6 "The law on this subject was more distinctly brought out and considered by this court in the late case of McCloud v. Selby,1 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.' 6 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 which had so [*247] early an origin in New England. * More just, convenient, 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. 1 10 Conn. 390-395. 2 Beardsley v. Smith, 16 Conn. 875, citing 2 Kent, 221; Angell & Ames on Corp. 374; 1 Swift's Dig. 72, 794; 5 Dane's Abr. 158. And see Dillon, Mun. Corp. c. 1. It was held competent in the above case to The common law gives no such extend the same principle to incorporated cities; and an act of the legislature permitting the enforcement of city debts in the same mode was sustained. For a more recent case in Massachusetts than these cited, see 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.2 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 1 This rule, however, has no application to the case of neglect to perform those obligations which are incurred by the political subdivisions of the State when special duties are imposed on them by law. Hannon . St. Louis Co. Court, 62 Mo. 313. 2 Mower v. Leicester, 9 Mass. 250; Bartlett v. Crozier, 17 Johns. 439; Farnum v. Concord, 2 N. H. 392; Adams v. Wiscasset Bank, 1 Me. 361; Baxter v. Winooski Turnpike, 22 Vt. 123; Beardsley v. Smith, 16 Conn. 375; Chidsey v. Canton, 17 Conn. 475; Young v. Commissioners, &c., 2 N. & McC. 537; Commissioners of Highways v. Martin, 4 Mich. 557; Morey r. Newfane, 8 Barb. 645; Lorillard r. Monroe, 11 N. Y. 392; Galen v. Clyde and Rose Plank Road Co., 27 Barb. 543; Reardon v. St. Louis, 36 Mo. 555; Sherburne v. Yuba Co., 21 Cal. 113; State v. County of Hudson, 30 N. J. 137; Hedges v. Madison Co., 1 Gilm. 567; Granger v. Pulaski Co., 26 Ark. 37; Weightman v. Washington, 1 Black, 39; Ball v. Winchester, 32 N. H. 443; Eastman v. Meredith, 36 N. H. 284; Waltham v. Kemper, 55 Ill. 346; Sutton v. Board, 41 Miss. 236; Cooley v. Freeholders, 27 N. J. 415; Bigelow v. Randolph, 14 Gray, 541; Symonds v. Clay Co., 71 Ill. 355; People v. Young, 72 Ill. 411. These cases follow the leading English case of Russell v. Men of Devon, 2 T. R. 667. In the very carefully considered case of Eastman v. Meredith, 36 N. H. 284, it was decided, on the principle above stated, that if a building erected by a town for a town-house is so imperfectly constructed that the flooring gives way at the annual town-meeting, and an inhabitant and legal voter, in attendance on the meeting, receives thereby a bodily injury, he cannot maintain an action against the town to recover damages for this injury. The case is carefully distinguished from those where corporations have been held liable for the negligent use of their own property by means of which others are injured. The familiar maxim that one shall so use his own as not to injure that which belongs to another is of general application. 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 1 Selden, J., in Weet v. Brockport, 16 N. Y. 161, note. See also Mayor of Lyme v. Turner, Cowp. 86; Henley v. Lyme Regis, 5 Bing. 91; Same case in error, 3 B. & Adol. 77, and 1 Bing. N. C. 222; Mayor, &c. of New York v. Furze, 3 Hill, 612; Rochester White Lead Co. v. Rochester, 3 N. Y. 464; Hutson v. Mayor, &c. of New York, 9 N, Y. 163; Conrad v. Ithaca, 16 N. Y. 158; Mills v. Brooklyn, 32 N. Y. 489; Barton v. Syracuse, 36 N. Y. 54; Lee v. Sandy Hill, 40 N. Y. 442; Clark v. Washington, 12 Wheat. 40; Riddle v. Proprietors of Locks, &c., 7 Mass. 183; Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Mears v. Commissioners of Wilmington, 9 Ired. 73; Browning v. Springfield, 17 Ill. 143; Bloomington v. Bay, 42 Ill. 503; Springfield v. LeClaire, 49 Ill. 476; Peru v. French, 55 Ill. 318; Pittsburg v. Grier, 22 Penn. St. 54; Jones v. New Haven, 34 Conn. 1; Stackhouse v. Lafayette, 26 Ind. 17; Brinkmeyer v. Evansville, 29 Ind. 187; Sawyer v. Corse, 17 Grat. 241; Richmond v. Long, 17 Grat. 375; Blake v. St. Louis, 40 Mo. 569; Scott v. Mayor, &c. of Manchester, 37 Eng. L. & Eq. 495; Smoot v. Wetumpka, 24 Ala. 112; Detroit v. 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. in many cases.1 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 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 the private corporate advantage, then the corporation is not liable for the consequences of such acts or omissions." Citing Bailey v. New York, 3 Hill, 531; Martin v. Brooklyn, 1 Hill, 550: Richmond v. Long's Adm'r, 17 Grat. 375; Sherburne v. Yuba Co., 21 Cal. 113; Dargan v. Mobile, 31 Ala. 459; Stewart v. New Orleans, 9 La. Ann. 461; Prother v. Lexington, 13 B. Monr. 559. And as to exemption from liability in the exercise or failure to exercise legislative authority, see ante, p. *208 and note. As to who are to be regarded as municipal officers, see Maximilian v. New York, 62 N. Y. 160; s. c. 20 Am. Rep. 468, and cases there cited. 1 Weet r. Brockport, 16 N. Y. 161, note; Hickok v. Plattsburg, 16 N. Y. 158; Morey v. Newfane, 8 Barb. 645; Browning. Springfield, 17 Ill. 143; Hyatt e. Rondout, 44 Barb. 385; Lloyd . Mayor, &c. of New York, 5 N. Y. 369; Rusch v. Davenport, 6 Iowa, 433. And see Dillon, Mun. Corp. c. 18, and the cases cited in the preceding note. The cases of Weet v. Brockport, and Hickok v. Plattsburg, were criticised by Mr. Justice Marvin, in the case of Peck v. Batavia, 32 Barb. 634, where, as well as in Cole v. Medina, 27 Barb. 218, he held that a village merely authorized to make and repair sidewalks, but not in terms absolutely and imperatively required to do so, had a discretion conferred upon it in respect to such walks, and was not responsible for a refusal to enact ordinances or by-laws in relation thereto; nor, if it enacted such ordinances or by-laws was it liable for damages arising from a neglect to enforce them. The doctrine that a power thus conferred is discretionary does not seem consistent with the ruling in some of the other cases cited, and is criticised in Hyatt v. Rondout, 44 Barb. 392. But see ante, p. *208 and note. Calling public meetings for political or philanthropic purposes is no part of the business of a municipal corporation, and it is not liable to one who, in lawfully passing by where the meeting is held, is injured by the discharge of a cannon fired by persons concerned in the meeting. Boyland r. Mayor, &c. of New York, 1 Sandf. 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.1 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; Dewey v. City of Detroit, 15 Mich. 309; Garrison v. New York, 5 Bosw. 497; McGinity v. Mayor, &c. of New York, 5 Duer, 674; Decatur v. Fisher, 53 Ill. 407; Chicago v. McCarthy, 75 Ill. 602; Requa v. Rochester, 45 N. Y. 129; Hume v. New York, 47 N. Y. 639; Springfield v. Doyle, 76 il 202; Rosenburg v. Des Moines, 4 Iowa, 415. 2 Alexander v. Mt. Sterling, 7 Ill. 366. 8 3 Hill, 531; s. c. in error, Denio, 433. |