79 Mich. 281 | Mich. | 1890
Plaintiff 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 the 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 plaintiff 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 created to subserve certain important municipal purposes, has been made
The 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, to 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 to 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 consider 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 and 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 and 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 approval 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 the 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 on the
It may be important, in this connection, to consider the legal- position of this board in its functions, While 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 has 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 agencies 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 change its character in the performance
It was held in Detroit v. Blaclceby, 21 Mich. 84, that cities and municipalities are not usually responsible in damages for the neglect 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 engaged 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 responsible 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 defendant 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 people for all the strict purposes of local government, and has power to raise its own revenue. The Legislature, in requiring towns, cities, and villages
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 can 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 the 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
The judgment should be reversed, with costs, and without a new trial.