Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

4 Iowa R. R. Land Co. v. County of Sac. 39 Iowa. 124: St. Mary's Industrial School e. Brown, 45 Md. 310; and see Ex parte Parsons, 1 Hughes, 282; Loan Assoc. v. Topeka, 20 Wall. 655. When such corpo rations are created, the power of taxation is vested in them as an essential attribute for all the purposes of their existence, unless its exercise be in express terms prohibited: United States r. New Orleans, U. S. 381. But the courts of the United States can impart no taxing power to a municipal corporation: Vance v. Little Rock, 30 Ark. 435. 5 Howell v. Village of Cassopolis, 35 Mich. 471; and see Mayor etc. r. Thomas, 5 Cold. 600.

6 People v. State Treasurer, 23 Mich. 499; Loan Assoc. v. Topeka, 20 Wall. 655; and see § 291, ante.

7 See Keller v. State, 11 Md. 525; Mason v. Lancaster, 4 Bush, 406; Nashville v. Althrop, 5 Cold. 554.

8 St. Louis r. Laughlin, 49 Mo. 559; Carroll v. Mayor etc. 12 Ala. 173; and sees 296, ante.

9 City Council v. State, 2 Speers, 719; Nashville v. Althrop, 5 Cold, 554.

10 State v. Columbia, 6 Rich. 1. Compare Cobb v. Elizabeth City, 75 No. Car. 1; Mobile r. Dargan, 45 Ala. 310.

11 Richmond v. Richmond etc. R. R. Co. 21 Gratt. 604.

12 Sheehan v. Good Samaritan Hospital, 50 Mo. 155; 11 Am. R. 412. 13 Baltimore v. Cemetery Co. 7 Md. 517.

14 See Brightman v. Kirner, 22 Wis. 54; Paine v. Spratley, 5 Kan. 525; § 294. ante.

15 Baptist Church v. McAtee, 8 Bush, 508; 8 Am. R. 480; First Presby. Church e. Fort Wayne, 36 Ind. 338; 10 Ain. R. 35.

16 Amite City. Clements, 24 La. An. 27; and see Dubuque ». Illinois Ceut. R. R. Co. 39 Iowa, 56.

17 State v. Milwaukee, 25 Wis. 122; Britton ». Platte City,2 Dill. 1; Heine v. Levee Commissioners, 19 Wall. 655; and see tit. MÄNDAMUS. 18 U. S. Const. art. I, § 10. subd. 2.

19 The North Cape, 6 Biss. 505.

§ 300. Liabilities of, in general.-Where duties of a judicial nature are imposed upon a municipal corporation, the due execution of which requires the exercise of deliberation, judgment, and discretion, the corporation is exempt from all responsibility by action for the motives which influence it, and for the manner in which such duties are performed. Such a corporation, being public and sovereign in its nature, is not liable to be sued either for a failure to exercise powers intrusted to the judgment and discretion of its proper authorities, or for errors committed in their exercise.2 Thus, the failure of the corporate authorities to exercise the power to the full

extent necessary to protect the city from damages by fire, does not render the city liable to an action therefor; & and in general, no action lies to charge a city for damages for results of defective municipal legislation.4 But where judicial duty ends, and ministerial duty begins, there immunity ceases and liability attaches.5 And where a duty of general interest is enjoined upon the corporation, and it appears that the burden was imposed in consideration of the privileges granted and enjoyed, and the means to perform the duty are placed at the disposal of the corporation, it is clearly liable to the public for an unreasonable neglect to comply with the requirement of the charter. In respect to such duties, a town or city is not a mere municipal corporation, but is a private one, and liable as an individual would be under the same circumstances.7 And municipal corporations are in general liable upon their authorized contracts to the same extent as private corporations or natural persons.8 And in certain cases, an action may be maintained against a municipal corporation upon an implied promise; 9 but never in a case where the corporation possesses no power to contract.10 But a contract duly made by a municipal corporation, under authority of a statute, cannot be impaired by a subsequent act amending the statute so as to take away the power of the corporation to make such contract.11 An illegal and void tax or license fee collected by a city may be recovered back in an action against the corporation,12 irrespective of its having been collected by compulsion, or paid under protest.18 And a purchaser of city bonds, which are void for want of authority in the city to issue them, may recover back from the city the amount paid, as for a failure of the consideration.14

1 Comm'rs v. Duckett. 20 Md. 468; Jones v. New Haven, 34 Conn. 1; Duke v. Mayor etc. 20 Ga. 635; Weightman v. Washington, 1 Black,

39.

2 Brinkmeyer v. Evansville, 29 Ind. 187; Barton v. Syracuse, 37 Barb. 292; 36 N. Y. 54; Hill v. Boston, 122 Mass. 344; and see Hill v. Charlotte, 72 No. Car. 55; Hart v. Bridgeport, 13 Blackf. 289.

BOONE CORP.-40.

3 Wheeler r. Cincinnati, 19 Ohio St. 19; Brinkmeyer v. Evansville, 29 Ind. 187: Hafford e. New Bedford, 16 Gray, 297; and see Schattner . Kansas City, 53 Mo. 162.

4 Saxton v. St. Joseph, 60 Mo. 153.

5 Jones v New Haven, 34 Conn. 1; Lacour r. Mayor etc. 3 Duer, 406; Lloyd e. Mayor etc. 5 N. Y. 367. See Little Rock v. Willis, 27 Ark. 572; Sheldon v. Kalamazoo, 24 Mich. 383.

6 Richmond v. Long, 17 Gratt. 375; Weightman v. Washington, 1 Black, 39; Weet v. Trustees etc. 16 N. Y. 161, note.

7 Jones v. New Haven, 34 Conn. 1.

8 Sillcocks r. Mayor etc. 11 Hum. 431; Hard v. City of Decorah, 43 Iowa, 313; Hood r. Lynn, I Allen, 103; Topsham v. Rogers, 42 Vt. 189.

See tit. ULTRA VIRES.

9 Harlem Gas Light Co. v. Mayor etc. 3 Robt. 100; 33 N. Y. 309; Seagraves v. Alton, 13 Ill. 366; Gas Co. v. San Francisco, Cal. 453; Pimental v. San Francisco, 21 id. 351; and see Parks v. Waltham, 120 Mass. 160.

10 Burrill v. Boston, 2 Cliff. 590; and compare Springfield Milling Co. v. Lane Co. 5 Oreg. 265; French v. Auburn, 62 Me. 452; Kollock e. Stevens Point, 37 Wis. 348; McDonald . Mayor etc. I Hum, 719; 4 Thomp. & C. 177.

11 Goodale v. Fennell, 27 Ohio St. 426; and see State v. Heath, 20 La. An. 172; Earle v. Wallinford, 44 Vt. 307; Allegheny City v. McClur kan, 14 Pa. St. 81. Compare Rittenhouse v. Mayor etc. 26 Md. 336.

12 First Ecclesiastical Soc. r. Hartford, 38 Coun. 274; Supervisors v. Mauny, 56 11. 160; Powers e. Sanford, 35 Me. 153.

13 Callaway v. Mayor etc. 48 Ga. 189; Steamboat Co. r. New Orleans, 23 Int. Rev. Rec. 19; Galveston e. Sydnor. 30 Tex. 236. Compare Jenks v. Lima Township, 17 Ind. 325; Baker e. Cincinnati, 11 Ohio St. 534; Cook v. Freeholders, 2 Dutch. 326; Haines v. School District, 41 ie.

246.

14 Paul v. City of Kenosha, 32 Wis. 266; and see Herzo v. San Francisco, 33 Cal. 184; Allen v. Cameron, 3 Dill. 198; De Voss v. Richmond, 18 Gratt. 338.

§ 301. Liability for acts of officers or agents.—In general, if the officer or agent of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the misfeasance or negligence of such officer or agent, the corporation is liable, as in the case of private corporations or individuals. But when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, then the corporation is not liable for the consequences of such acts or omissions on the part of its officers and agents.2 Where the thing done lies wholly beyond the corporate

powers, the corporation cannot be held liable, whether it directly commanded the performance of the act, or the act was done by its officers without express command.3 And in order to render a municipal corporation liable for wrongs committed by persons claiming to act for it, the proof must show either that the act was expressly authorized, or done in good faith in pursuance of a general anthority, or that, having been done without full authority, it was afterwards adopted or ratified by the corporation.6 And the corporation is not liable for the acts or omissions of duty of independent officers, whose duties are specifically prescribed by law, although appointed by the corporation. In this respect, the officers are quasi civil officers of the government, though appointed by the corporation; but it may be held liable for the acts of those who are in law its agents, though they may not be appointed by itself. A municipal corporation is not liable, unless by statute, for the negligence of the persons acting in its fire department; 10 nor for the negligence of its officers or agents in executing sanitary regulations adopted for the purpose of preventing the spread of contagious disease; nor for the neglect or unskillfulness of selectmen or physicians employed by the town, in consequence of which the small-pox spreads and the plaintiff catches it; 12 nor is a city liable for the trespasses and unlawful acts of violence of its police officers; 18 nor is it liable to an action for damages for the illegal arrest of a citizen by one of its police officers 14 But the doctrine of respondeat superior applies, and a city may be held liable for the trespasses of an officer, when he acts not only as a public officer, but also under express anthority of the city government, and in the attempt to obey its directions. 15 So a city is not in general liable for injuries caused by the negligence of a contractor in performing work under a contract between him and the city government; 16 but it is otherwise where the relation of master and servant is shown to exist between them.17

1 Murtaugh v. St. Louis, 44 Mo. 479; and see § 300, ante.

2 Murtaugh v. St. Louis, 44 Mo. 479; Hart v. Bridgeport, 13 Blatchf. 289; and see Kichmond v. Long, 17 Gratt. 375; Mead v. New Haven, 40 Coun. 72; Ham v. Mayor etc. 5 Joues & S. 458.

3 Cole r. Nashville, 4 Sneed, 162; Morrison r. Lawrence, 98 Mass. 219; Cumberland etc. Canal Co. v. Portland, 62 Me. 504; Chelsea v. Washington, 48 Vt. 610; Thomson v. Boonville, 61 Mo. 262; Hanvey v. City of Rochester, 35 Barb. 177; Harrison v. Columbia, 44 Tex. 418; Chicago v. Turner, 80 Ill. 419; Smith e. City of Rochester, 76 N. Y. 506; Hunt r. Boonville, 65 Mo. 620; 27 Am. R. 299.

4 Thayer v. City of Boston, 19 Pick. 511; Buffalo etc. Turnp. Co. v. Buffalo, 58 N. Y. 639; Lee e. Sandy Hill, 40 id. 442.

5 Buffalo etc. Turnp. Co. v. Buffalo, 58 N. Y. 639; Chicago v. McGraw, 75 111. 566.

6 Sherman v. Grenada, 51 Miss. 186; and see Arlington v. Pierce, 122 Mass. 270; Pesterfield v. Vickers, 3 Cold. 205; Fox v. Northern Liberties, 3 Watts & S. 103.

7 Maxmilian v. Mayor etc. 2 Hun, 263; 62 N. Y. 160; 20 Am. R. 468; and see Lorillard v. Town of Monroe, 1 N. Y. 392; Sherbourne v. Yuba Co. 21 Cal. 113; Wheeler v. Cincinnati, 19 Ohio St. 19; Dunbar v. Bos ton, 112 Mass. 75; Sutton v. Board of Police, 41 Miss. 230; Barnes v. District of Columbia, 91 U. S. 540.

8 Martin v. Mayor etc. 1 Hill, 545; and compare Prather v. Lexing ton, 13 Mon. B. 559.

9 Commissioners v. Duckett, 20 Md. 468.

10 Hayes v. Oshkosh, 32 Wis. 314; Howard v. San Francisco, 51 Cal. 52; Torbush v. Norwich, 38 Conn. 225; Heller v. Mayor etc. 53 Mo. 159.

11 Ogg v. City of Lansing, 35 Iowa, 495; 14 Am. R. 499; and see Small v. Danville, 51 Me. 359: Barbour v. Ellsworth, 67 id. 294; Rielly v. Philadelphia, 60 Pa. St. 467.

12 Brown v. Vinalhaven, 65 Me. 402.

13 Dargon r. Mobile, 31 Ala. 469; Kimball v. Boston, 1 Allen, 417; and see Elliott v. Philadelphia, 7 Phila. 128.

14 Cook v. Mayor etc. 54 Ga. 468; Calwell v. City of Boone, 51 Iowa, 687; 33 Am. R. 154; Burch v. Hardwick, 30 Gratt. 24; 32 Am. K. 640.

15 Woodcock v. Calais, 66 Me. 234.

16 Pack v. New York, 8 N. Y. 222; Painter v. Pittsburg, 46 l'a. St.213; Reed v. Allegheny City, 79 id. 300.

17 Barry v. St. Louis, 17 Mo. 121; and compare Mayor etc. v. Bailey, 2 Denio, 433; Phinizy v. Augusta, 47 Ga. 260.

§ 302. Construction and repair of sewers.-The duty to construct sewers is, in its nature, judicial,1 and a city incurs no liability for the entire omission to construct them. But having determined upon their construction, the duties of constructing them properly and keeping them in good condition and repair are ministerial; and negligence in the discharge of such duties will render the corporation liable for the resulting damages. And there must be skill and care in determining the capacity of the

« ΠροηγούμενηΣυνέχεια »