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* 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, 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

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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.

· 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. 2 3 Hill, 531; 2 Denio, 433.

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prosecuting the work in question, and therefore are not responsible for the conduct of those necessarily employed by them for that purpose,” says:

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. 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 dis

tinguishing 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, 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.


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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.” 1

In Stoors v. City of Utica, 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 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 held 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.

2 17 N. Y. 104.

39 Mich. 165. Compare Mills v. Brooklyn, 32 N. Y. 489; Jones v. New Haven, 34 Conn. 1.


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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

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