21 Mich. 84 | Mich. | 1870
Lead Opinion
The principal question in this case is whether the city of Detroit is liable to a private action by an injured party, for neglect to keep a cross-walk in repair. The other questions involve an inquiry into the circumstances which would go to modify any such liability in the present case.
None of those cases presented the precise question raised here, and we are required, therefore, to consider it as an •original inquiry, except in so far as it may be affected by :any principles involved in the cases already decided.
The streets of Detroit are }3ublic highways, designed .like all other roads, for the benefit of all people desiring to travel upon them. The duty or power of keeping them in proper condition is a public and not a private duty, and it is an office for the performance of which there is no •compensation given to the city. Whatever liability exists to perform this service to the public, and to respond for any failure to perform it, must arise, if at all, from the implication that is claimed to exist in the nature of such .a municipality.
There is a vague impression that municipalities are
It has never been claimed that the violation of duty to the public was any more reprehensible in these corporations than outside of them; nor that there was any more justice in giving damages for an injury sustained in a city or village street than for one sustained outside of the corporate bounds. The private suffering is the same, and the official negligence may be the same. The reason, if it exists, is to be found in some 'other direction, and can only be tried by a comparison of some of the classes of authorities which have dealt with the subject in hand.
It has been held that corporations may be liable to suit for positive mischief produced by their active misconduct, and not from mere errors of judgment. And while the application of this rule may have been of doubtful correctness in some cases, the rule itself is at least intelligible, and will cover many decisions. It was substantially upon this principle that the case of Detroit v. Corey was rested by the Judges who concurred in the conclusion. Thayer v. the City of Boston, 19 Pick., 511, was a case of this kind, involving a direct encroachment on private property. The Rochester White Lead Co. v. City of Rochester, 3 N. Y., 465, where a natural water-course was narrowed and
The injuries involved in these New York and Massachusetts cases referred to were not the result of public nuisances, but were purely private grievances. And in several cases cited on the argument, the mischiefs complained of were altogether private. The distinction between these and public nuisances or neglects has not always been observed, and has led to some of the confusion which is found in the authorities.. In all the cases involving injuries from obstructions to drainage, the grievance was a private nuisance. In case of Mayor v. Furze, 3 Hill R., 612, which has been generally treated as a leading case, the damage was caused by water backing up from sewers not kept cleared out as they should have been. Barton v. Syracuse, 36 N. Y., 54 involved similar questions, as did also Childs v. Boston, 4 Allen, 41. These cases do not .harmonize with Dermont v. Detroit, but they rest on the assumption that, having constructed the sewers voluntarily for private purposes, and not as a public duty, the obligation was complete to keep them from doing any mischief, as it would be in private persons. And in Bailey v. Mayor, 3 Hill R., 538, and 2 Denio, 433, the mischief was caused by the breaking away of a dam connected with the Croton water-works, whereby the property of the plaintiff vas destroyed. In this latter case the judgment rested entirely upon the theory that the city held the water-works as a private franchise and possession, and subject to all the responsibilities of private ownership. The .Judges, vbo regarded it as a public work, held there was no liability. In Conrad v. Trustees of Ithaca, 16 N. Y., 159, the facts
Another class of injuries involves a public grievance specially injuring an individual, arising out of some neglect or misconduct in the management of some of those works which are held in New York to concern the municipality in its private interests, and to be in law the same as private enterprises. It is held that in constructing sewers, and similar works, which can only be built by city direction, if the streets are broken up and injuries happen because no • adequate precautions are taken, the liability shall be enforced as springing from that carelessness, and not on the ground of non-repair of highways. Lloyd v. Mayor, 5 N. Y., 369, and Storrs v. Utica, 17 N. Y., 104, were cases of this kind. In these cases, as in the case of Detroit v. Corey, the streets were, held to have been broken up by the direct agency of the city authorities, and the negligence which caused the injury was held to be negligence in doing a work requiring special care, — or, in other
The cases in which cities and villages have been held subject to suits for neglect of public duty, in not keeping highways in repair, where none, of the other elements have been taken into the account, are not numerous, and all which quote any authority profess to rest especially upon the New York cases, except where the remedy is statutory. It will be proper, therefore, to notice what those cases are, and upon what basis they are supported. The only cases of this kind decided in the courts of last resort, that we have been able to find, are Hutson v. Mayor, 9 N. Y. 163; Hickok v. Plattsburgh, 16 N. Y., 161; and Davenport v. Ruckman, 37 N. Y., 568. This latter case resembles the one before us very closely in its leading features, and would furnish a very close precedent. It is not reasoned out at all, but refers for the doctrine to the other two cases, and to an authority in 18 N. Y., which does not relate to municipal liability. The case of Hutson v. Mayor does not attempt to find any distinct foundation for the right of action, but refers to the cases in 8 Hill and the Rochester White Lead Co. case, and Adsit v. Brady, 4 Hill, 630, as having established the liability. This latter case is disapproved in Weet v. Brockport, and the others are sus
In order to get at the true ground of liability, the opinion goes on to determine, first, whether townships and other public bodies, not being incorporated cities or villages, are liable, and shows conclusively that they are not. And the Court arrive at this conclusion, not on the basis of an absence of duty or an absence of means, but because their duties are duties to the public, and not to individuals. To show this, full citations are made from the English cases, which were cited before us, and also from the American 'cases. The case of Young v. Com’rs of Roads, 2 Nott & McCord, 537, is cited approvingly, and the following language is quoted as expressing the correct idea:— “When an officer has been appointed to act, not for the public in general, but for individuals in particular, and from each individual receives an equivalent for the services Tendered him, he may be responsible, in a private action, for a neglect of duty; but when the officer acts for the public in general, the appropriate remedy for his neglect of duty is a public prosecution.” In another part of the opinion, Sheriffs are given as examples of the former, and Highway Commissioners of the latter class of officers. The cases cited do not all require the consideration for the services to come immediately from individuals, but they all require the services to be due to individuals, and not to the public, and to spring from contract. The English cases are reviewed in the Mersey Dock cases, and exemplify this. Thus the liability to repair a sea-wall is in favor of those
. It is admitted everywhere, except in a single case in Maryland, that there is no common-law liability against ordinary municipal corporations such as towns and counties, and that they cannot be sued except by statute.
It has also been uniformly held in New York, as well as elsewhere, that public officers, whose offices are created by act of the Legislature, are in no sense municipal agents, and that their neglect is not to be regarded as the neglect of the municipality, and their misconduct is not chargeable against it unless it is authorized or ratified expressly or by implication. This doctrine has been applied to cities as well as to all other corporations. Barney v. Lowell, 98 Mass. R., 570; White v. Phillipston, 10 Metc., 108; Mower v. Leicester, 9 Mass., 247; Bigelow v. Randolph, 14 Gray, 541; Walcott v. Swampscott, 1 Allen, 101; Young v. Com’r of Roads, 2 Nott & McCord, 537; Pack v. Mayor, 4 Seld., 222; Martin v. Mayor of Brooklyn, 1 Hill, 545; Bartlett v. Crozier, 17 J. R., 438; Morey v. Newfane, 8 Barb., 645; Eastman v. Meredith, 36 N. H., 284; Hyde v. Jamaica, 27 Vt., 443; Lorillard v. Town of Monroe, 11 N. Y. 392; Mitchell v. Rockland, 52 Maine, 118.
In the case of Eastman v. Meredith, 86 N. H, 284, the distinction between the English and American municipal corporations is clearly defined. The former often hold special property and franchises of a profitable nature, which they have received upon conditions, and which they can hold by the same indefeasible right with individuals. But American municipalities hold their functions merely as governing agencies. They may own private property, and transact business not strictly municipal, if allowed by law to do so, just as private parties may, and with the same liability. But their public functions are all held at sufferance, and their duties may be multiplied and enforced at the pleasure of the Legislature. They have no choice in the matter. They have no privileges which cannot be taken away, and they derive no profit from their care of the public ways, and the execution of their public functions. They differ from towns only in the extent of their powers and duties bestowed for public purposes, and their improvements are made by taxation, just as they are made on a smaller scale in towns and counties.
In the case of Bailey v. Mayor it was intimated by Judge Nelson that the State could not compel the city to accept its charter, and in Child v. Boston, 4 Allen 41, the fact that the sewerage system had been left, to vote and been accepted, was held to make it a private and not a public matter. The sewer
It is impossible to sustain the proposition that these charters rest in contract. And it is impossible, — as Judge Selden demonstrates, to find legal warrant for any other ground for distinguishing the liability of one municipal body from that of another. There is no basis in authority for any such distinction concerning the consideration on which their powers are granted, and it rests upon simple assertion. And yet the decision stands in New York as authority for all that is claimed here, because, although in the case in which the opinion was given in the Supreme Court, it was not called for, yet in the ease of Hickok v. Trustees of Plattsburgh, in which it was adopted as the opinion of the Court of Appeals, the mischief was a mere neglect to repair, where the street had been obstructed by an individual excavation for a short time.
It is impossible to harmonize the decision with the previous decisions exempting corporations from responsibility because public officers were not their agents. It is no easier to sustain it in the face of the uniform decisions denying liability for failure to enforce their police regulations. The authorities which make corporations liable on the ground of conditions attached to their franchises, go very far towards compelling them to respond as absolutely bound to prevent mischief. And the general reasoning on which the most of the opinion rests, and the criticisms made upon former decisions, — which, it is asserted, went altogether too far in creating liability, — all are designed to
There is no such distinction recognized in the law elsewhere. In City of Providence v. Clapp, 17 How. R., 161, the United States Supreme Court, through Judge Nelson, held that cities and towns were alike in their responsibility and in thbir immunity. In County Commissioners of Anne Arundel v. Duckett, 20 Md., 468, a county was held responsible to the fullest extent. In New Jersey, in Freeholders of Sussex v. Strader, 3 Harr. (18 N. J.), 108; Cooley v. Freeholders of Essex, 27 N. J., 415; Livermore v. Freeholders of Camden, 29 N. J., 245, and 2 Vroom. (31 N. J.), 507; and Pray v. Mayor of Jersey City, 32 N. J., 394, the cases were all rested on the same principles, and cities were exonerated because towns and counties were. The suggestion of Judge Selden has been caught at by some courts since the decision, and has been carried to its legitimate results, as in Jones v. New Haven, 34 Conn., 1, where the damage was caused by a falling limb of a tree. But, so far as we have seen, even the cases which are decided on this ground, do not hold that towns dp not receive their powers upon a consideration as well as cities. That question still remains to be handled in those courts.
It is utterly impossible to draw any rational distinction on any such ground. It is competent for the Legislature to give towns and counties powers as large as those granted to cities. Each receives what is supposed to be necessary or convenient, and each receives this because the good government of the people is supposed to require it. It would be contrary to every principle of fairness to give special privileges to any part of the people and deny them to others; and such is not the purpose of city char
We think that it will require legislative action to create any liability to private suit for non-repair of public ways. Whether such responsibility should be created, and to what extent and under what circumstances it should be enforced, are legislative questions of importance and some nicety. They cannot be solved by courts.
Judgment should be reversed with costs.
Dissenting Opinion
dissenting.
It is unquestionably, I think, a rule of sound public policy, that a municipal corporation which is vested with full control of the public streets within its limits, and chargeable with the duty of keeping them in repair, and which also possesses by law the means of repair, should be held liable to an individual who has suffered injury by'a failure to perform this duty. If we sat here as legislators
But we sit here in a judicial capacity, and the question presented is, Avhat is the law, and not Avhat ought the law to be. This question is to be determined upon common-law principles, and the most satisfactory evidence of what those principles are is to be found in the decisions of the courts.
The decisions which are in point are numerous; they have been made in many different jurisdictions, and by many able jurists, — and there has been a general concurrence in declaring the law to be in fact what we have already said in point of sound policy it ought to be. We are asked, nevertheless, to disregard these decisions, and to establish for this State a rule of law different from that Avhich prevails elsewhere, and different from that which, I think, has been understood and accepted as sound law in this State prior to the present litigation.
The reason pressed upon us for such a decision is, not that the decisions referred to are vicious in their results, but that the reasons assigned for them are insufficient, so that, logically, the courts ought to have come to a different conclusion.
I doubt if it is ,a sufficient reason for overturning an established doctrine in the law, Avhen its results are not mischievous, that strict logical reasoning should have led the courts to a different conclusion in the beginning; if it is, we may be called upon to examine the foundation of many rules of the common law which have always passed unquestioned.
I concur fully in the doctrine that a municipal corporation or body is not liable to an individual damnified by the exercise, or the failure to exercise, a legislative authority; and I also agree that the political divi
The question for us to decide is, whether a different rule applies where a municipal corporation exists under a special charter which confers peculiar powers and privileges, and imposes special duties, from that which prevails in the case of towns and counties. The authorities have found reason for a distinction, and I am not yet prepared to say that their reason is baseless.
The leading case on the subject is Henley v. The Mayor and Burgesses of Lyme Regis, which went from the Common Pleas through the King’s Bench to the House of Lords, and is reported in 5 Bing., 91; 3 Barn. and Ad., 77, and 1 Bing. N. C., 222. In that case it appeared that the King, by letters patent, had granted to the Mayor and Burgesses of Lyme Eegis the borough or town of that name, and also the pier, quay, or cob, with all liberties, profits, etc., belonging to the same, and remitted a part of their ancient rent, expressing his will therein, that the said Mayor and Burgesses and their successors, all and singular, the buildings, banks, sea-shores, etc., within the, said borough, or thereunto belonging, or situate between the same and the sea, and also the said pier, etc., at their own costs and charges, should repair, maintain and support. All the courts held that the defendants, having accepted the charter, became legally bound to repair the buildings, banks, etc., and that as this obligation was one which concerned the public, an action on the case would lie against them for a direct and particular damage sustained by an individual in consequence of a neglect to perform it. The
I do not understand this decision or the previous and analogous one of Mayor of Lynn v. Turner, Cowp., 86, to be questioned in the present case; but it is contended that neither is applicable, because the grant was one for the benefit of the corporators, which they might accept or refuse at their option, but which, if accepted, must be taken cum onere, and the acceptance was in the nature of a covenant to perform the duty imposed. Moreover, that duty, it is said, Avas. individual, not governmental; and the responsibility for failure to perform it would not depend on negligence, notice, or any other contingency not expressed in the coA'enant; and in any point of view it is argued that these decisions have no more bearing upon the question of public duties and public responsibilities, than if the grants to the corporations in these cases had been made to individual residents.
This is not the first time that this view of the cases referred to has been presented to the courts. It was very fully examined by Mr. Justice Selden in Weet v. Brockport, 16 N. Y., 161, note, and in his opinion there was nothing in it which should exempt municipal corporations from the principle declared, even when the neglect of duty relates to a governmental power. “It is well known,” he very truly says, that “charters are never imposed upon municipal bodies except at their urgent request. While they may be governmental measures in theory, they are, in fact, regarded as privileges of great value, and the franchises they confer are usually sought for
Now it does not appear to me to be a sufficient answer to this position, that the State might, if it saw fit, impose a municipal charter upon the people without their consent and even against their remonstrance. That is not the ordinary course of events, and the question for us to consider is — What is the legal significance of things as they actually occur ? We find, as matter of fact, that people apply for a charter conferring such privileges as they deem important, in view of their actual circumstances, and that many of these privileges are quite superior to, and more valuable than, those possessed by the people generally. When the Legislature grants these privileges it imposes concurrent duties. What is the fair construction of these acts of the people and the Legislature respectively, — the people in soliciting the privileges, and the Legislature in attaching the duties to the grant which it makes ? This is the question which we are to consider.
The New York courts have invariably held that when the people of the municipality accepted the charter which they had thus solicited, a contract was implied on their part to perform the corporate duties. They have always denied that in this respect there was any difference between a municipal corporation and a private corporation or private individual, who had received from the sovereignty a valuable grant, charged with conditions.—Hutson v. N. Y., 9 N. Y., 163; Weet v. Brockport, 16 N. Y., note, 161; Conrad v. Ithaca, 16 N. Y., 158; Storrs v. Utica, 17 N.
The same question has also been frequently and fully examined by the Supreme Court of the United States, and no doctrine is more firmly settled in that Court than that municipal corporations are liable for negligence- in cases like the present. It will be sufficient, perhaps, to refer to the case of Weightman v. Washington, 1 Black, 39, in which the English and American cases were examined, but the same question has frequently been brought to the attention of the Court since, and uniformly with the same result.
And it is remarkable that in all the cases which have upheld this doctrine there has scarcely been a whisper of judicial dissent. It would be difficult to mention another so important question, which has been so often, so carefully, and so dispassionately examined, and with such uniform result. In no State is the doctrine of Henley v. Mayor, etc., of Lyme Regis, as applied in Weet v. Brockport, denied except in New Jersey, and in that State the authorities I have referred to seem to have been passed over in silence and perhaps were^not observed.
