of a cannon fired by persons N. Y. 369; Rusch v. Davenport, 6 concerned in the meeting. Boyland lowa, 433. And see Dillon, Mun. r. Mayor, &c. of New York, 1 Sandf. Corp. c. 18, and the cases cited in the 27.
the corporation to repair a defect, it would seem that notice of the defect should be brought home to the corporation, or to officers charged with some duty respecting the streets, or that facts should appear sufficient to show that, by proper vigilance, it must have been known. On the other hand, if the injury has happened in consequence of defective construction, notice is not essential, as the facts must be supposed to have been known from the first.2
In regard to all those powers which are conferred upon the corporation, not for the benefit of the general public, but of the corporators, --such as the power to construct works to supply a city with water, or gas-works, or sewers, and the like, — the corporation is held to a still more strict liability, and is made to respond in damages to the parties injured by the negligent manner in which the work is constructed, or guarded, even though, under its charter, the agents for the construction are not chosen or controlled by the corporation, and even where the work is required by law to be let to the lowest responsible bidder.
In Bailey v. Mayor, &c. of New York, an action was brought against the city by one who had been injured in his property by the careless construction of the Croton dam for the purpose of supplying the city with water. The work was constructed under the control of water commissioners, in whose appointment the city had no voice; and upon this ground, among others, and also on the ground that the city officers were acting in a public
capacity, and, like other public agents, not responsible [ * 250) for the misconduct of * those necessarily appointed by
them, it was insisted the city could not be held liable. Nelson, Ch. J., examining the position that, “ admitting the water commissioners to be the appointed agents of the defendants, still the latter are not liable, inasmuch as they were acting solely for the State in prosecuting the work in question, and therefore are not responsible for the conduct of those necessarily employed by
1 Hart v. Brooklyn, 36 Barb. 226; Y. 639; Springfield o. Doyle, 76 IL. Dewey v. City of Detroit, 15 Mich. 202; Rosenburg 0. Des Moines, 41 309; Garrison v. New York, 5 Bosw. lowa, 415. 497; McGinity v. Mayor, &c. of New 2 Alexander v. Mt. Sterling, 71 York, 5 Duer, 674; Decatur v. Fisher, Ill. 366. 53 III. 407; Chicago v. McCarthy, 75 3 3 Hill, 531; s. c. in error, : IIl. 602; Requa v. Rochester, 45 N. Denio, 433. Y. 129; Hume v. New York, 47 N.