City of Detroit v. Corey

9 Mich. 165 | Mich. | 1861

Lead Opinion

Manning J.:

The only question in this case is the liability of the city.

It was said on the arg-ument that the contractors, and not the city, are liable, as the sewer was being constructed by them under a contract with the city when the accident occurred.

When, the relation of j^'incipal and agent, or master and servant exists, the rule of respondeat superior is applicable, but not when the relation is that of contractor only. In all ordinary transactions the relation of contractor excludes that of principal and agent, or master and seyvant. But there is not necessarily such a repugnance between them that they can not exist together. The difference between them is, that a contractor acts in his own right and for himself, whereas an agent or servant acts for and in the name of another.

In the case before us, both relations exist, and must necessarily exist from the peculiar character and circumstances of the case. The contractors not only acted for themselves, but at the same time as agents-for the city, under the power given it to construct sewers in its streets, which are public highways. They had no right to make the excavation they did, except as agents for the city; and had they been proceeded against by indictment for creating a public nuisance, they could not have justified in their own right, but would have had to justify as agents of the city under their contract.

It is also to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlawful, was not 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 largo 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 tlie 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 hound for the performance of these obligations; he can not accept the power divested of them, or rid himself of their performance by executing it 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 can not thereby relieve himself of his personal liability, or compel an injured party to look to his agent instead of himself for damages.

It was also said on the argument, that the city was required by its charter to let the contract to the lowest bidder. I agree with counsel in this construction of the charter, when the work is done by contract, and the contract price exceeds $200, as it does in this case. But I do not see in it any intention of the Legislature to make the contractor only liable, and to relieve the city, which is benefited by the power, of its liability. The object of this provision in the charter is to protect the city against frauds too frequently concocted between faithless public functionaries and contractors, by which the public is sometimes made to pay much move for a thing than it is worth.

In Lesher v. The Wabash Navigation Company, 14 Ill. 85, the company v/as authorized by its charter to enter upon certain premises, and take therefrom material for the construction of its works by making compensation therefor. The company contracted with certain individuals to build a dam, the contractors agreeing to furnish the material,' which was taken by them from the land of the plaintiff, who claimed compensation of the company, and the court held the company liable, on the ground that the contraetors were the servants of the company. Catón J., in delivering the opinion of the court, says: “The contractors were none the less the servants of the company, because they were doing the work by contract, and for a stipulated price. The work was still done by the company, and under the authority of the charter. The privileges which the charter conferred upon the company to enable them to do the work, devolved upon the contractors for the same purpose. The very erection of the dam across the river was an obstruction to its navigation, and would have boon unlawful, but for the authority conferred by the charter. Ilad the Culberstons been prosecuted for damages occasioned by reason of such obstruction, they would immediately have sought protection under the charter.” * * * “Had a cause of action accrued to an individual by reason of the obstruction erected in the river, the company whose work it was would have been liable as much as if they had erected it with their own hands.”

In Bailey v. The Mayor, &c., of the City of New York, 3 Hill, 531, the action was for damages done the plaintiff by the breaking of a dam erected across the Croton River, to supply the city of New York with water. The defense was, that the action could not be maintained upon the principle of respondeat superior; 1st. because the water commissioners, who had charge of the construction of the woi’k, were appointed by the State and not by defendants; and, 2d, if they were to be regarded as having been appointed by defendants, that defendants, in building the dam, were acting in a public capacity, and like other public agents, were not responsible for the misconduct of those necessarily employed by them. Roth points were ruled against defendants. Nelson Ch. <T., in delivering the opinion of the court says: “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 the 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 land and houses belonging to it situate within its corporate limits.”

This decision was afterwards affirmed in the Court of Errors, the Chancellor holding the defendants liable as the owners of the land on which the dam was erected, and other members of the court on the ground ^stated by Ch, J. Nelson in his opinion.

In Storrs v. The City of Utica, 17 N. Y. Reports, 104, which is a case of a sewer constructed in a public street under a contract with the city, and is in all respects analagous to the one before üs, the city was held liable. The liability of the city is put on the ground of its duty to keep its streets in repair, and a like duty was urged on the argument as the ground of liability in the present case. While I concur in the correctness of the conclusions to which the Court came in that case, I am unable to see how the execution of the power given to the city to construct sewers, is, of itself, an infringement of .its duty to keep its streets in repair. The duty and power must be so construed as to be consistent with each other, and not repugnant the one to the other.

In Lowell v. Boston and Lowell Railroad, 23 Pick. 24, defendant was held liable for an injury to an individual by falling into a deep cut made in a highway, in the construction of the company’s road by a contractor.

This case is commented on and approved by the same court in Hilliard v. Richardson, 3 Gray, 349. Thomas J,, after stating the facts in the case, says (p. 353) “Now it is plain that it is the corporation that are entrusted by the Legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they can not escape this responsibility by a delegation of this power to others.’’

In Reedie v. The London and North Western Railway Co., 4 Exch. 244; Barry v. The City of St. Louis, 17 Mo. 121, and perhaps some other cases, the corporation was held not to be liable. The distinction does not appear to have been taken, in these cases, between ordinary contractors who, doing only what it is lawful for any one to do, act in their own right, and contractors under a special legislative power given for private purposes, rendering that lawful, in the donee of the power and those acting under him, which, would otherwise be unlawful. The judgment of the court below I think should be affirmed.

Martin Ch. J. and Christiancy J. concurred.

---

Concurrence Opinion

Campbell J.:

I can not concur in the result arrived at by my brethren in this case. It appears to me to come clearly within that class in which the employer, hawing made a fair and proper contract to do a lawful act in a lawful tvay, is not liable where the contractor violates his duty to the injury of a third person.

The city of Detroit is not a private corporation established for private ends, but a public corporation established for the better government of a particular district, and all its powers are given because deemed essential for public purposes. The duties imposed upon it are all coordinate, and while required to bo exercised harmoniously, are of equal dignity and importance. The law does not recognize any principle whereby one shall bo regarded as subordinate to another. In carrying out any public work it may often happen that easements and improvements of a different character may be for the time interfered with. In such case one work must not stop because it interferes with another. No street can be paved, nor water pipe laid, nor sewer built, without an interference during the process with the ordinary use of the highway. The city is no more bound to keep up the highway, than it is to build the sewer, or lay the water pipe, when in the exercise of its discretion it has determined these to be required by the public health or necessity.

In the case before us, the city entered into a contract with private parties for the construction of the sewer in question. It is admitted to have been properly planned, and it is also beyond question that nothing- was omitted in the specifications or in the contract which was necessary either for convenience or safety. Had the contract been carried out fully, the accident could not have happened. The city, then, is not at fault for omitting any precautions in its powder, or any act which could be done to guard the faithful performance of the work without peril to others. And if it is liable at all, it is upon the theory that the contractor is so far a mere agent, that the city is responsible for his unfaithfulness, and its consequences to all third persons, and that such responsibility exists although the work itself was lawful and lawfully put under the contractor’s control. The charter contemplates that all expensive public improvements shall be made by contract upon biddings. The evident object was to secure the performance of such work by the lowest bidder, and to prevent the city from exercising favoritism, or using funds for corrupt purposes, as well as to prevent the employment of a host of persons under pretext of doing service. The suppression of fraud and the exercise of economy were both designed. But it was, for whatever reason, done to keep the city from having its own employees. The municipal authorities could plan all public works, and prescribe all their details, but they could not build them: that must be done by private contractors.

It certainly would strike most persons that, a power of this kind, which must, under the charter, be exercised by private parties, is not a public power, and can involve no public responsibility. The doctrine of agency is not compatible with the Avant of poAver in the principal. Neither do I perceive how, when such powers are taken from the city and put in private hands, they can be partially severed, allowing the city to do a portion of the Avork, and the contractors the rest. . The evil to be avoided would not be remedied by anyTsuch process. If a sower is to be constructed, the work must embrace everything essential to its proper and lawful completion. And if no seAver can be properly built in a city thoroughfare without certain guards and fences, the erection of these is a necessary precaution incumbent upon the contractor. They must be changed and removed daily as the work progresses, and involve the necessity of workmen, whose employment would not only interfere Avith the charter, but who could not safely or prudently be left independent of the management of the main work. The suggestion made by one of the recent decisions, that a city can not get rid of the performance of its duties by shifting them off under the pretext of a contract, loses all of its force, if it has any, where the law itself has fixed the duty elsewhere, and not only sanctions but inquires the contract.

The doctrine is not disputed by my brethren that, where the relation is'.merely one of contract, there is no. liability against the employer for the negligence or misconduct of the contractor. But the decision seems to be based upon the] theory that there is here more than a contract; that the city has received certain privileges Avhich are upon implied conditions, and that those conditions are not susceptible of performance without the action of the-city, through agente for which it is responsible. I can not accede to this doctrine.

The city is entirely the creation of statute. It holds. no privileges intact. All its powers may be removed, modified, or confided, to other hands at any time. The Legislature bestows upon each municipal corporation the powers which are deemed proper to be exercised by it, precisely as upon a township or other local body. Neither the city nor its inhabitants can set up, against a legislative removal of authority, that money has been expended or debts incurred relying upon it. The citizens have no voice in the matter. And the duties of such a corporation, imposed entirely by law, are in no sense distinguishable in their character from like duties exercised by any other local authority. They are not assumed by .contract, but imposed by authority. And why a contract made by a city within its sphere, differs from one made by any one else, I am not able to perceive.

It is undoubtedly true that in many cases where a franchise is granted to a private corporation for its own emolument, and express duties are connected with the exercise of that franchise, the corporation is bound to see them performed; and the same obligation would perhaps apply to duties arising by necessary implication. But this rule is by no means of universal application. A corporation authorized to do an act is usually authorized to do it as an individual could, and if he could do it by contract so as to shield himself from the contractor’s misdeeds, the corporation could also. Individuals have been held exempt from the consequences of breaches of duty by their contractors, in work done in highways as well as elsewhere, from the abuse of which accidents and nuisances have occurred. And corporations have not usually been held to any different liability. See Blake v. Ferris, 1 Seld. 48; Pack v. Mayor, 4 Seld. 222; Kelly v. Mayor, 1 Kern. 432; Clark v. Fry, 8 Ohio S. R. 358; Moore v. Sanhorn, 2 Mich. 528; DeForest v. Wright, 2 Mich. 368. There is nothing to prevent the Legislature from allowing any person whatever to do any act in derogation of what would be otherwise a public easement, so long as such act does not injure some private right not dependent on that of the public, and then no one but the holder of such private right can complain. If the Legislature authorize a highway to be obstructed or diverted, no one can complain of the obstruction merely because, as one of the public, he has been accustomed to pass.

The right, therefore, of doing acts which may temporarily or permanently interfere with the public passage, is not necessarily confined to a city or local corporation, but may be exercised by any one to whom it is granted. And in authorizing- drains and other usual private works to be carried on, I apprehend the city acts merely on behalf of the public, and not as the possessor of a franchise. These works are not city works in any sense of the term; and the city, in the cases cited, and numerous others cited on the argument, is not responsible. It does not follow, because a person prosecuted for digging up a highway must show his license, that his act is the act of the city, and that he is the agent of the city, any more than a broker is agent of the State Treasurer who gives him a license.

The distinction taken by my brethren, it seems to me, applies only where private property is interfered with, under some right arising under the principle of eminent domain. Thus, we held in the case of Gardner v. Smith, 7 Mich. 410, that where the law made a railroad corporation, and its agents, liable for losses from neglect to make the fences required by section 43 of the general railroad law, upon property adjoining the track, a contractor building the road had no right to enter upon land and open the track, except upon performance of those conditions, and was to be regarded as an agent of the company. But a franchise of this kind is neither negotiable nor assignable, and can only be exercised by the grantee from the State.

In the case before us, the contractor himself, and not the city, is the very person, and the only person, authorized by; the charter itself to do this work. He is expressly recognized i.in the grant of power. The city does not appoint him as an agent to do what it could do by any other agent. It acts in; prarsuanee of a strict legal duty, which is confined to making plans and lotting them out to bidders. And I think this recognition of the right and duty of letting out the work in this way would take this case out of the rule laid down by my brethren, even if it were thus broadly applicable.

But it has not been held applicable to prevent municipal corporations, any more than individuals, from making contracts with the same immunity. The English, and most of the New York oases cited on the argument, establish this right. There are some cases holding a different doctrine. The cases of Storrs v. Utica, 17 N. Y. 104, and Hickok v. Plattsdurg, 16 N. Y. 161, aro undoubtedly authorities the other way. But neither of these oases assumes to assail the correctness of the former decisions directly. They endeavor to draw lines of distinction, which, to my mind, are entirely untenable. And the case of Storrs v. Utica goes partly, if not mainly, upon an assumption which my brethren have very properly disapproved, that the duty of maintaining a highway in repair was paramount to that of constructing a sewer.

I think the court below erred in holding the city liable for the neglect of the contractor, and that the judgment ought to be reversed.

Judgment affirmed.