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poses of business and residence”; sometimes on the ground that the city, being a "voluntary” corporation as distinguished from the "involuntary” county and township corporations, and having sought charter advantages, will be held to have agreed to respond for negligence towards travelers, though the “involuntary” corporations are exempt. The theory of the "New England group,” in holding that the city need not respond to travelers for the negligence of its highway and bridge officers in the absence of a statute expressly creating liability, is that all the highways and bridges are the state's; that the city, like the county, like the town (the township of the other group), is merely an agency of the state in performing the governmental service of caring for the public ways; that, though the city or county or town highway or bridge officers are servants of the city or county or town, the superior need not respond because the superior is an instrumentality of the state in this respect and no more liable to suit without leave than the state itself. This contrariety of view may have its roots in the differences between the Virginia “county" and the New England “town” governments in the old colonial days.
When a traveler asserts a city's liability for a negligent act or omission of a highway or bridge officer, the answer must be made according to the local law. Under no circumstances can the question become one of general law. Even in the absence of a statutory provision concerning the extent and conditions of liability, the question is bound to turn upon the construction of the local statutes which impose highway and bridge duties upon the cities. “It is purely local in its significance and extent. It involves simply a consideration of the powers and liabilities granted and imposed by legislative action upon cities within the state." Detroit v. Osborne, 135 U. S. 492, 498, 10 Sup. Ct. 1012, 34 L. Ed. 260.
Wisconsin transplanted the Massachusetts statutory scheme. Daniels v. Racine, 98 Wis. 649, 74 N. W. 553. Chapter 16, Rev. St. Wis. 1849, detailed the system of “Highways and Bridges.” Upon municipalities, towns (townships), counties, villages and cities, the duty was laid alike as creatures of the state. For failure of duty to keep the highways and bridges open and safe for travel, section 103 of the chapter created an express liability. Section 109 required that “The provisions of this chapter relating to highways and bridges shall be construed to extend to all parts of the state, except where special provisions, inconsistent therewith, have been or shall be made by law in relation to particular towns, counties, cities or villages.” The system continues in force. Rev. St. Wis. 1898, c. 52, $$ 1339, 1347.
This general scheme of duty and liability, cast by the state upon all her municipalities alike, with no distinction and no basis for distinction between "voluntary” and “involuntary” (for a city charter is not a contract, but governmental regulation, changeable at the will of the Legislature—Washburn v. Oshkosh, 60 Wis. 453, 19 N. W. 364), applies to Milwaukee. Kittredge v. Milwaukee, 26 Wis. 46; Harper v. Milwaukee, 30 Wis. 365; Daniels v. Racine, 98 Wis. 649, 74 N. W. 553. The sections of the charter relating to the Grand Avenue Bridge are not in conflict, but entirely harmonious, with the pre-existent duty. They merely direct how the subsisting duty shall be performed at the specific place, with no legislative attempt at increase or diminution of liability. Indeed, it has been ruled that a charter exemption, violative of the general scheme of highway duty and liability, is unconstitutional. Hincks v. Milwaukee, 46 Wis. 559, 1 N. W. 230, 32 Am. Rep. 735.
That Wisconsin should look to Massachusetts for interpretation of adopted legislation would naturally be expected. Section 103, c. 16, Rev. St. 1849, created liability without limitation of amount or condition of giving notice. Milwaukee v. Davis, 6 Wis. 377, decided in 1857, relied on by plaintiff to prove a liability independent of statute, holds the city answerable for negligence of highway officers without mentioning the statute, but in support of the ruling cites New England cases which show the liability to be purely statutory. After section 103 was amended (in line with New England statutes) by adding conditions and limitations, cases arose in which the conditions were combated, and the Wisconsin Supreme Court expressly ruled that the liability was wholly statutory and could therefore be cut down or taken away by the Legislature at will
. Stilling v. Thorp, 54 Wis. 528, 11 N. W. 906, 41 Am. Rep. 60; Harper v. Milwaukee, 30 Wis. 365; McLimans v. Lancaster, 63 Wis. 596, 23 N. W. 689; Sowle v. Tomah, 81 Wis. 349, 51 N. W. 571; Reed v. Madison, 83 Wis. 171, 53 N. W. 547, 17 L. R. A. 733; Daniels v. Racine, 98 Wis. 649, 74 N. W. 553. In Reed v. Madison, the court, after holding that municipal liability for negligence of highway officers was wholly statutory and that even that liability was available only to travelers, considered a question which had not theretofore arisen in Wisconsin, whether recovery could be had by a child who was using the street for travel and at the same time for play. “This court, having followed Massachusetts in respect to other questions of statutory liability, may well accept the decisions of that state as sufficient authority on this question also.” In Stephani v. Manitowoc, 89 Wis. 467, 62 N. W. 176, plaintiff's intestate fell into an open draw. Liability under section 1339 was upheld on account of failure to provide barriers and lights. Counsel for the city, among other contentions, claimed that the alleged cause of action was based on the negligence of the bridge tender and that there was no liability because such a case was not within the section. Answering this claim, the court said:
"If the city had provided suitable barriers and lights, and the bridge ten. der had omitted to use them, that would be a different case. It would be the case which the defendant argues. It would be like the question decided in Butterfield v. Boston, 148 Mass. 544, 20 N. E. 113, 2 L. R. A. 447, which would be a strong authority if applicable.”
Wisconsin was free to join either of the opposing groups. With which she has allied herself seems unmistakable. What, then, is the duty of this court? To put ourselves in the Wisconsin atmosphere; to view the case from Wisconsin's attitude; to accept the premises, the arguments, the conclusions, the exclusions, of the Wisconsin court as indicating the Wisconsin law; for only the accident of citizenship enabled plaintiff to come into the federal court with this question of local law.
The two doctrines start off facing in opposite directions. The "general group” furnishes no exact precedent on the facts of this case. The “New England group” does. If the question, as one of “case law," be taken as 10 miles from the parting of the ways, the “New England group” has traveled the whole distance, except that Wisconsin has gone only 9 as yet. To determine the direction of the next step Wisconsin would take, it is a wrong method to travel the 9 miles which the "general group” has gone in the opposite direction, infer what that group would do, and then drag Wisconsin 18 miles to take that step.
Since this record, like a patent case, must be read in the light of the particular art, no progress is made by pointing out the correspondences between the two groups in respect to the abstract propositions that a city is liable for private acts and is not for governmental, and the concrete instances of liability for proprietary acts and nonliability for acts of fire or police or health officers; for the split is not there. In Maxmilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468, the city was held not liable for the negligence of a city ambulance officer, on the ground that the service was for the public generally and not primarily for the city. The case would read as well for a street or bridge officer, if the New York statutes were construed to cast on cities the duty of caring for streets and bridges in the interest of the whole people and not in the private interest of the city. Oliver v. Worcester, 102 Mass, 489, 3 Am. Rep. 485, is an instance of the “New England group's” holding a city liable as a private proprietor. It does not touch the highway question. In Weightman v. Washington, 1 Black, 39, 17 L. Ed. 52, the Supreme Court sat as a local court for the District of Columbia, and construed local legislation along the theory of the "general group.”
The particular art herein involved being the construction of Wisconsin's statutory scheme of highway and bridge duty and liability, it is a wrong method to take Wisconsin nonhighway and nonbridge decisions and from them attempt to prove that the Wisconsin Supreme Court logically should, and therefore probably would, hold that Milwaukee maintained and operated the drawbridge for its private benefit and advantage. And the attempt seems abortive.
In Durkee v. Kenosha, 59 Wis. 123, 17 N. W. 677, 48 Am. Rep. 480, the city was made to respond for the seizure of Durkee's goods under a void special assessment for the opening of a street. The officers acted under color of authority. The superior was liable because in truth the superior had no authority to take the property without due process of law.
To Nicolai's complaint against the town of Vernon and highway officers, who were about to include a part of his land within a highway (88 Wis. 551, 60 N. W. 999), the town demurred on the ground that it was not a proper party defendant. The officers in good faith attempted to act as officers of the town upon which was cast the duty of caring for the highway. The town was therefore enjoined from invading private property without right.
Little v. Madison, 42 Wis. 643, 24 Am. Rep. 435, involves the same principle. The city licensed a bear show to be held in the streets. No authority; but there was color, by reason of the general power to license shows at proper places.
The nonapplicability of such decisions to a case of a highway officer's negligent performance of an imposed duty to travelers is quite obvious. The city, through its officer, in keeping the highway open and safe for travel, is performing a service for the sovereign (according to the theory of the “New England group”), and is not answerable in the absence of a statute creating liability. In doing acts not authorized by the sovereign, the city, of course, cannot plead the sovereign's exemption from suit. The court, in Ziegler v. West Bend,
· 102 Wis. 17, 78 N. W. 164, said:
"That rule applies only to the doing of something which the city has no right to do, rendering a street or highway dangerous for public travel, not to a failure to do properly what a city has a right to do."
And in Bunker v. Hudson, 122 Wis. 43, 99 N. W. 448:
"In grading the street the city was doing one of the things which, as a municipal corporation, it was authorized to do. That work was done in an improper or negligent manner, so as to invade (which it had no right to do) the rights of the plaintiffs, not as members of the public, but as adjoining proprietors. Towards them the city's act was not governmental, but proprietary.”
Towards travelers on the highway, the same acts of the same officers would be public or governmental, and not private or proprietary.
In Weisenberg v. Winneconne, 56 Wis. 667, 14 N. W. 871, the injury resulted from the failure of the village's agents to open the draw in a bridge maintained by the village over Wolf river, a navigable waterway, whereby the vessel on which the injured person was traveling collided with the bridge. The court declared that the village's liability rested “upon the plainest of elementary principles.” The complaint was bottomed on the charge that the village "obstructed the river and neglected to remove the obstruction. The village was granted by the state the right to maintain the bridge only on the condition that the draw should be opened “when the river at this point should be required for the navigation of vessels.” “When this duty was neglected, then the bridge became and was a complete obstruction to the navigation of the river.” These facts support a "straight common-law action," or one based on “section 1598, Rev. St. Wis. 1898” (which makes any obstructor of navigation liable for damages), or one, it may be added, founded on the admiralty jurisdiction of the United States. These are the fundamental principles on which the court predicated the village’s liability. Of course, the question whether the village, in obstructing navigation, was entitled to plead the sovereign's exemption, was not raised or discussed by the court, for the very good reason that the state could not grant the exemption. This results from the difference in the state's relation to landways and waterways. Respecting landways, the United States may build and control a road through a state; but the roads built by the sovereign people within a state are the state's highways. The parts thereof within cities the state may require to be maintained by the cities. Wisconsin had the right to adopt the plan by which the service is governmental and the cities are clothed with the state's exemption. Respecting waterways, Wisconsin had no such power. Over the navigable waters of the United States the several states by the Constitution (and Wisconsin as well by the Ordinance of 1787) have made the federal government the ultimate sovereign. The sovereignty has been exercised by taking jurisdiction of drawbridges and by declaring it to be unlawful to obstruct navigation by failure to open draws. Act July 5, 1884, c. 229, § 8, 23 Stat. 148 [U. S. Comp. St. 1901, p. 3532] ; Act Aug. 18, 1894, c. 299, § 5, 28 Stat. 362 [U. S. Comp. St. 1901, p. 3538] ; Act March 3, 1899, c. 425, § 17, 30 Stat. 1153 [U. S. Comp. St. 1901, p. 3534]. No obstructor of navigation, whether an individual, a business corporation, or a city, can rightfully plead a local statute or charter as a defense. And if a local court should deny a waterway traveler his rights under the paramount law, the federal courts, when properly invoked, will disregard the local decisions (Workmen v. New York, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314; Greenwood v. Westport [D. C.] 60 Fed. 560), though in respect to a landway. traveler's rights the duty of the federal courts is to apply the local law (Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012, 34 L. Ed. 260). The Wisconsin Supreme Court reached its conclusion not merely by putting the common law of the state in line with the general maritime law, but also by calling attention to the fact that the Legislature had expressly declared a liability for obstructing navigation by failure to open the draw. And in order that this decision of a waterway case might not be confounded with Wisconsin's landway doctrine, the court said:
"The only highway (the italics are the court's] in question in this case is this navigable river, and the liability of towns in respect to roads and bridges is not involved. for the deceased was not seeking to use the bridge for the purpose of travel, and it is complained of only as an obstruction to navigation."
Thus the court in effect has declared that the only similarity between that case and this consists in the fact that in each there is a drawbridge, and that in principle they are as different as if Winneconne through her officer had obstructed navigation by dumping rocks into the river.
The conclusion that the Winneconne Case proves that the rule of respondeat superior applies to this controversy involves a further error than the rejection of the premises, the reasoning, the spirit and scope, of the decision as rendered by the Wisconsin Supreme Court.
Because Winneconne was held liable to Weisenberg for the negligence of a bridge tender, it is assumed that a city would therefore be liable to any one who was injured through the negligence of a bridge tender, no matter what was the measure of duty owing by the city to the injured party. That in Wisconsin a city may be answerable for the acts of its highway officers to one injured person, and for the same acts of the same officers not to another, is clear. Liability depends on the nature of the right that can be asserted by the plaintiff, that right being the correlative of the duty owing to him by the city. For example: Highway officers in grading a highway negligently obstruct