CHAPTER VI.

TORTS.

93. Corporate liability.-A municipal corporation may be liable to a civil action for a wrong committed or permitted by it causing private injury.

A municipality, being created by the state and endowed with certain functions for the public welfare, must perform those functions, or suffer indictment for its nonfeasance or misfeasance. Also, being a member of society, and empowered not only to exercise governmental functions, but also to own property and to deal with other corporations and with natural persons upon terms of equality, the municipality must respect the law not only in its contracts, but also in its non-contract relations with others; and where anyone suffers an injury by the neglect of the municipality to discharge any absolute duty, such person has an action against the municipality for the redress of the injury. 59

94. Governmental duties.-No action lies at common law against a municipal corporation for an injury resulting from the performance or non-performance by it of a purely governmental duty. In its strictly governmental character a municipality closely resembles a quasi-corporation, and in this aspect the law for it is practically the same as for a

59 Rowland v. Kalamazoo Supt. of Poor, 49 Mich. 553, 14 N. W. 494; Worden v. New Bedford, 131 Mass. 23, 41 Am. Rep. 185.

quasi-corporation as to the reason and extent of its exemption from liability for injuries suffered by others. It is performing a public function-discharging a governmental duty of the state for the public welfare; and out of this no action can arise unless given by statute.

60

Prominent among these governmental functions are: (1) The preservation of the public peace; (2) the preservation of the public health; (3) punishment of criminals; (4) preventing destruction by fire; (5) furnishing public education; (6) providing for the poor. Accordingly, a city is not liable for negligence or misconduct of its police officers, for they are state officers, rather than municipal; it is not liable for failure to disperse a mob or suppress a riot. Nor is a city liable for the misconduct of its health department, or any of its health officers, since sanitation is a public, rather than a municipal, duty. And, since the maintenance of public peace and enforcement of good order may require the punishment of evildoers by a municipality, it is the general doctrine that no action will lie against the corporation for the negligence or misconduct of its officers in the confinement or punishment of criminals. The courts agree that it is a governmental duty to stop conflagrations, and that a municipality cannot be held liable for either the negligence or misconduct of its fire department, or any member thereof; also, that a city cannot be

60 Dargan v. Mobile, 31 Ala. 469, 70 Am. Dec. 505, LEADING ILLUSTRATIVE CASES.

61 Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Taylor v. Owensboro, 98 Ky. 271, 56 Am. St. Rep. 361, 32 S. W. 948; Whitfield v. Paris, 84 Tex. 431, 15 L. R. A. 783, 31 Am. St. Rep. 69; Easterly v. Irwin, 99 Iowa 694, 68 N. W. 909.

held liable for the failure to provide adequate fire apparatus or sufficient water to extinguish fire. So, also, it is held that no action will lie against a municipality for injury resulting from the negligence or misconduct of any of its agents or employees in connection with its public school buildings.

No private action will lie against the city either for failure to enforce its own laws and ordinances,62 or from its action or non-action in any other matter resting in the discretion of the corporation as a governmental agency; and so damages have been refused for injuries resulting from forbidden fireworks,' from a public nuisance, for failure to build sewers or drains, from the adoption of a defective plan of sewerage, and from doing or failing to do any act not ministerial, but legislative or judicial in character.

63

95. Municipal duties.-A municipality, in the exercise of its purely municipal functions, is subject to the same rules of liability for torts as a private corporation.64

To illustrate, if a town or city maintains a structure which is a nuisance and causes special damage to private parties, or if in the performance of an authorized act the municipality invades any property right, the corporation is liable.

In an early New York case, 65 which has been quoted with approval both in England and America,

62 Fowle v. Alexandria, 3 Pet. 398 (U. S.).

63 But they were allowed in the leading case of Speir v. Brooklyn, 139 N. Y. 6, 21 L. R. A. 641, 36 Am. St. Rep. 664, 34 N. E. 727.

64 Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302, LEADING ILLUSTRATIVE CASES.

65 Bailey v. Mayor, etc., of New York, 3 Hill 531 (N. Y.), 38 Am. Dec. 669, LEADING ILLUSTRATIVE CASES.

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the doctrine of liability of a municipality in regard to its quasi-private real property was thus stated: "The citizen and the municipal body, in respect to their several possessions of real estate, stand upon a footing of equality. Neither is the privileged owner, and each must fulfill the same duties in respect to the other. If the grant is for the purpose of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchise had been conferred." This rule has been applied to a poor farm kept by a municipality, and also to a city cemetery yielding profit to the municipality. The same rule has also been applied to a municipality owning or controlling wharves, docks, and piers, and also where the city supplies water or light for compensation; and so where it maintains a public market. And this rule seems to apply to any business undertaken by a municipality under its charter powers. It is then a corporation organized for profit, and justly subject to the same rules as a private corporation.

96. Municipal performance of governmental duty. -A municipality, when charged in its corporate character with the performance of a municipal function in regard to governmental affairs, is, by the preponderance of judicial opinion, civilly liable for injuries resulting from misfeasance or nonfeasance of such municipal duty."

66

66 Mills v. Brooklyn, 32 N. Y. 489, LEADING ILLUSTRATIVE CASES. "**

The prevailing view of the courts in America is that for a failure to discharge the duty to keep streets in repair there is an implied common law liability for resulting injury resting upon every chartered municipality. After long contention in the federal courts this doctrine was at last authoritatively adopted by the Supreme Court of the United States in the leading case of Barnes v. District of Columbia; 67 and this view is also maintained in the states of Alabama, Colorado, the Dakotas, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Montana, Minnesota, Mississippi, Missouri, Nebraska, Nevada, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia. Under the lead of Massachusetts, where this subject has been often and ably considered,es the following states have adopted the contrary view: Arkansas, California, Connecticut, Maine, Michigan, New Hampshire, New Jersey, Rhode Island, South Carolina, Vermont, and Wisconsin. The Supreme Court of the United States recognizes its duty to follow the decisions of the highest court of each state in regard to municipal liability for tort therein."9

97. Reasonable care of streets.-The common law requires every municipal corporation to exercise reasonable care to make and keep its streets safe for all ordinary uses for which they are opened to the public. A municipality is not an insurer of public safety

67 91 U. S. 540, 23 L. Ed. 440.

68 Hill v. Boston, 122 Mass. 344, 23 Am. Dec. 332.

69 City of Detroit v. Osborne, 135 U. S. 492.