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 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. 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

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 Ill. 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.

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, 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 Ill. 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.

1 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

* But if the ground of the action is the omission by the [* 249] 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

In regard to all those powers which are conferred upon the corporation, not for the benefit of the general public, but of the corporators, as 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 be let to the lowest responsible bidder.

In Bailey v. Mayor, &c., of New York,2 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 for the misconduct of those necessarily appointed by them, it was insisted [* 250] 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

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. 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 v. Mayor, &c., of New York, 1 Sandf. 27.

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; Requa v. Rochester, 45 N. Y. 129; Hume v. New York, 47 N. Y. 639.

23 Hill, 531; 2 Denio, 433.

prosecuting the work in question, and therefore are not responsible for the conduct of those necessarily employed by them for that purpose," says: "We admit, if the defendants are to be regarded as occupying this relation, and are not chargeable with any want of diligence in the selection of agents, the conclusion contended for would seem to follow. They would then be entitled to all the immunities of public officers charged with a duty which, from its nature, could not be executed, without availing themselves of the services of others; and the doctrine of respondeat superior does not apply to such cases. If a public officer authorize the doing of an act not within the scope of his authority, or if he be guilty of negligence in the discharge of duties to be performed by himself, he will be held responsible; but not for the misconduct or malfeasance of such persons as he is obliged to employ. But this view cannot be maintained on the facts before us. The powers conferred by the several acts of the legislature, authorizing the execution of this great work, are not, strictly and legally speaking, conferred for the benefit of the public; the grant is a special, private franchise, made as well for the private emolument and advantage of the city as for public good. The State, in its sovereign character, has no interest in it. It owns no part of the work. The whole investment, under the law, and the revenue and profits to be derived therefrom, are a part of the private property of the city, as much so as the lands and houses belonging to it situate within its corporate limits.

"The argument of the defendants' counsel confounds the powers in question with those belonging to the defendants in their character as a municipal or public body,—such as are granted exclusively for public purposes to counties, cities, towns, and villages, where the corporations have, if I may so speak, no private estate or interest in the grant.

"As the powers in question have been conferred upon one of these public corporations, thus blending, in a measure, those conferred for private advantage and emolument with those already

possessed for public purposes, there is some difficulty, J [*251] * admit, in separating them in the mind, and properly distinguishing the one class from the other, so as to distribute the responsibility attaching to the exercise of each.

"But the distinction is quite clear and well settled, and the process of separation practicable. To this end, regard should be had,