O'Leary v. Board of Fire & Water Commissioners
44 N.W. 608
Mich.
1890
Check Treatment
Campbell, J.

Plаintiff was injured by falling into a ditch dug by the servants of defendant for laying water-pipes. He recovered damages to an extent not held by the trial judge to be beyond the merits of thе case; and, if defendant is liable at all, there seems to be nothing in the record to show error in holding the judgment regular and proper in law, although, as not uncommon in such cases, the jury gave the plaintiff the benefit of all the disputed facts. But it is claimed that under the statutes regulating its powers, and those of the city of Marquette, the defendant cannot be held legally responsible for the negligence of its servants in an action in tort for damages. That the individual wrong-doer, if there was one, by whose misconduct plаintiff was hurt, is responsible, is not disputed. Whether, the corporation in charge of the public ways is liable is not before us. The sole question is whether this corporation, which is сreated to subserve certain important municipal purposes, has been made *283responsible by law for such accidents, when, if not incorporated, it is not shown thаt it would be, is the only matter for our consideration; and the differences existing under different charters are such as to leave the matter to be decided by its own facts.

Thе defendant was incorporated by “An act to create a board of water commissioners in the village of Marquette, and to define its powers and duties,” approved March 2, 1869. The subsequent incorporation of the city merely made the necessary changes to meet the change in government. Although not in terms declared to be a corporation, the powers given them are in such language as to make them such. They are liable, as well as competent, to be impleaded, ‍‌‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‌‌​​​​‌‌‌‌​‌​‍tо make contracts, and hold property, to have a seal, and make by-laws, and generally “to do all legal acts which may be necessary and proper tо carry out the effect, intent, and object of this act.” As all of their powers are confined legally to the scope' of the statute, it is necessary to considеr them. The members derive their appointment from the corporate body of the city, and not from the people. By section 6' they are required—

“To examine аnd consider all matters relative to supplying said [city] of Marquette with a sufficient quantity of pure and wholesome water for domestic use, also to provide suitable аnd efficient means for the extinguishment of fires.”

This is the general and sole purpose of all their incidental powers. By subsequent sections they are empowered, under аpproval of the electors by vote 'on that question, to issue bonds to a limited extent, and, if unable to pay, to renew them. They are authorized to report to thе city council, which is empowered, but not expressly required, to raise by tax any sums beyond the revenue of the board necessary to pay principal or interest оn the *284bonds, or “any deficiency in operating expenses.” They are authorized, “after the necessary means have been procured, as herein provided,” to purchase necessary lands and materials, and construct reservoirs, buildings, machinery, and fixtures to supply water, and to provide means for fire protection, and are given, for the purposes of the “fire department,” the powers which were before possessed by the village. They ‍‌‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‌‌​​​​‌‌‌‌​‌​‍are empowered to lay pipes fоr water, and to build hydrants, and to employ such persons as they deem necessary to perform their duties. They have power to levy water-rates on consumers on an equitable basis. They can procure lands by condemna. tion, where needed, and, on payment of the damages into the city treasury, may get the title. All materials contracted for or procured by them are exempt from execu. tion.

It may be important, in this connection, to consider the legal- position of this board in its functions, Whilе it is a local corporation, created to serve municipal purposes, it is in no sense a municipal corporation, within the legal meaning of that term. It hаs been settled in this State that there can be no municipal corporation that is not the direct representative of the people of its locality. Attorney General v. Councilmen, 58 Mich. 213 (24 N. W. Rep. 887); Allor v. Auditors, 43 Id. 76 (4 N. W. Rep. 492); People v. Hurlbut, 24 Id. 44; Board v. Auditors, 68 Id. 576 (36 N. W. Rep. 743); Commissioners v. Detroit, 28 Id. 228; Attorney General v. Detroit, 29 Id. 108; Butler v. Detroit, 43 Id. 552 (5 N. W. Rep. 1078). In several of these as in other cases the doctrine has been recognized that the establishment of corporations to act as municipal boards or agenсies did not give them any governmental municijoal authority; and it is difficult to see how the incorporation or non-incorporation of the same board can changе its character in the performance *285of public duties. The furnishing of water and the establishment of a fire department are among the almost universal functions of cities; and the incorporation of water and fire boards appointed ‍‌‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‌‌​​​​‌‌‌‌​‌​‍by the city is only a convenient way of removing that business from the constant interference of thе ordinary city authorities, with such safeguards as are deemed best for that purpose.

It was held in Detroit v. Blaclceby, 21 Mich. 84, that cities and municipalities are not usually responsible in damages for the neglеct of persons in public office, unless made so by statute; and it has been held in numerous cases since that the statute liability cannot be enlarged. Detroit v. Putnam, 45 Mich. 263 (7 N. W. Rep. 815); McKellar v. Detroit, 57 Id. 158 (23 N. W. Rep. 621); McArthur v. Saginaw, 58 Id. 357 (25 N. W. Rep. 313);

Williams v. Grand Rapids, 59 Id. 51 (26 N. W. Rep. 279); Keyes v. Village of Marcellus, 50 Id. 439 (15 N. W. Rep. 542). On the other hand, it was held in Detroit v. Corey, 9 Mich. 165, that where a city is еngaged in making a work which is its private property as a municipality, and not a mere public easement, and done under city employment or contract, it is respоnsible for injuries caused by neglect in its process of construction, as it is for any such action as directly injures private property. Pennoyer v. Saginaw, 8 Mich. 534; Ashley v. Port Huron, 35 Id. 296; Defer v. Detroit, 67 Id. 346 (34 N. W. Rep. 680). But it is not usually liable in other cases. If this dеfendant was the representative directly of . the people of Marquette to govern the city, with power to tax the people to carry out its plans, and held the property in its charge by proprietorship ‍‌‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‌‌​​​​‌‌‌‌​‌​‍for its own purposes, it would seem to come within the Corey case. But a city represents the peoplе for all the strict purposes of local government, and has power to raise its own revenue. The Legislature, in requiring towns, cities, and villages *286to answer in damages for nеglect to keep roads in repair, at the same time found it necessary to remove one of the recognized difficulties arising from, lack of funds, by enabling them to provide by taxation for all such purposes. The purposes for which the present municipal agency was created are entirely for the protection of the city from fire, and for promoting its health by a supply of good water. The defendant is only enabled to obtain and hold such property as will be instrumental to that end. Every seizure of such property, if allowed, would be a diminution of the power of defendant to perform its public duties in regard to public health and safety. It not only has no taxing power, but the city has no - power to give it any taxes, excerpt such as will enable it to pay its bonds, and “meet any deficiency in operating expenses/'’ Its propеrty is not subject to execution. It cannot be true that such an agency can be officially liable to suits for liabilities, where it has no legal means of raising funds for payment. As аlready suggested, unincorporated boards are not so liable; and there is no obvious reason why the mere fact of incorporation, with no change of pоwers, can change their liabilities.

We cannot consider, on this record, any other question but the liability of this board. We know of no other instance in which a public board сan be subjected to suit without means of raising money from the tax-payers. It is for the Legislature to determine how far, if at all, a body whose negligence, if it is so called, is imputed, and in no sense actual, shall be made subject to suit for the misconduct of its employés. There are many cases where such liability does not exist, except against thе immediate individual wrong-doer. The person injured is-not harmed any more where there are several persons liable than where there is only one. Imputed negligence is purely a question of public policy, and subject to legis*287lative regulation. No one can be bound by this record, except tbe immediate ‍‌‌​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌​​‌‌​‌‌​‌‌‌‌‌​‌‌​​​​‌‌‌‌​‌​‍parties to it, and it would be improper to go beyond it.

The judgment should be reversed, with costs, and without a new trial.

Chahplin, O. J., Morse and Long, JJ., concurred Grant, J., did not sit.