58 Minn. 182 | Minn. | 1894
The charter of the defendant provides (Sp. Laws 1887, ch. 2, sube. 5, § 5) that, whenever the board of public works shall award a contract for making any of the improvements mentioned in the subchapter, the person to whom it is awarded shall furnish to the city a bond with sufficient sureties, to be approved by the board of public works, conditioned that he will execute the work for the price mentioned in the bid, and according to the plans and specifications, and that he will pay for all labor done and material furnished for said improvement.
As held in State Bank of Duluth v. Heney, 40 Minn. 145, (41 N.
For the purpose of reaching the question on which the case will be decided, we will concede, what is by no means clear, that on the transfer of the contract by the original contractors to Bell the original bond was discharged, and it was the duty of the board of public works to take a new bond, as upon a reletting of work. It then presents the question, is the city liable to those furnishing labor and material to contractors making public improvements, for a failure of the board of public works to take such bond? The bond is, in its character and purpose, double. It is — First, security to the city for the performance of the contract to do the work; second, security to those who may furnish labor or material to the contract- or for the work.
■ The liability of the city depends on whether the duty imposed on the board to take the bond is, so far as concerns those who may furnish labor and material, a municipal or corporate duty, or is a duty imposed on the board, as an agency of the state, for the public or general (not corporate) benefit.
The distinction between these two classes of duties, — i. e., municipal or corporate duties, and public duties, — and that for misfeasance or nonfeasance, that in the one case the municipality will be liable and not in the other, is well established. 2 Dill. Mun. Corp. §§ 966, 967. The difficulty usually lies in determining what are to be deemed municipal or corporate duties and what public duties. The test suggested by Dillon in section 967, that to be a municipal duty it must relate to the local or special interests of the municipality, is the most reasonable and satisfactory test, and was applied by this court in Bryant v. City of St. Paul, 33 Minn. 289, (23 N. W. 220.)
Tried by that test, the duty to take a bond for security of laborers and material men was a public, and not a corporate, duty; in other words, it was imposed on the particular officers, and not on the corporation as such. It did not relate to the local or special interests of the municipality nor of its citizens. It was a matter of indifference to the city that those claims were or were not secured. Such a bond, when taken, operates as security not merely
Judgment affirmed.
'(Opinion published 59 N. W. 960.)
Application for reargument denied October 9, 1894.
