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not so much to the nature and character of the various powers conferred, as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or municipal character. But, if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quo ad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been con· ferred.1
“Suppose the legislature, instead of the franchise in question, had conferred upon the defendants' banking powers, or a charter for a railroad leading into the city, in the usual manner in which such powers are conferred upon private companies, could it be doubted that they would hold them in the same character, and be subject to the same duties and liabilities ? It cannot be doubted but they would. These powers, in the eye of the law, would be entirely distinct and separate from those appertaining to the defendants as a municipal body. So far as related to the charter thus conferred, they would be regarded as a private company, and be subject to the responsibilities attaching to that class of institutions. The distinction is well stated by the Master of the Rolls, in Moodalay v. East India Co., in answer to an objection made by counsel. There the plaintiff had taken a lease from the company, granting him permission to supply the inhabitants of Madras with tobacco for ten years. Before the expiration of that period, the company dispossessed him, and granted the privilege to another. The plaintiff, preparatory to bringing an action against the company, filed a bill of discovery. One of the objections * taken by [* 252] the defendant was, that the removal of the plaintiff was incident to their character as a sovereign power, the exercise of which could not be questioned in a bill or suit at law. The Master of the Rolls admitted that no suit would lie against a sovereign power for any thing done in that capacity; but he denied that the
| Dartmouth College 0. Woodward, 4 Wheat. 668, 672; Phillips v. Bury, 1 Ld. Raym. 8; 2 T. R. 352, s. C.; Allen v. McKeen, 1 Sumn. 297; People v. Morris, 13 Wend. 331-338; 2 Kent's Com. 275 (4th ed.); United States Bank v. Planters Bank, 9 Wheat. 907; Clark v. Corp. of Washington, 12 ib. 40; Moodalay v. East India Co., 1 Brown's Ch. R. 469. 1 Brown's Ch. R. 469.
defendants came within the rule. They have rights,' he observed, as a sovereign power; they have also duties as individuals ; if they enter into bonds in India, the sums secured may be recovered here. So in this case, as a private company, they have entered into a private contract, to which they must be liable. It is upon the like distinction that municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers, and dealt with accordingly. As such, they are bound to repair bridges, highways, and churches; are liable to poor rates; and, in a word, to the discharge of any other duty or obligation to which an individual owner would be subject.” ]
In Stoors v. City of Utica,2 it was held that a city, owing to the public the duty of keeping its streets in a safe condition for travel, was liable to persons receiving injury from the neglect to keep proper lights and guards at night around an excavation which had been made for the construction of a sewer, notwithstanding it had contracted for all proper precautions with the persons executing the work. And in the City of Detroit v. Corey : the corporation
v 3 was held liable in a similar case, notwithstanding the work was required by the charter to be let to the lowest bidder. Manning, J., in speaking to the point whether the contractors were to be considered as the agents of the city, so that the maxim respondeat
superior should apply, says: “It is to be observed that [* 253] the * power under which they acted, and which made that
lawful which would otherwise have been unlawful, was not
| 2 Inst. 703 ; Thursfield v. Jones, Sir T. Jones, 187; Rex v. Gardner, Cowp. 79; Mayor of Lyme v. Turner, ib. 87; Henley v. Mayor of Lyme, 5 Bing. 91; 1 Bing. N. C. 222, s. c. in House of Lords. See, also, Lloyd v. Mayor, &c., of New York, 5 N. Y. 369; Commissioners v. Duckett, 20 Md. 468.
The corporation of the city of New York possesses two kinds of powers, one governmental and public, and, to the extent they are held and exercised, is clothed with sovereignty; the other private, and, to the extent they are beld and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a municipal government, and while in the exercise of the latter is a corporate, legal individual.” Ibid. per Foot, J. See upon this point also, Western Fund Savings Society v. Philadelphia, 31 Penn. St. 175; Louisville v. Commonwealth, 1 Duvall, 295; People v. Common Council of Detroit, 27 Mich. ante 230 and note.
? 17 N. Y. 104.
39 Mich. 165. Compare Mills v. Brooklyn, 32 N. Y. 489; Jones v. New Haven, 34 Conn. 1.
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.
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 III. 476 ; Blake v. St. Louis, 40 Mo. 569; Baltimore v. Pendleton, 15 Md. 12; St. Paul v. Leitz, 3 Minn. 297. For further illustration of the rules of liability to which municipal corporations are subject for the negligent discharge of corporate duties, or the improper construction of corporate works, see Wallace v. Muscatine, 4 Greene (Iowa), 373; Creal v. Keokuk, ib. 47; Cotes v. Davenport, 9 Iowa, 227; Mayor v. Sheffield, 4 Wal. 189; Child v. Boston, 4 Allen, 41; Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, ib. 172; Munn v. Pittsburgh, 40 Penn. St. 364; Pekin v. Newell, 26 Ill. 320; Weightman v. Washington, 1 (* 254] * We have not deemed it important, in considering 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 questions are generally questions between the corporators and the State, with which private individuals are regarded as having 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.”
Black, 39; Kavanaugh v. Brooklyn, 38 Barb. 232; Wendell v. Troy, 39 Barb. 329; Mills r. Brooklyn, 32 N. Y. 489; Stein v. Burden, 24 Ala. 130; City of Providence v. Clapp, 17 How. 161; Champaign v. Patterson, 50 III. 62; Ross 0. Madison, 1 Ind. 281; Mayor, &c., of New York v. Bailey, 2 Denio, 433; Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Wheeler v. City of Worcester, 10 Allen, 591; Burnham v. Boston, ib. 290 ; Boon v. City of Utica, 2 Barb. 104; Martin v. Mayor, &c., of Brooklyn, 1 Hill, 545; Howell v. Buffalo, 15 N. Y. 512; Lacour v. Mayor, &c., of New York, 3 Duer, 406; Pittsburgh v. Grier, 22 Penn. St. 54; Erie City v. Schwingle, ib. 384; and the numerous cases collected and classified in Dillon on Municipal Corporations. A municipal corpoporation is not liable for neglect to devise and construct a proper system of drainage. Carr v. Northern Liberties, 35 Penn. St. 324. See ante, 208, and note. Cities are not liable for the careless conduct of officials in the discharge of duty. Dillon, $$ 774 to 778, and cases cited.
· 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 o. Jacksonville, 50 III. 39.
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 inquire 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 offices by State authority, 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, 27 Mich. Nor in respect to powers not purely local. People v. Springwells, 25 Mich. 153.