Manning J.:
The only question in this case is the liability of the city.
It was said on the arg-ument that the contractors, and not the city, are liable, as the sewer was being constructed by them under a contract with the city when the accident occurred.
[184]*184When, the relation of j^'incipal and agent, or master and servant exists, the rule of respondeat superior is applicable, but not when the relation is that of contractor only. In all ordinary transactions the relation of contractor excludes that of principal and agent, or master and seyvant. But there is not necessarily such a repugnance between them that they can not exist together. The difference between them is, that a contractor acts in his own right and for himself, whereas an agent or servant acts for and in the name of another.
In the case before us, both relations exist, and must necessarily exist from the peculiar character and circumstances of the case. The contractors not only acted for themselves, but at the same time as agents-for the city, under the power given it to construct sewers in its streets, which are public highways. They had no right to make the excavation they did, except as agents for the city; and had they been proceeded against by indictment for creating a public nuisance, they could not have justified in their own right, but would have had to justify as agents of the city under their contract.
It is also to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the • city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city — they belong to the city. The corporation and its corporators, the citizens, are alone interested in them — the outside public or people of the State at largo have no interest in them, as they have in the streets of the city, which are public highways.
The donee of such a power, whether the. donee be an individual or a corporation, takes it with the understand[185]*185ing — for such are tlie requirements of the law in the execution of the power — that it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures will be taken, in the execution of it, to guard against accidents to persons lawfully using the. highway at the time. He is individually hound for the performance of these obligations; he can not accept the power divested of them, or rid himself of their performance by executing it through a third person, as his agent. He may stipulate with the contractor for their performance, as was done by the city in the present case, but he can not thereby relieve himself of his personal liability, or compel an injured party to look to his agent instead of himself for damages.
It was also said on the argument, that the city was required by its charter to let the contract to the lowest bidder. I agree with counsel in this construction of the charter, when the work is done by contract, and the contract price exceeds $200, as it does in this case. But I do not see in it any intention of the Legislature to make the contractor only liable, and to relieve the city, which is benefited by the power, of its liability. The object of this provision in the charter is to protect the city against frauds too frequently concocted between faithless public functionaries and contractors, by which the public is sometimes made to pay much move for a thing than it is worth.
In Lesher v. The Wabash Navigation Company, 14 Ill. 85, the company v/as authorized by its charter to enter upon certain premises, and take therefrom material for the construction of its works by making compensation therefor. The company contracted with certain individuals to build a dam, the contractors agreeing to furnish the material,' which was taken by them from the land of the plaintiff, who claimed compensation of the company, and the court held the company liable, on the ground that the contrae[186]*186tors were the servants of the company. Catón J., in delivering the opinion of the court, says: “The contractors were none the less the servants of the company, because they were doing the work by contract, and for a stipulated price. The work was still done by the company, and under the authority of the charter. The privileges which the charter conferred upon the company to enable them to do the work, devolved upon the contractors for the same purpose. The very erection of the dam across the river was an obstruction to its navigation, and would have boon unlawful, but for the authority conferred by the charter. Ilad the Culberstons been prosecuted for damages occasioned by reason of such obstruction, they would immediately have sought protection under the charter.” * * * “Had a cause of action accrued to an individual by reason of the obstruction erected in the river, the company whose work it was would have been liable as much as if they had erected it with their own hands.”
In Bailey v. The Mayor, &c., of the City of New York, 3 Hill, 531, the action was for damages done the plaintiff by the breaking of a dam erected across the Croton River, to supply the city of New York with water. The defense was, that the action could not be maintained upon the principle of respondeat superior; 1st. because the water commissioners, who had charge of the construction of the woi’k, were appointed by the State and not by defendants; and, 2d, if they were to be regarded as having been appointed by defendants, that defendants, in building the dam, were acting in a public capacity, and like other public agents, were not responsible for the misconduct of those necessarily employed by them. Roth points were ruled against defendants. Nelson Ch. <T., in delivering the opinion of the court says: “The powers conferred by the several acts of the Legislature, authorizing the execution of this great work, are not, strictly and legally speaking, confer[187]*187red for the benefit of the public. The grant is a special, private, franchise, made as -well for the private emolument and advantage of the city, as for the public good. The State, in its sovereign character, has no interest in it. It owns no part of the work. -The whole investment under the law, and the revenue and profits to be derived therefrom, are a part of the private property of the city, as much so as the land and houses belonging to it situate within its corporate limits.”
This decision was afterwards affirmed in the Court of Errors, the Chancellor holding the defendants liable as the owners of the land on which the dam was erected, and other members of the court on the ground ^stated by Ch, J. Nelson in his opinion.
In Storrs v. The City of Utica, 17 N. Y. Reports, 104, which is a case of a sewer constructed in a public street under a contract with the city, and is in all respects analagous to the one before üs, the city was held liable. The liability of the city is put on the ground of its duty to keep its streets in repair, and a like duty was urged on the argument as the ground of liability in the present case.
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Manning J.:
The only question in this case is the liability of the city.
It was said on the arg-ument that the contractors, and not the city, are liable, as the sewer was being constructed by them under a contract with the city when the accident occurred.
[184]*184When, the relation of j^'incipal and agent, or master and servant exists, the rule of respondeat superior is applicable, but not when the relation is that of contractor only. In all ordinary transactions the relation of contractor excludes that of principal and agent, or master and seyvant. But there is not necessarily such a repugnance between them that they can not exist together. The difference between them is, that a contractor acts in his own right and for himself, whereas an agent or servant acts for and in the name of another.
In the case before us, both relations exist, and must necessarily exist from the peculiar character and circumstances of the case. The contractors not only acted for themselves, but at the same time as agents-for the city, under the power given it to construct sewers in its streets, which are public highways. They had no right to make the excavation they did, except as agents for the city; and had they been proceeded against by indictment for creating a public nuisance, they could not have justified in their own right, but would have had to justify as agents of the city under their contract.
It is also to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the • city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city — they belong to the city. The corporation and its corporators, the citizens, are alone interested in them — the outside public or people of the State at largo have no interest in them, as they have in the streets of the city, which are public highways.
The donee of such a power, whether the. donee be an individual or a corporation, takes it with the understand[185]*185ing — for such are tlie requirements of the law in the execution of the power — that it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures will be taken, in the execution of it, to guard against accidents to persons lawfully using the. highway at the time. He is individually hound for the performance of these obligations; he can not accept the power divested of them, or rid himself of their performance by executing it through a third person, as his agent. He may stipulate with the contractor for their performance, as was done by the city in the present case, but he can not thereby relieve himself of his personal liability, or compel an injured party to look to his agent instead of himself for damages.
It was also said on the argument, that the city was required by its charter to let the contract to the lowest bidder. I agree with counsel in this construction of the charter, when the work is done by contract, and the contract price exceeds $200, as it does in this case. But I do not see in it any intention of the Legislature to make the contractor only liable, and to relieve the city, which is benefited by the power, of its liability. The object of this provision in the charter is to protect the city against frauds too frequently concocted between faithless public functionaries and contractors, by which the public is sometimes made to pay much move for a thing than it is worth.
In Lesher v. The Wabash Navigation Company, 14 Ill. 85, the company v/as authorized by its charter to enter upon certain premises, and take therefrom material for the construction of its works by making compensation therefor. The company contracted with certain individuals to build a dam, the contractors agreeing to furnish the material,' which was taken by them from the land of the plaintiff, who claimed compensation of the company, and the court held the company liable, on the ground that the contrae[186]*186tors were the servants of the company. Catón J., in delivering the opinion of the court, says: “The contractors were none the less the servants of the company, because they were doing the work by contract, and for a stipulated price. The work was still done by the company, and under the authority of the charter. The privileges which the charter conferred upon the company to enable them to do the work, devolved upon the contractors for the same purpose. The very erection of the dam across the river was an obstruction to its navigation, and would have boon unlawful, but for the authority conferred by the charter. Ilad the Culberstons been prosecuted for damages occasioned by reason of such obstruction, they would immediately have sought protection under the charter.” * * * “Had a cause of action accrued to an individual by reason of the obstruction erected in the river, the company whose work it was would have been liable as much as if they had erected it with their own hands.”
In Bailey v. The Mayor, &c., of the City of New York, 3 Hill, 531, the action was for damages done the plaintiff by the breaking of a dam erected across the Croton River, to supply the city of New York with water. The defense was, that the action could not be maintained upon the principle of respondeat superior; 1st. because the water commissioners, who had charge of the construction of the woi’k, were appointed by the State and not by defendants; and, 2d, if they were to be regarded as having been appointed by defendants, that defendants, in building the dam, were acting in a public capacity, and like other public agents, were not responsible for the misconduct of those necessarily employed by them. Roth points were ruled against defendants. Nelson Ch. <T., in delivering the opinion of the court says: “The powers conferred by the several acts of the Legislature, authorizing the execution of this great work, are not, strictly and legally speaking, confer[187]*187red for the benefit of the public. The grant is a special, private, franchise, made as -well for the private emolument and advantage of the city, as for the public good. The State, in its sovereign character, has no interest in it. It owns no part of the work. -The whole investment under the law, and the revenue and profits to be derived therefrom, are a part of the private property of the city, as much so as the land and houses belonging to it situate within its corporate limits.”
This decision was afterwards affirmed in the Court of Errors, the Chancellor holding the defendants liable as the owners of the land on which the dam was erected, and other members of the court on the ground ^stated by Ch, J. Nelson in his opinion.
In Storrs v. The City of Utica, 17 N. Y. Reports, 104, which is a case of a sewer constructed in a public street under a contract with the city, and is in all respects analagous to the one before üs, the city was held liable. The liability of the city is put on the ground of its duty to keep its streets in repair, and a like duty was urged on the argument as the ground of liability in the present case. While I concur in the correctness of the conclusions to which the Court came in that case, I am unable to see how the execution of the power given to the city to construct sewers, is, of itself, an infringement of .its duty to keep its streets in repair. The duty and power must be so construed as to be consistent with each other, and not repugnant the one to the other.
In Lowell v. Boston and Lowell Railroad, 23 Pick. 24, defendant was held liable for an injury to an individual by falling into a deep cut made in a highway, in the construction of the company’s road by a contractor.
This case is commented on and approved by the same court in Hilliard v. Richardson, 3 Gray, 349. Thomas J,, after stating the facts in the case, says (p. 353) “Now it is plain that it is the corporation that are entrusted by [188]*188the Legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they can not escape this responsibility by a delegation of this power to others.’’
In Reedie v. The London and North Western Railway Co., 4 Exch. 244; Barry v. The City of St. Louis, 17 Mo. 121, and perhaps some other cases, the corporation was held not to be liable. The distinction does not appear to have been taken, in these cases, between ordinary contractors who, doing only what it is lawful for any one to do, act in their own right, and contractors under a special legislative power given for private purposes, rendering that lawful, in the donee of the power and those acting under him, which, would otherwise be unlawful. The judgment of the court below I think should be affirmed.
Martin Ch. J. and Christiancy J. concurred.