1. A municipal corporation in the exercise of its duties is a
department of the state. Its powers may be large or small; they may
be increased or diminished from time to time at the pleasure of the
state, or the state may itself directly exercise in any locality
all the powers usually conferred upon such a corporation. Such
changes do not alter its fundamental character.
2. The statement that a municipality acts only through its
agents does not mean that it so acts through subordinate agents
only. It may act through its mayor or its common council, its
superintendent of streets, or its board of public works.
3. Whether the persons thus acting are appointed by the governor
or president or are elected by the people does not affect the
question whether they are or are not parts of the corporation and
its agents. Nor is it important on that question from what source
they receive their compensation.
4. The Act of Congress of Feb. 21, 1871, 16 Stat. 419, creates a
"municipal corporation" called "The District of Columbia." It
provides for the appointment of an executive officer called a
governor, and for a legislative assembly. It creates a board of
public works, which is invested with the entire control of the
streets of the District, their regulation and repair; and is
composed of the governor of the District and four other persons
appointed by the President of the United States, by and with the
advice and consent of the Senate, to hold their offices for the
term of four years unless sooner removed by the President. The
board is empowered to disburse all moneys appropriated by Congress
or the District or collected from propertyholders in pursuance of
law, for the improvement of streets, avenues, &c., and is
required to make a report to the legislative assembly of the
District and to the governor, who is directed to lay the same
before the President for transmission to Congress.
Held
that the board of public works is not an independent body acting
for itself, but is a part of the municipal corporation, and that
the District of Columbia is responsible to an individual who has
suffered injury from the defective and negligent condition of its
streets.
Held further that a municipal corporation,
holding a voluntary charter as a city or village, is responsible
for its mere negligence in the care and management
Page 91 U. S. 541
of its streets. In this respect, there is a distinction between
the liability of such a corporation and that of a
quasi-corporation like a county, town, or district.
Whether or not this distinction is founded on sound principle, it
is too well settled to be disturbed.
This is an action to recover damages for a personal injury
received by the plaintiff on the 14th of October, 1871, in
consequence of the defective condition of one of the streets of the
City of Washington. The accident occurred on K Street east, and
arose from the construction of the Baltimore & Potomac Railroad
through that street. The road was built by permission of the
corporation, and authority was given to the company to change the
grade of the streets according to a plan filed. In making this
change, a deep pit or excavation was made, into which the plaintiff
fell. The questions touching the plaintiff's injury, the defective
condition of the street, and the negligence of those having it in
charge were submitted to the jury, and the issue upon each of them
was found in favor of the plaintiff. The verdict of the jury, by
which they awarded to him the sum of three thousand five hundred
dollars as damages, besides his costs, and the judgment thereon,
were set aside at the general term of the Supreme Court of the
District, and judgment was ordered in favor of the defendant. From
this judgment the present writ of error was brought.
Page 91 U. S. 543
MR. JUSTICE HUNT delivered the opinion of the Court.
The municipal corporation "The District of Columbia" was
organized under the Act of Congress of Feb. 21, 1871, 16 Stat.
419.
The first section of the act creates a municipal corporation by
the name of "The District of Columbia," with power to sue, be sued,
contract, have a seal, and "exercise all other powers of a
municipal corporation, not inconsistent with the laws and
Constitution of the United States and the provisions of this
act."
By sec. 2, the executive power is vested in a governor, to be
appointed by the President with the consent of the Senate and to
hold his office for four years. Bills passed by the council and
house of delegates were to be presented to him for approval or
rejection.
A Secretary of the District is also provided for, whose duties
are specified. The legislative power in the District is vested in
two bodies -- a council and house of delegates -- called a
legislative assembly, which power it was in the eighteenth
section
Page 91 U. S. 544
declared should "extend to all rightful subjects of legislation
within said District, consistent with the Constitution of the
United States and the provisions of this act."
It is enacted that the President, with the consent of the
Senate, shall appoint a board of health, consisting of five
persons, whose duties are pointed out. The salaries of the governor
and secretary are prescribed and are to be paid "at the Treasury of
the United States." The salaries of the members of the legislative
assembly are prescribed, but it is not declared where or how or by
whom they shall be paid unless they are included in the general
terms of sec. 38.
By the thirty-seventh section it is provided that there shall be
a
"board of public works, to consist of the governor and four
other persons to be appointed by the President, with the consent of
the Senate, who shall have entire control of and make all
regulations which they shall deem necessary for keeping in repair
the streets, avenues, and alleys and sewers of the city, and all
other works which may be entrusted to their charge by the
legislative assembly or Congress."
They are also required to disburse the money collected for such
purposes, and to make an annual report of their proceedings to the
legislative assembly, and to furnish a duplicate of the same to the
governor.
The charters of the Cities of Washington and Georgetown are
declared to be repealed, except that they are continued in force
for certain specified purposes not necessary to be here
considered.
The statute creating this corporation, in its first section,
declares it to be a body corporate, not only with power to
contract, to sue and be sued, and to have a seal, but also that it
is a body corporate for municipal purposes, and that it shall
exercise all other powers of a municipal corporation not
inconsistent with the Constitution and laws of the United States
and the provisions of this act.
A municipal corporation, in the exercise of all of its duties,
including those most strictly local or internal, is but a
department of the state. The legislature may give it all the powers
such a being is capable of receiving, making it a miniature state
within its locality. Again, it may strip it of every power, leaving
it a corporation in name only, and it may create and
Page 91 U. S. 545
recreate these changes as often as it chooses, or it may itself
exercise directly within the locality any or all the powers usually
committed to a municipality. We do not regard its acts as sometimes
those of an agency of the state and at others those of a
municipality, but that, its character and nature remaining at all
times the same, it is great or small according as the legislature
shall extend or contract the sphere of its action.
In his work on Municipal Corporations (sec. 835), Judge Dillon
says,
"As the highway of a state, including streets in cities, are
under the paramount and primary control of the legislature, and as
all municipal powers are derived from the legislature, it follows
that the authority of municipalities over streets, and the uses to
which they may be put, depends entirely upon their charter or
legislative enactments applicable to them. It is usual in this
country for the legislature to confer upon municipal corporations
very extensive powers in respect to streets and public ways within
their limits, and the uses to which they may be appropriated. The
authority to open, care for, regulate, and improve streets, taken
in connection with the other powers usually granted, give to
municipal corporations all needed authority to keep the streets
free from obstructions and to prevent improper uses, and to ordain
ordinances to this end."
A corporation can act only by its agents or servants. This
obvious truth does not imply that the acts must be done by inferior
or subordinate agents, but, on the contrary, the higher the
authority of the agent, the more evident is the responsibility of
the principal. While a state may be represented in various ways, no
one will doubt that its act, when declared through the means of its
legislature or its governor within their respective spheres, is
more emphatically obligatory upon it than when made known through
its inferior departments.
A municipal corporation may act through its mayor, through its
common council, or its legislative department by whatever name
called, its superintendent of streets, commissioner of highways, or
board of public works, provided the act is within the province
committed to its charge. Nor can it in principle be of the
slightest consequence by what means these several officers are
placed in their position -- whether they are elected by
Page 91 U. S. 546
the people of the municipality or appointed by the President or
a governor. The people are the recognized source of all authority,
state and municipal, and to this authority it must come at last,
whether immediately or by a circuitous process.
An elected mayor or an appointed mayor derives his authority to
act from the same source -- to-wit that of the legislature. The
whole municipal authority emanates from the legislature. Its
legislative charter indicates its extent and regulates the
distribution of its powers as well as the manner of selecting and
compensating its agents. The judges of the Supreme Court of a state
may be appointed by the governor with the consent of the senate or
they may be elected by the people. But the powers and duties of the
judges are not affected by the manner of their selection. The mayor
of a city may be elected by the people or he may be appointed by
the governor with the consent of the senate; but the slightest
reflecting will show that the powers of this officer, his position
as the chief agent and representative of the city, are the same
under either mode of appointment. Whether his act in a case in
question is the Act of and binding on the city depends upon his
powers under the charter to act for the city and whether he has
acted in pursuance of them, not at all upon the manner of his
election. It is equally unimportant from what source he receives
compensation or whether he serves without it.
When the question is whether an individual is acting for himself
or for another, the inquiry whether that other directed him to do
the work and controlled its performance and whether he promised to
pay him for his service may be important in determining that
question. In a case like the one before us, where all the actors
are in some form under the same authority, where all are created by
the same legislature, and it is a question of the distribution of
conceded power, these suggestions are unimportant.
Nor are these by any means conclusive considerations in any
case. A striking instance to the contrary is found in the case of
The China, 7
Wall. 53. It is there held that although the master of the vessel
is bound to take a pilot on board his vessel, and bound to take the
first one offering his services, the owners are responsible for a
collision caused by the negligence of the pilot thus in charge of
the vessel.
Page 91 U. S. 547
In the case of the municipal corporation before us, we have no
doubt that the governor and the legislative department are equally
representatives and agents of that body, unaffected by the
circumstance that the one is appointed by the President and the
others are elected by the people, or that the one is paid from one
source and the others from another source. They are severally
members and parts of a municipal corporation whose charter emanates
from the Congress of the United States and by which their powers
and authority are conferred or defined.
Whether the board of public works is also a part of and an
agency of the municipal corporation is the question before us.
1. The authorities state, and our own knowledge is to the
effect, that the care and superintendence of streets, alleys, and
highways, the regulation of grades, and the opening of new and
closing of old streets, are peculiarly municipal duties. No other
power can so wisely and judiciously control this subject as the
authority of the immediate locality where the work is to be done.
Accordingly, although complaints are often made of corruption and
venality, as they are indeed of all public functionaries, and
attempts made to substitute other agencies, the general judgment of
the country has always accepted the municipal organization as the
one subject to the least objection for the execution of this duty.
In inquiring, therefore, where this power was vested in a
particular case, we should expect to find that it was given to the
municipality.
2. The Act of Congress of Feb. 21, 1871, is entitled "An Act to
provide a government for the District of Columbia," and its
intention is to accomplish that end by the means of a municipal
corporation called "The District of Columbia." The powers given to
it are to contract, sue and be sued, to have a seal, and all other
powers of a municipal corporation, not inconsistent with the
constitution and laws of the United States or the provisions of
this act. The powers thus given are to be exercised by the means
and agencies in the act specified, and unless these means and
agencies do represent the corporation, it has nothing and does
nothing. It is a nonentity. The first of these is the existence of
a governor, who is invested with the executive power in and over
the District of Columbia. This
Page 91 U. S. 548
office is a large type of a mayoralty, and his acts or
declarations, or notices or services upon him, within the sphere of
executive authority are those of or upon the municipal
corporation.
The legislative assembly also is a large edition of a common
council, and is the especial power and organ of the municipality in
regulating its ordinary business and affairs.
The thirty-seventh section defines and locates the power to
regulate and repair the streets and highways of the District of
Columbia. The persons there referred to are invested with the
entire control of the streets, their regulation and repair. It is
declared that there shall be "a board of public works," of whom the
chief agent of the city corporation --
viz., the governor
-- shall be one, and four other persons to be nominated by the
President, and to this board is given the power specified. The full
text of the section is as follows:
"
BOARD OF PUBLIC WORKS"
"SEC. 37.
And be it further enacted that there shall be
in the District of Columbia a board of public works, to consist of
the governor, who shall be president of said board; four persons,
to be appointed by the President of the United States, by and with
the advice and consent of the Senate, one of whom shall be a civil
engineer, and the others citizens and residents of the District,
having the qualifications of an elector therein. One of said board
shall be a citizen and resident of Georgetown, and one of said
board shall be a citizen and resident of the county outside of the
Cities of Washington and Georgetown. They shall hold office for the
term of four years unless sooner removed by the President of the
United States. The board of public works shall have entire control
of and make all regulations which they shall deem necessary for
keeping in repair the streets, avenues, alleys, and sewers of the
city, and all other works which may be entrusted to their charge by
the legislative assembly or Congress."
"They shall disburse upon their warrant all moneys appropriated
by the United States or the District of Columbia or collected from
propertyholders in pursuance of law for the improvement of streets,
avenues, alleys and sewers, and roads and bridges, and shall
assess, in such manner as shall be prescribed by law, upon the
property adjoining and to be specially benefited by the
improvements authorized by law and made by them, a reasonable
proportion of
Page 91 U. S. 549
the cost of the improvement not exceeding one-third of such
cost, which sum shall be collected as all other taxes are
collected."
"They shall make all necessary regulations respecting the
construction of private buildings in the District of Columbia,
subject to the supervision of the legislative assembly."
"All contracts made by the said board of public works shall be
in writing and shall be signed by the parties making the same, and
a copy thereof shall be filed in the office of the Secretary of the
District, and said board of public works shall have no power to
make contracts to bind said District to the payment of any sums of
money except in pursuance of appropriations made by law, and not
until such appropriations shall have been made. All contracts made
by said board in which any member of said board shall be personally
interested shall be void, and no payment shall be made thereon by
said District or any officers thereof. On or before the first
Monday in November of each year, they shall submit to each branch
of the legislative assembly a report of their transactions during
the preceding year, and also furnish duplicates of the same to the
governor, to be by him laid before the President of the United
States for transmission to the two Houses of Congress; and shall be
paid the sum of two thousand five hundred dollars each
annually."
1. The four persons composing this board are nominated by the
President, and hold their offices for a fixed period of time. They
cannot be removed except by the President of the United States. The
same thing is true of the governor and of the secretary of the
District, except that as to them there is no power of removal. Each
is appointed in the same manner, and holds until the expiration of
his term and until his successor is qualified. The same is true
also of the members of the council, except that their term is of
shorter duration. It is true also, in relation to the house of
delegates, except that they are elected by the people, and hold
their offices for a fixed term of one year. We have already
endeavored to show that it is quite immaterial, on the question
whether this board is a municipal agency, from what source the
power comes to these officers -- whether by appointment of the
President or by the legislative assembly or by election.
2. This board is invested with the entire control and regulation
of the repair of streets and alleys, and all other works which may
be entrusted to their charge by the legislative assembly
Page 91 U. S. 550
or Congress. They shall disburse all the money appropriated by
the legislative assembly or by Congress, or collected from
propertyholders for the improvement of streets and alleys.
It is to be noticed here that the municipal corporation, as
represented by the legislative assembly, may impose upon this board
such other duties as they think proper. The board is to perform
"all other work entrusted to their charge by the legislative
assembly or Congress." In this respect, certainly, it is not an
independent body. It is subject to two masters, either of whom may
impose upon it any other work it may choose, and which work it is
bound to perform. Its dependence upon Congress and upon the
legislative assembly in this respect rests upon the same basis. It
will not be claimed by anyone that it is not subject to the control
of Congress and dependent upon that body.
3. The board shall disburse all moneys appropriated by the
United States or the District of Columbia, or collected from
propertyholders, for improvements of streets or alleys. In doing
the two acts here first specified, the board again acts as the hand
and agent of the United States or of the District, as the case may
be.
4. On or before the first Monday of each year, the board is
required to make a report of their transactions during the
preceding year to each branch of the legislative assembly and also
to the President, to be placed before Congress by him. This duty is
also an indication of their subordination equally to Congress and
to the legislative assembly. The powers given to this board are not
of a character belonging to independent officers, but rather those
which indicate that it is the representative of the municipal
corporation.
Notwithstanding these features, and notwithstanding we find this
power given by the act which creates the municipality, and that
this is one of the powers ordinarily belonging to a municipal
government, and although the manner of its bestowal and the
selection of the agents who exercise it are similar to that of the
other appointees and agents of the municipal corporation, it is
still contended that no liability exists on the part of the
corporation to compensate the plaintiff for his injuries.
Page 91 U. S. 551
It is denied that a municipal corporation (as distinguished from
a corporation organized for private gain) is liable for the injury
to an individual arising from negligence in the construction of a
work authorized by it. Some cases hold that the adoption of a plan
of such a work is a judicial act, and, if injury arises from the
mere execution of that plan, no liability exists.
Child v. City
of Boston, 4 Allen 41;
Thayer v. Boston, 19 Pick.
511. Other cases hold that for its negligent execution of a plan
good in itself, or for mere negligence in the care of its streets
or other works, a municipal corporation cannot be charged.
City
of Detroit v. Blackely, 21 Mich. 84, is of the latter class,
where it was held that the city was not liable for an injury
arising from its neglect to keep its sidewalks in repair.
The authorities establishing the contrary doctrine that a city
is responsible for its mere negligence are so numerous and so well
considered that the law must be deemed to be settled in accordance
with them.
English Authorities --
Mayor v.
Henley, 2 Cl. & Fin. 331;
Mersey Docks v. Gibbs; Same
v. Penhallow, 1 H.Ld.Cas.N.S. 93; 1 H. & N. 439;
Lan.
Canal Co. v. Parnably, 11 Ad. & Ell. 223;
Scott v.
Mayor, 37 Eng.Law & Eq. 465.
United States
Authorities --
Weightman v. Washington, 1 Bl. 39;
Nebraska v. Campbell, 2
id. 590;
Robbins v.
Chicago, 4 Wall. 658;
Supervisors v. United
States, 4 Wall. 435;
Mayor
v. Sheffield, 4 Wall. 194.
New York --
Davenport v. Ruckman, 37 N.Y. 568;
Requa v.
Rochester, 45
id. 129;
Rochester W. L. Co. v.
Rochester, 3
id. 463;
Conrad v. Ithaca, 16
id. 158;
Barton v. Syracuse, 36
id. 54.
Illinois --
Browning v. City of Springfield, 17
Ill. 143;
Claybury v. City of Chicago, 25
id.
535;
City of Springfield v. Le Claire, 49
id.
476.
Alabama --
Smoot v. Mayor of Wecumpka, 24
Ala.N.S. 112.
Connecticut --
Jones v. City of New
Haven, 34 Conn. 1.
North Carolina --
Meares v.
Wilmington, 9 Ired. 73.
Maryland --
County
Commissioners of Anne Arundel County v. Duckett, 20 Md. 468.
Pennsylvania --
Pittsburg City v. Grier, 22 Penn.
54;
Erie City v. Schwingle, id., 388.
Wisconsin
--
Cook v. City of Milwaukee, 24 Wis. 270;
Ward v.
Jefferson, id., 342.
Virginia --
Sawyer v.
Corse, 17 Gratt. 241;
City of Richmond v. Long, id.,
375.
Ohio --
Western College v. Cleveland, 12
Ohio N.S. 377;
McCombs v. Akron, 15
id. 476;
Rhodes v. Cleveland, 10
id. 159.
Page 91 U. S. 552
And here a distinction is to be noted between the liability of a
municipal corporation, made such by acceptance of a village or city
charter, and the involuntary
quasi-corporations known as
counties, towns, school districts, and especially the townships of
New England. The liability of the former is greater than that of
the latter, even when invested with corporate capacity and the
power of taxation. 1 Dillon, secs. 10, 11, 13; 2
id., sec.
761.
The latter are auxiliaries of the state merely, and, when
corporations, are of the very lowest grade, and invested with the
smallest amount of power. Accordingly, in
Conrad v.
Ithaca, 16 N.Y. 158, the village was held to be liable for the
negligence of their trustees, while in
Weet v. Brockport,
the town was said not to be liable for the same acts by their
commissioners of highways.
Id., 163, 4, 9.
See
Brooke's Abridgment, "Action on the Case;"
Russell v. Men of
Devon, 2 T.R. 308, and cases there cited; 16 N.Y.,
supra.
Whether this distinction is based upon sound principle or not,
it is so well settled that it cannot be disturbed. Decisions or
analogies derived from this source are of little value in fixing
the liability of a city or a village.
See Dillon,
supra.
Again, it is contended that the board of public works of the
District of Columbia is an independent body, acting for itself, not
forming a part of the corporation, and that the corporation is not
responsible for its acts. We have analyzed the power of this body
in a previous part of this opinion, and have set out in full the
language of the thirty-seventh section.
Upon this point also we are able to derive assistance from the
adjudged cases.
The case of
Bailey v. Mayor, in the Supreme Court of
New York, 3 Hill 531, and again in the Court of Errors, 2 Den. 431,
is a leading authority upon this question. In the year 1834, the
Legislature of the State of New York passed an act "to provide for
supplying the City of New York with pure and wholesome water."
Sess.Laws 1834, p. 531. The act provided that the governor should
appoint five persons, to be known as water commissioners, whose
duty it was made to examine all matters relative to that subject
(sec. 2); to employ such engineers as they should deem necessary
(sec. 3); to adopt such
Page 91 U. S. 553
plan as they should deem most advantageous for procuring such
supply of water; to ascertain the amount of money needed for the
purpose; and to make conditional contracts for the purchase of
lands required, subject to the ratification of the common council
of New York (sec. 4). The plan, the estimate of the expense, the
conditional contracts, and all other matters connected therewith,
were to be presented by the commissioners to the common council of
New York (secs. 5, 6), who were directed to submit the plan to the
electors of New York for their rejection or approval (sec. 7). If
approved, the council were to direct the commissioners to proceed
with the work; and the council was authorized to raise by loan
$2,500,000, which money was to be applied to the purposes of the
act "by or under the direction of the commissioners" (sec. 11). The
commissioners were authorized to enter upon lands, agree for their
purchase or take measures for their condemnation (secs. 12-14), and
to use the ground or soil under any street or highway within the
state for the purpose of introducing the water (sec. 15). The
commissioners were authorized to draw on the city comptroller for
all sums due for the purchase of lands, and sums due to
contractors, and for their own incidental expenses; and the
payments were required to be reported to the council once in every
six months.
Under this statute, a plan was prepared and approved by the
citizens of New York, money was raised, and the work was entered
upon. It was proved that the commissioners entered into a contract
with Crandall & Van Zandt for building a dam across the Croton
River, which was about forty miles from the City of New York, and
in another county, in pursuance of the plan adopted. The plaintiff
offered also to prove that it was so negligently and carelessly
constructed, that upon the occurrence of a freshet in 1841 it was
swept away, and the property of the plaintiff, real and personal,
situate on both sides of the river below the dam, was destroyed to
the value of $60,000. The circuit judge rejected the evidence, and
directed the plaintiff to be nonsuited. The case was carried to the
Supreme Court, where the nonsuit was set aside. The judgment was
delivered by Nelson, C.J., whose opinion opens in these words:
"The principal ground taken at the circuit against this action,
and
Page 91 U. S. 554
the one upon which it was understood the cause there turned, was
that the defendants were not chargeable for negligence or
unskillfulness in the construction of the dam in question, inasmuch
as the water commissioners were not appointed by them, nor subject
to their direction or control."
The learned judge repudiates the argument arising from the fact
that the commissioners were appointed by the state; that the
defendants had no control over their actions; that they were bound
to employ them, and submit to the independent exercise of their
control. He held that the commissioners were the agents of the
city, and that the latter was responsible for their negligent
conduct.
The case was then carried to the Court of Errors of the State of
New York, 2 Den. 433, where the judgment of the Supreme Court was
affirmed. Chancellor Walworth bases his opinion of affirmance
chiefly upon the fact that the city was the owner of the land on
which the dam was built, and therefore liable for the negligent
conduct of those who built it. Senators Hand, Bockee, and Barlow
base their judgments of affirmance on the ground that the
commissioners were the agents of the city. Garder,
lieutenant-governor, delivered an able dissenting opinion.
This case is nearer to the one we are considering than any other
reported in the books. The struggle in the New York courts was
between the dictates of that evident justice and good sense which
required that the city should indemnify a sufferer for the loss
arising from the acts of those doing a work under its authority and
for its benefit, and the technical rule which exempted it from
liability for acts of officers not under its control or appointed
by it.
If these courts had had before them the additional facts which
exist in this case -- to-wit that in the very statute which made
the City of New York a municipal corporation these persons had been
appointed to do everything necessary to be done respecting the care
and improvement of the streets, being invested with their exclusive
control; that without that body, and two other equally independent
bodies, to-wit the mayor and the legislative assembly, neither of
them being declared in words to be part of the municipal body, the
municipal corporation had no one part of an organized existence --
we think they
Page 91 U. S. 555
would have arrived at the same conclusion, but would have found
less difficulty in choosing a ground on which to place their
judgment.
In the case before us, we think that Congress intended to make
the board of public works a portion of the municipal corporation.
The governor, or mayor, as he would ordinarily be called,
represented the executive department; the legislative assembly,
like a common council, had the exclusive authority to pass all laws
or ordinances upon the large class of subjects committed to its
charge, with certain specified restrictions; and to the board of
public works, like an ordinary agent of the corporation, was given
the exclusive control of the streets and alleys. Names are not
things. Perhaps there is no restriction on the power of Congress to
create a state within the limits of the District of Columbia; but
it does not make an organization a state to call its mayor a
governor, or its common council a legislative assembly, or its
superintendent of streets a board of public works, especially when
the statute by which they are created opens with a declaration of
its intention to create a municipal corporation. We take the body
thus organized to be a municipal corporation, and that its parts
are composed of the members referred to, and we hold, therefore,
that the proceedings by that body, in the repair and improvement of
the street out of which the accident in question arose, are the
proceedings of the municipal corporation. That in such case the
corporation is responsible we have already cited the authorities to
show.
No doubt there are authorities holding views not in all respects
in harmony with those we have expressed. Among these are
Thayer
v. Boston, 19 Pick. 510;
Walcott v. Swampscott, 1
Allen, 101;
Child v. City of Boston, 4
id. 41.
The first of these cases holds that a city corporation is liable in
tort provided the act is done by the authority and order of the
city government or those branches of the government invested with
authority to act for the corporation, but that it must appear that
the act was done by the express authority of the city, or
bona
fide in pursuance of a general authority on the subject. To
this we assent.
Walcott v. Swampscott was an action
against a town. The surveyor of highways employed one O'Grady to
drive a horse and cart with a load of gravel for the repair of a
highway,
Page 91 U. S. 556
and while thus engaged he came in collision with the plaintiff.
The town was held not to be liable on the theory that the surveyor
was not an agent or servant of the town, but an independent officer
appointed to perform a public duty in which the town had no
interest. In
Child v. City of Boston, it was held that the
city was not responsible for any deficiency in the plan of drainage
adopted by the city, although the plaintiff was injured thereby;
that the duty in this respect was of a
quasi-judicial
nature, involving discretion and depending upon public
considerations; that in this they acted not as agents of the city,
but as public officers. In this respect, the case is in hostility
to
Roch. White Lead Co. v. Rochester, 3 N.Y. 463,
where the city was held liable because it constructed a sewer which
was not of sufficient capacity to carry off the water draining into
it. The work was well done, but the adoption and carrying out of
the plan was held to be an act of negligence. The Boston case,
however, holds that if a sewer, originally well constructed,
becomes defective by reason of lowlands being filled up so that the
outflow is obstructed, it is the duty of the city so to extend the
sewer that its efficiency shall be restored, and that for a failure
to do so it becomes liable to those whose property is injured by
the overflow of the sewer. In its practical results, this is one of
the strongest cases to be found in favor of municipal
liability.
We do not perceive that the circumstance that the fee of the
streets is in the United States, and not in the municipal
corporation, is material to the case. In most of the cities of this
country, the fee of the land belongs to the adjacent owner, and
upon the discontinuance of the street, the possession would revert
to him. The streets and avenues in Washington have been laid out
and opened by competent authority. The power and the duty to repair
them are undoubted, and would not be different were the streets the
absolute property of the corporation. The only questions can be as
to the particular person or body by which the power shall be
exercised, and how far the liability of the city extends.
The judgment of the General Term is reversed and the case is
remanded to the Supreme Court of the District of Columbia with
directions to affirm the judgment of the Special Term upon the
verdict.
MR. JUSTICE FIELD, with whom concurred MR. JUSTICE BRADLEY,
dissenting.
I dissent from the judgment in this case. I do not think the
District of Columbia should be held responsible for the neglect and
omissions of officers whom it has no power to select or
control.
MR. JUSTICE SWAYNE and MR. JUSTICE STRONG dissented.