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and defend by themselves ; but, if parties, such a right was necessary and indispensable. Of course this privilege has been and may be exercised.
“ Our statute providing for the collection of taxes enacts that the treasurer of the State shall direct his warrant to the collectors of the State tax in the several towns. If neither this nor the further proceedings against the collectors and the selectmen authorized by the statute shall enforce the collection of the tax, the law directs that then the treasurer shall issue his execution against the inhabitants of such town. Such an execution may be levied upon the estate of the inhabitants; and this provision of the law was not considered as introducing a new principle, or enforcing a novel remedy, but as being only in conformity with the well-known usage in other cases.
The levy of an execution under this statute produced the case of Beers v. Botsford. There the execution, which had been issued against the town of Newtown by the treasurer of the State, had been levied upon the property of the plaintiff, an inhabitant of that town, and he had thus been compelled to pay the balance of a State tax due from the town. He sued the town of Newtown for the recovery of the money so paid by him. The most distinguished professional gentlemen in the State were engaged as counsel in that case ; and it did not occur, either to them or to the court, that the plaintiff's property had been taken without right: on the contrary, the case proceeded throughout on the conceded principle of our common law, that the levy was properly made upon the estate of the plaintiff. And without this the plaintiff could not have recovered of the town, but must have resorted to his action against the officer for his illegal and void levy. In Fuller v. Hampton, Peters, J., remarked that, if costs are recovered against a town, the writ of execution to collect them must have been issued against the property of the inhabitants of the town; and this is the invariable practice. The case of Atwater v. Woodbridge 4 also grew out of this ancient usage. The ecclesiastical society of Bethany had been taxed by the town of Woodbridge for its moneys at interest, and the warrant for the collection of the tax had been levied upon the property of the plaintiff, and the tax had thus been collected of him, who was an inhabitant of the located
3 5 Conn. 417.
3 Day, 159.
society of Bethany. Brainerd, J., who drew up the * opin- [* 246] ion of the court, referring to this proceeding, said: “This practice, with regard to towns, has prevailed in New England, so far as I have been able to investigate the subject, from an early period, - from its first settlement, - a practice brought by our
, forefathers from England, which had there obtained in corporations similar to the towns incorporated in New England.' It will here be seen that the principle is considered as applicable to territorial societies as to towns, because the object to be obtained was the same in both, — that the town or society should be brought to a
• sense of duty, and make provision for payment and indemnity; a very good reason, and very applicable to the case we are considering.
“ 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
| 10 Conn. 390–395.
· Beardsley v. Smith, 16 Conn. 375, citing 2 Kent, 221 ; Angell and 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 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.
it. Nor has any usage, so far as we are aware, grown up in any
of the newer States, like that which had so early an origin [* 247] in New England. * More just, convenient, and inexpen
sive 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 hy 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 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.
1 Mower v. Leicester, 9 Mass. 250; Bartlett v. Crozier, 17 Johns. 439; Farnum v. Concord, 2 N. H. 392 ; Adams v. Wiscasset Bank, 1 Greenl. 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 v. Newfane, 8 Barb. 645; Lorillard v. 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, 1 Vroom, 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 III. 346; Sutton v. Board, 41 Miss. 236; Cooley v. Freeholders, 3 Dutch. 415. 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
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 grant of the [* 248] corporate franchise, in these cases, is usually 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 this implied contract, made with the sovereign power, enures to the benefit of every individual interested in its performance. In this respect
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.
i 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 III. 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, ib. 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. Corey, 9 Mich. 165; Rusch v. Davenport, 6 Iowa, 443; Commissioners v. Duckett, 20 Md. 468; Covington v. Bryant, 7 Bush, 248; Weightman v. Washington, 1 Black, 41; Chicago v. Robbins, 2 Black, 418; Nebraska v. Campbell, ib. 590. In the recent case of Detroit v. Blackeby, 21 Mich. 84, this whole subject is considered
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 to contract by the acceptance for the performance of these 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. And a similar liability would exist in other cases where the same reasons would be applicable.
at length; and the court (one judge dissenting) deny the soundness of the principle stated in the text, and hold that municipal corporations existing under special charters are not liable to individuals for injuries caused by neglect to perform corporate duties, unless expressly made so by statute. This case is referred to and dissented from in Waltham v. Kemper, 55 III. 347. In Murtaugh v. St. Louis, 44 Mo. 480, Currier, J., says: “The general result of the adjudications seems to be this: When the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable, as in the case of private corporations 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. 469; Stewart v. New Orleans, 9 La. An. 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.
Weet v. Brockport, 16 N. Y. 161, note; Hickok v. Plattsburg, ib. 158; Morey v. Newfane, 8 Barb. 645 ; Browning v. Springfield, 17 Ill. 143; Hyatt v. Rondout, 44 Barb. 385; Lloyd v. Mayor, &c., of New York, 5 N. Y. 369; Rusch v. Davenport, 6 Iowa, 443. 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