Lead Opinion
delivered the opinion of the court.
The petition, in substance, alleges, that in September, 1872, the county of St. Louis entered into a written contract
A demurrer was successfully interposed to this petition on the ground that the “county is a political sub-division of the State of Missouri, and not a body corporate, either private or municipal, liable for the laches or misconduct of its servants or employees.”
• In the view we have taken of this case, it wonld be foreign, alike to our purpose and the-facts admitted by the demurrer, to question the correctness of the proposition so generally concurred in elsewhere, asserted in Reardon vs. St: Louis County (36 Mo., 555) “that quasi corporations, created by the legislature for the purposes of public policy, are not responsible for the neglect of duties enjoined on them, unless the action is given by the statute.” -But-as Mr. Justice Metcalf. in Bigelow vs. Randolph (14 Gray; 541), when speaking of the rule established in Mower vs. Leicester (9 Mass., 217), that a private action cannot be maintained against a quasi corporation for neglect of corporate duty, unless the action be given by the statute;, very appropriately remarks: “This rule of law, however, is of limited application. It is applied in the case of towns only, to the neglect or omission of a town to perform those duties which are imposed on all towns without their corporate assent, and not to the neglect of those obligations which a town incurs when a special duty is imposed on it with its consent express or implied, or a special authority is conferred on it at its request. In the latter casé a- town is subject to the same liabilities for the neglect of those special duties’ to which private corporations would be if the same'duties were imposed, or the same authority conferred on them, including their liability for the lorongful neglect, as well as the wrongful ads, of their officers and agentsP ■
Towns in New'.England, as mentioned in the above extract, occupy the- same plane as counties, for, in Eastman vs. Meredith (36 N. H., 292), Perley, C. J., when referring to the former, says ¡ “Towns are involuntary territorial and political divisions of the State, like counties, established for purposes of government and municipal regulation.” A similar definition is given of counties. (Dill. Mun. Corp., vol. 1, § 10a.)
If the doctrine asserted in Bigelow vs. Randolph, supra, be the correct one, and it has received the approval of Mr. Justice Dillon in his work on Corporations (vol. 2, § 762); and if, as before stated, the county undertook the contract of its own volition, and not in the observance of a public duty imposed by general law, then there is no refuge from this result; that the county, in regard to the performance of that contract, must occupy the same attitude as if a mere private corporation, and the work thus contracted for should be-deemed a private enterprise, undertaken for its own local benefit; and this is more especially the case as the work, at the time of the occurrence which resulted in this action, was being done on its own property. And it certainly can make no difference, in point of principle, whether the “ special duty is imposed with its consent, express or implied,” or whether, as in the present case, it voluntarily assumed the performance of that which, if imposed by the legislature, and assented to by the county, would have become a special duty. For it is the element of consent which attaches civil liability, with its attendant consequences, to the act done. In other words, as certain results flow from the acceptance by a quasi corporation of a special duty or a special authority, it is therefore the exercise alone of that volition which fixes its liability. Consequently, it must become quite immaterial whether the thing done, from which civil liability ensues, originates in the free act of the county in the first place, or whether it is legislative permission and its subsequent acceptance by the county, which gives origin to the act whose negligent performance produces the injury complained of.
It was alleged that the dam, which had been erected by certain water commissioners appointed by the State, for the purpose of introducing pure water into the city, was unskillfully built. The plan for the work had been, under the act of the legislature, submitted to the voters for their approval' or rejection. It was approved; and the enterprise, which included the building of the dam, was then, in pursuance of the act, under the direction of the common council, prosecuted by the legislative commissioners at the expense of the city. The city was held liable ; and these were the grounds on which Chief Justice Nelson, in a .very able and exhaustive opinion, in- which many authorities were cited and discussed, held the liability to be based: 1. That the legislative grant was for the purpose of private advantage and emolument, though the public might derive a common benefit therefrom; the corporation quoad hoo was to be regarded as a private company. 2. By accepting the charter, the defendants thereby adopted" the commissioners as their own agents to carry on the work. The acceptance was entirely voluntary, for the State could not enforce- the-grant upon the defendants against their will. 3. A municipal corporation, in its private character as the owner of land and houses, is to be-regarded in the same light as an individual, and dealt with accordingly.
The case finally-went to the court for the correction of errors, where the judgment was affirmed. (2 Den., 433.) There was some diversity of opinion" in that court,-as to the ground on which the affirmance should be placed, nineteen members'of that court voting therefor, against four for reversal ; but only five of the number-gave expression to their views in writing. The president of the senate gave an opin
I am fully aware of the distinction so generally taken by the authorities between the liability of municipal corporations on the one hand, and the non-liability of quasi corporations under like circumstances on the other, though it has been very shrewdly observed in this connection, that “the court have been much perplexed respecting the principle on which to rest the distinction” (Dill. Mun. Corp., § 764) ; but I think it may with safety be asserted, that the admitted facts of this case disclose no sound reason why any such distinction should be taken here, nor why the county, in respect to its own property, should not be held answerable to the same rules, as would certainly prevail were a municipal or private corporation, or an individual, a party defendant. Such is evidently the drift of the above cited cases, and such must be the evident and inevitable result, if that reasoning be pushed to its natural and logical conclusion.
This case is one of first impression in this State, and perhaps elsewhere; and, if it goes beyond adjudicated cases, it certainly does not go beyond the principles which those cases enunciate.
Holding these views, the judgment should be reversed, and the cause remanded. Judge Vories absent; the other judges concur. '
Rehearing
On Motion for Ré-hearing.
There has been a motion for a re-hearing filed in this cause, to which due consideration has been given. It will have been observed that, in the opinion delivered, our remarks were based on the case made by the pleadings. If, however, the facts of the case do not correspond with the admissions made by the demurrer, this is a matter of which advantage may hereafter be taken by traversing the allegations of the petition.
The motion is therefore overruled. Judge Tories absent; the other judges concur.