City of Detroit v. Blackeby

21 Mich. 84, 1870 Mich. LEXIS 77

Opinions

Campbell, Ch. J.

The principal question in this case is whether the city of Detroit is liable to a private action by an injured party, for neglect to keep a cross-walk in repair. The other questions involve an inquiry into the circumstances which would go to modify any such liability in the present case.

There has been, but one case in this State, decided by this Court, where the claim for damages arose purely out of a neglect to repair. In Dewey v. The City of Detroit, 15 Mich. R., 307, such a suit was brought, but it did not ■call for a decision upon the main question. In Township of Niles v. Martin, 4 Mich. R., 557, it was held there was no such liability in a township, and this case was followed by us at the last term in Township of Leoni v. Taylor. It was held in Larkin v. Saginaw County, 11 Mich. R., 88, that a county could not be sued for directing a bridge to be built on a plan that was defective and injurious. In Pennoyer v. Saginaw City, 8 Mich. R., 534, a city was held liable for continuing a private nuisance which it had created; and in Detroit v. Corey, 9 Mich. R., 165, the city of Detroit was held liable for an accident caused by leaving an excavation in a street for a sewer imperfectly guarded. In Dermont v. Detroit, 4 Mich., 435, it was held the city was not liable for the flooding of a •cellar by a sewer into which it drained.

None of those cases presented the precise question raised here, and we are required, therefore, to consider it as an •original inquiry, except in so far as it may be affected by :any principles involved in the cases already decided.

The streets of Detroit are }3ublic highways, designed .like all other roads, for the benefit of all people desiring to travel upon them. The duty or power of keeping them in proper condition is a public and not a private duty, and it is an office for the performance of which there is no •compensation given to the city. Whatever liability exists to perform this service to the public, and to respond for any failure to perform it, must arise, if at all, from the implication that is claimed to exist in the nature of such .a municipality.

There is a vague impression that municipalities are bound in all cases to answer in damages for all private injuries from defects in the public ways. But the law in this State, and in most parts of the country, rejects this as a general proposition, and confines the recovery to causes of grievance arising under peculiar circumstances. If there is any ground for recovery here, it is because Detroit is incorporated. And it depends therefore on the consideration whether there is anything in the nature of 'incorporated municipalities like this which should subject them to liabilities not enforced against towns or counties. The cases which, recognize the distinction apply it to villages and cities alike.

It has never been claimed that the violation of duty to the public was any more reprehensible in these corporations than outside of them; nor that there was any more justice in giving damages for an injury sustained in a city or village street than for one sustained outside of the corporate bounds. The private suffering is the same, and the official negligence may be the same. The reason, if it exists, is to be found in some 'other direction, and can only be tried by a comparison of some of the classes of authorities which have dealt with the subject in hand.

It has been held that corporations may be liable to suit for positive mischief produced by their active misconduct, and not from mere errors of judgment. And while the application of this rule may have been of doubtful correctness in some cases, the rule itself is at least intelligible, and will cover many decisions. It was substantially upon this principle that the case of Detroit v. Corey was rested by the Judges who concurred in the conclusion. Thayer v. the City of Boston, 19 Pick., 511, was a case of this kind, involving a direct encroachment on private property. The Rochester White Lead Co. v. City of Rochester, 3 N. Y., 465, where a natural water-course was narrowed and obstructed by a culvert entirely unfit for its purpose and not planned by a competent engineer, is put upon this ground in the decision of Hickok v. Plattsburgh, 16 N. Y., 161. Lee v. Village of Sandy Hill, 40 N. Y., 442, involved a direct trespass.

The injuries involved in these New York and Massachusetts cases referred to were not the result of public nuisances, but were purely private grievances. And in several cases cited on the argument, the mischiefs complained of were altogether private. The distinction between these and public nuisances or neglects has not always been observed, and has led to some of the confusion which is found in the authorities.. In all the cases involving injuries from obstructions to drainage, the grievance was a private nuisance. In case of Mayor v. Furze, 3 Hill R., 612, which has been generally treated as a leading case, the damage was caused by water backing up from sewers not kept cleared out as they should have been. Barton v. Syracuse, 36 N. Y., 54 involved similar questions, as did also Childs v. Boston, 4 Allen, 41. These cases do not .harmonize with Dermont v. Detroit, but they rest on the assumption that, having constructed the sewers voluntarily for private purposes, and not as a public duty, the obligation was complete to keep them from doing any mischief, as it would be in private persons. And in Bailey v. Mayor, 3 Hill R., 538, and 2 Denio, 433, the mischief was caused by the breaking away of a dam connected with the Croton water-works, whereby the property of the plaintiff vas destroyed. In this latter case the judgment rested entirely upon the theory that the city held the water-works as a private franchise and possession, and subject to all the responsibilities of private ownership. The .Judges, vbo regarded it as a public work, held there was no liability. In Conrad v. Trustees of Ithaca, 16 N. Y., 159, the facts were substantially like those in Rochester White Lead Co. v. City of Rochester, and the decision was rested on the principles of that case. Denio, C. J., who delivéred the opinion of the Court, stated his own opinion to be that there was no liability, but that he regarded the recent decision in another case referred to as establishing it. And in Livermore v. The Freeholders of Camden, 29 N. J., 246 (and on Error, 2 Vroom, 507), under a statute like that which was construed by this Court in Township of Leoni v. Taylor, it was decided that while a passenger over a bridge could sue for injuries, yet where property adjacent was injured by the bridge there was no remedy. Upon any theory which sustains the liability for such grievances, however, it is manifest that the injury is not a public grievance in any sense, and does not involve a special private, damage from an act that at the same time affects injuriously the whole people.

Another class of injuries involves a public grievance specially injuring an individual, arising out of some neglect or misconduct in the management of some of those works which are held in New York to concern the municipality in its private interests, and to be in law the same as private enterprises. It is held that in constructing sewers, and similar works, which can only be built by city direction, if the streets are broken up and injuries happen because no • adequate precautions are taken, the liability shall be enforced as springing from that carelessness, and not on the ground of non-repair of highways. Lloyd v. Mayor, 5 N. Y., 369, and Storrs v. Utica, 17 N. Y., 104, were cases of this kind. In these cases, as in the case of Detroit v. Corey, the streets were, held to have been broken up by the direct agency of the city authorities, and the negligence which caused the injury was held to be negligence in doing a work requiring special care, — or, in other words, — the wrong complained of was a misfeasance and not a mere omission. The case of Weet v. Brockport, 16 N. Y., 161, was also a case where Selden, J., who reviews and discusses all the decisions, said it was not necessary to consider the wrong complained of as a mere neglect of duty, because it was in itself a dangerous public nuisance created by the corporation, and not in any sense a nonfeasance. In Delmonico v. Mayor, 1 Sandf., 226, the injury, though in a highway, consisted in crushing in a vault under the street, by improperly piling earth upon it while excavating for a sewer, and this was also a direct misfeasance.

The cases in which cities and villages have been held subject to suits for neglect of public duty, in not keeping highways in repair, where none, of the other elements have been taken into the account, are not numerous, and all which quote any authority profess to rest especially upon the New York cases, except where the remedy is statutory. It will be proper, therefore, to notice what those cases are, and upon what basis they are supported. The only cases of this kind decided in the courts of last resort, that we have been able to find, are Hutson v. Mayor, 9 N. Y. 163; Hickok v. Plattsburgh, 16 N. Y., 161; and Davenport v. Ruckman, 37 N. Y., 568. This latter case resembles the one before us very closely in its leading features, and would furnish a very close precedent. It is not reasoned out at all, but refers for the doctrine to the other two cases, and to an authority in 18 N. Y., which does not relate to municipal liability. The case of Hutson v. Mayor does not attempt to find any distinct foundation for the right of action, but refers to the cases in 8 Hill and the Rochester White Lead Co. case, and Adsit v. Brady, 4 Hill, 630, as having established the liability. This latter case is disapproved in Weet v. Brockport, and the others are sustained there on the ground of misfeasance. And as JudgeDenio, when the decisions in 16 N. Y. were made, stated. that he had not supposed there was any corporate liability for mere neglect to keep ways in repair, it is quite possible that the case of Hutson v. Mayor was regarded as-distinguishable. The circumstances were very aggravated, as it would seem that the city had left a road too narrow to accommodate a carriage, without any paving and without protection against the danger of falling down a deep embankment into a railroad excavation. The report is not-as full as could be desired upon the precise state of facts-In the Supreme Court, where the Judges differed in opinion, (two dissenting), the liability seems, from the view taken of that case by Judge Selden, to have rested on the ground that there had been a breach of private duty, and not of duty to the public. If this was the view actually taken, it would not bring the case within the same category with the other road cases. But the case of Weet v. Brockport, 16 N. Y., 161, is recognized as the one in which the whole law has been finally settled, and it’is upon the grounds-there laid down, that the liability is now fixed in New York. The elaborate opinion of Judge Selden, which was' adopted by the Court of Appeals, denies the correctness of the dicta in some of the previous cases, and asserts the liability to an action solely upon the ground that the franchises granted to municipal corporations are in law a sufficient consideration for an implied promise to perform-with fidelity all the duties imposed by the charter; — and! that the liability is the same as that which attaches against-individuals who have franchises in ferries, toll-bridges, and the like. The principle, as he states it, is: — “ That whenever an individual, or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do; certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases, the contract made with the sovereign power is deemed to enure to the benefit of every individual interested in its performance.”

In order to get at the true ground of liability, the opinion goes on to determine, first, whether townships and other public bodies, not being incorporated cities or villages, are liable, and shows conclusively that they are not. And the Court arrive at this conclusion, not on the basis of an absence of duty or an absence of means, but because their duties are duties to the public, and not to individuals. To show this, full citations are made from the English cases, which were cited before us, and also from the American 'cases. The case of Young v. Com’rs of Roads, 2 Nott & McCord, 537, is cited approvingly, and the following language is quoted as expressing the correct idea:— “When an officer has been appointed to act, not for the public in general, but for individuals in particular, and from each individual receives an equivalent for the services Tendered him, he may be responsible, in a private action, for a neglect of duty; but when the officer acts for the public in general, the appropriate remedy for his neglect of duty is a public prosecution.” In another part of the opinion, Sheriffs are given as examples of the former, and Highway Commissioners of the latter class of officers. The cases cited do not all require the consideration for the services to come immediately from individuals, but they all require the services to be due to individuals, and not to the public, and to spring from contract. The English cases are reviewed in the Mersey Dock cases, and exemplify this. Thus the liability to repair a sea-wall is in favor of those who own the property adjacent; the liability to keep docks safe of access, in favor of those who haye occasion to require their use upon the customary terms ; the liability to keep toll-bridges safe, in favor of those who use them. But there is no instance of liability where the public is interested directly. And in those cases where the obligation rests upon the consideration of corporate franchises, the duty has also been towards individuals, although the consideration moved from the State. The decisions upon this sustain the views of Judge Selden concerning his premises, but there is some difficulty in reaching his -conclusions through them.

. It is admitted everywhere, except in a single case in Maryland, that there is no common-law liability against ordinary municipal corporations such as towns and counties, and that they cannot be sued except by statute.

It has also been uniformly held in New York, as well as elsewhere, that public officers, whose offices are created by act of the Legislature, are in no sense municipal agents, and that their neglect is not to be regarded as the neglect of the municipality, and their misconduct is not chargeable against it unless it is authorized or ratified expressly or by implication. This doctrine has been applied to cities as well as to all other corporations. Barney v. Lowell, 98 Mass. R., 570; White v. Phillipston, 10 Metc., 108; Mower v. Leicester, 9 Mass., 247; Bigelow v. Randolph, 14 Gray, 541; Walcott v. Swampscott, 1 Allen, 101; Young v. Com’r of Roads, 2 Nott & McCord, 537; Pack v. Mayor, 4 Seld., 222; Martin v. Mayor of Brooklyn, 1 Hill, 545; Bartlett v. Crozier, 17 J. R., 438; Morey v. Newfane, 8 Barb., 645; Eastman v. Meredith, 36 N. H., 284; Hyde v. Jamaica, 27 Vt., 443; Lorillard v. Town of Monroe, 11 N. Y. 392; Mitchell v. Rockland, 52 Maine, 118.

And the numerous cases which exonerate cities from liability for not enforcing their police laws, so as to prevent damage, rest upon a very similar basis. —Fowle v. Alexandria, 3 Peters R., 398; Levy v. Mayor, 1 Sandf. S. C., 465; Prather v. Lexington, 13 B. Monroe, 559; Howe v. New Orleans, 12 La. Ann., 481; Western Reserve College v. Cleveland, 12 Ohio St., 375; Brinkmeyer v. Evansville, 29 Ind., 187; Griffin v. Mayor, 9 N. Y., 456.

In the case of Eastman v. Meredith, 86 N. H, 284, the distinction between the English and American municipal corporations is clearly defined. The former often hold special property and franchises of a profitable nature, which they have received upon conditions, and which they can hold by the same indefeasible right with individuals. But American municipalities hold their functions merely as governing agencies. They may own private property, and transact business not strictly municipal, if allowed by law to do so, just as private parties may, and with the same liability. But their public functions are all held at sufferance, and their duties may be multiplied and enforced at the pleasure of the Legislature. They have no choice in the matter. They have no privileges which cannot be taken away, and they derive no profit from their care of the public ways, and the execution of their public functions. They differ from towns only in the extent of their powers and duties bestowed for public purposes, and their improvements are made by taxation, just as they are made on a smaller scale in towns and counties.

In the case of Bailey v. Mayor it was intimated by Judge Nelson that the State could not compel the city to accept its charter, and in Child v. Boston, 4 Allen 41, the fact that the sewerage system had been left, to vote and been accepted, was held to make it a private and not a public matter. The sewer cases have, in several instances, gone upon this latter notion. It is not necessary to discuss that question here, because streets are not private, and because, in this State, at least, no municipality can exercise any powers except by State permission, and every municipal charter is liable to be amended at pleasure. The charter of Detroit has undergone the most radical changes.

It is impossible to sustain the proposition that these charters rest in contract. And it is impossible, — as Judge Selden demonstrates, to find legal warrant for any other ground for distinguishing the liability of one municipal body from that of another. There is no basis in authority for any such distinction concerning the consideration on which their powers are granted, and it rests upon simple assertion. And yet the decision stands in New York as authority for all that is claimed here, because, although in the case in which the opinion was given in the Supreme Court, it was not called for, yet in the ease of Hickok v. Trustees of Plattsburgh, in which it was adopted as the opinion of the Court of Appeals, the mischief was a mere neglect to repair, where the street had been obstructed by an individual excavation for a short time.

It is impossible to harmonize the decision with the previous decisions exempting corporations from responsibility because public officers were not their agents. It is no easier to sustain it in the face of the uniform decisions denying liability for failure to enforce their police regulations. The authorities which make corporations liable on the ground of conditions attached to their franchises, go very far towards compelling them to respond as absolutely bound to prevent mischief. And the general reasoning on which the most of the opinion rests, and the criticisms made upon former decisions, — which, it is asserted, went altogether too far in creating liability, — all are designed to show, and do show, very forcibly that simply as municipal corporations, — apart from any contract theory, — no public bodies can be made responsible for' official neglect involving no active misfeasance.

There is no such distinction recognized in the law elsewhere. In City of Providence v. Clapp, 17 How. R., 161, the United States Supreme Court, through Judge Nelson, held that cities and towns were alike in their responsibility and in thbir immunity. In County Commissioners of Anne Arundel v. Duckett, 20 Md., 468, a county was held responsible to the fullest extent. In New Jersey, in Freeholders of Sussex v. Strader, 3 Harr. (18 N. J.), 108; Cooley v. Freeholders of Essex, 27 N. J., 415; Livermore v. Freeholders of Camden, 29 N. J., 245, and 2 Vroom. (31 N. J.), 507; and Pray v. Mayor of Jersey City, 32 N. J., 394, the cases were all rested on the same principles, and cities were exonerated because towns and counties were. The suggestion of Judge Selden has been caught at by some courts since the decision, and has been carried to its legitimate results, as in Jones v. New Haven, 34 Conn., 1, where the damage was caused by a falling limb of a tree. But, so far as we have seen, even the cases which are decided on this ground, do not hold that towns dp not receive their powers upon a consideration as well as cities. That question still remains to be handled in those courts.

It is utterly impossible to draw any rational distinction on any such ground. It is competent for the Legislature to give towns and counties powers as large as those granted to cities. Each receives what is supposed to be necessary or convenient, and each receives this because the good government of the people is supposed to require it. It would be contrary to every principle of fairness to give special privileges to any part of the people and deny them to others; and such is not the purpose of city charters. In England tbe burgesses of bqroughs and cities had very important and valuable privileges of an exclusive nature, and not common to all the people of the realm. The charters were grants of privilege and not mere government agencies. Their free customs and liberties were put by the great charter under the same immunity with private freeholds. But in this State, and in this country generally, they are not placed beyond legislative control. The Dartmouth College case, which first established charters as contracts, distinguished between public and private corporations, and there is no respectable authority to be found anywhere, which holds that either offices or municipal charters generally involve any rights of property whatever. They are all created for public uses and subject to public control.

We think that it will require legislative action to create any liability to private suit for non-repair of public ways. Whether such responsibility should be created, and to what extent and under what circumstances it should be enforced, are legislative questions of importance and some nicety. They cannot be solved by courts.

Judgment should be reversed with costs.

Christiancy and Graves, JJ. concurred.