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tractors were to be considered as the agents of the city, so that the maxim respondeat superior should apply, says: "It is [* 253] to be observed that the *power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city; they belong to the city. The corporation and its corporators, the citizens, are alone interested in them; the outside public or people of the State at large have no interest in them, as they have in the streets of the city, which are public highways.

"The donee of such a power, whether the donee be an individual or a corporation, takes it with the understanding — for such are the requirements of the law in the execution of the power that it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures will be taken, in the execution of it, to guard against accidents to persons lawfully using the highway at the time. He is individually bound for the performance of these obligations; he cannot accept the power divested of them, or rid himself of their performance by executing them through a third person as his agent. He may stipulate with the contractor for their performance, as was done by the city in the present case, but he cannot thereby relieve himself of his personal liability, or compel an injured party to look to his agent, instead of himself, for damages." And in answer to the objection that the contract was let to the lowest bidder, as the law required, it is shown that the provision of law to that effect was introduced for the benefit of the city, to protect it against frauds, and that it should not, therefore, relieve it from any liability.1

1 See also Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; Grant v. City of Brooklyn, 41 Barb. 381; City of Buffalo v. Holloway, 14 Barb. 101, and 7 N. Y. 493; Lloyd v. Mayor, &c. of New York, 5 N. Y. 369; Delmonico v. Mayor, &c. of New York, 1 Sandf. 222; Barton

v. Syracuse, 37 Barb. 292; Storrs v. Utica, 17 N. Y. 104; Springfield v. LeClaire, 49 Ill. 476; Blake v. St. Louis, 40 Mo. 569; Baltimore v. Pendleton, 15 Md. 12; St. Paul v. Leitz, 3 Minn. 297; also numerous cases collected and classified in Dillon on Municipal Corporations. A mu

* We have not deemed it important, in considering [* 254] the subject embraced within this chapter, to discuss the various questions which might be suggested in regard to the validity of the proceedings by which it is assumed in any case that a municipal corporation has become constituted. These ques

nicipal corporation is not liable for neglect to devise and construct a proper system of drainage. Carr v. Northern Liberties, 35 Penn. St. 324. See ante, p. 208 and note. Cities are not liable for the illegal conduct of officials in the discharge of duty. Dillon, §§ 774-778, and cases cited; Grumbine v. Washington, 2 McArthur, 578.

The following are some of the more recent cases in which the liability of municipal corporations for neglect of public duties has been considered:

For nuisance in highway, sewer, &c.: Todd v. Troy, 61 N. Y. 506; Masterton v. Mt. Vernon, 58 N. Y. 391; Merrifield v. Worcester, 110 Mass. 216; s. c. 14 Am. Rep. 592; Woodward v. Worcester, 121 Mass. 245; Chicago v. Brophy, 79 Ill. 277; Chicago v. O'Brennan, 65 Ill. 160. For invasion of private right or property: Sheldon v. Kalamazoo, 24 Mich. 383; Babcock v. Buffalo, 56 N. Y. 268; Lee v. Sandy Hill, 40 N. Y. 442; Phinizy v. Augusta, 47 Geo. 260; Helena v. Thompson, 29 Ark. 569; Kobs v. Minneapolis, 22 Minn. 159. For negligent construction of sewers: Nims v. Troy, 59 N. Y. 500; Van Pelt v. Davenport, 42 Iowa, 308; Rowe v. Portsmouth, 56 N. H. 291; Ashley v. Port Huron, 35 Mich. 296; s. c. 20 Am. Rep. 628, note. For negligence in construction and improvement of streets: Pekin v. Winkel, 77 Ill. 56; Bloomington v. Brokaw, 77 Ill. 194; Pekin v. Brereton, 67 Ill. 477; Chicago v. Langlass, 66 Ill. 361; Mead v. Derby, 40 Conn. 205; Milledgeville v. Cooley, 55 Geo. 17; Prentiss v. Boston, 112 Mass. 43;

Saltmarsh v. Bow, 56 N. H. 428; Sewall v. St. Paul, 20 Minn. 511; Kentworthy v. Ironton, 41 Wis. 647; Hoyt v. Hudson, 41 Wis. 105. For defective sidewalk: Springfield v. Doyle, 76 Ill. 202; Champaign v. Pattison, 50 Ill. 62; Townsend v. Des Moines, 42 Iowa, 657; Rice v. Des Moines, 40 Iowa, 638; McAuley v. Boston, 113 Mass. 503; Harriman v. Boston, 114 Mass. 241; Morse v. Boston, 109 Mass. 446; McLaughlin v. Correy, 77 Penn. St. 109; Boucher v. New Haven, 40 Conn. 456; Congdon v. Norwich, 37 Conn. 414; Stewart v. Ripon, 38 Wis. 584; Chapman v. Macon, 55 Geo. 566; Moore v. Minneapolis, 19 Minn. 300; Furnell v. St. Paul, 20 Minn. 117; Omaha v. Olmstead, 5 Neb. 446; Higert v. Green Castle, 43 Ind. 574; Providence v. Clapp, 17 How. 161; Smith v. Leavenworth, 15 Kan. 81; Atchison v. King, 9 Kan. 550. For injury by limb falling from tree overhanging street: Jones v. New Haven, 34 Conn. 1. For failure to keep street in repair: Gorham v. Cooperstown, 59 N. Y. 236; Hines v. Lockport, 50 N. Y. 236; Bell v. West Point, 51 Miss. 262; Chicago v. McGiven, 78 Ill. 347; Alton v. Hope. 68 Ill. 167; Centralia v. Scott, 59 Ill. 129; Winbigler v. Los Angelos, 45 Cal. 36; Market v. St. Louis, 56 Mo. 189; Willey v. Belfast, 61 Me. 434; Bill v. Norwich, 39 Conn. 222; Lindholm v. St. Paul, 19 Minn. 245; Shartel v. Minneapolis, 17 Minn. 308; Leary v. Mankato, 21 Minn. 65; Griffin v. Williamstown, 6 W. Va. 312. For failure to keep sewers in repair: Munn v. Pittsburg, 40 Penn. St. 364.

tions are generally questions between the corporators and the State, with which private individuals are supposed to have no concern. In proceedings where the question whether a corporation exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the State as such. Such a question should be raised by the State itself, by quo warranto or other direct proceeding. And the rule, we apprehend, would be no different, if the constitution itself prescribed the manner of incorporation. Even in such a case, proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the State; and private parties could not enter upon any question of regularity. And the State itself may justly be precluded, on the principle of estoppel, from raising such an objection, where there has been long acquiescence and recognition.2

1 State v. Carr, 5 N. H. 367; President, &c. of Mendota v. Thompson, 20 Ill. 200; Hamilton v. President, &c. of Carthage, 24 Ill. 22. These were prosecutions by municipal corporations for recovery of penalties imposed by by-laws, and where the plea of nul tiel corporation was interposed and overruled. See also Kayser v. Bremen, 16 Mo. 88; Kettering v. Jacksonville, 50 Ill. 39; Bird v. Perkins, 33 Mich. 28.

2 In People v. Maynard, 15 Mich. 470, where the invalidity of an act organizing a county, passed several years before, was suggested on constitutional grounds, Campbell, J., says: "If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty. But inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recognized as valid by all parties interested, it cannot now be disturbed. Even in private associations the acts of parties interested may often estop them from relying on legal objections, which might have availed them if not waived.

But in public affairs, where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can no longer be open to question. See Rumsey v. People, 19 N. Y. 41; and Lanning v. Carpenter, 20 N. Y. 474, where the effect of the invalidity of an original county organization is very well considered in its public and private bearings. There have been direct legislative recognitions of the new division on several occasions. The exercise of jurisdiction being notorious and open in all such cases, the State as well as county and town taxes being all levied under it, there is no principle which could justify any court, at this late day, in going back to in

quire into the regularity of the law of 1857." A similar doctrine has been applied in support of the official character of persons who, without authority of law, have been named for municipal officers by State legislation, and whose action in such offices has been acquiesced in by the citizens or authorities of the municipality. See People v. Salomon, 54 Ill. 51; People v. Lothrop, 24 Mich. 235. Compare

Kimball v. Alcorn, 45 Miss. 151. But such acquiescence could not make them local officers and representatives of the people for new and enlarged powers subsequently attempted to be given by the legislature. People v. Common Council of Detroit, 28 Mich. 228. Nor in respect to powers not purely local. People v. Springwells, 25 Mich. 153. And see People v. Albertson, 55 N.

Y. 50.

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PROTECTION TO PERSON AND PROPERTY UNDER THE CONSTITUTION OF THE UNITED STATES.

As the government of the United States was one of enumerated powers, it was not deemed important by the framers of its Constitution that a bill of rights should be incorporated among its provisions. If, among the powers conferred, there was none which would authorize or empower the government to deprive the citizen of any of those fundamental rights which it is the object and the duty of government to protect and defend, and to insure which is the sole purpose of bills of rights, it was thought to be at least unimportant to insert negative clauses in that instrument, inhibiting the government from assuming any such powers, since the mere failure to confer them would leave all such powers beyond the sphere of its constitutional authority. And, as Mr. Hamilton argued, it might seem even dangerous to do so. "For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said. that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge, with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

1 Federalist, No. 84.

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