Goodloe v. City of Cincinnati.

to the objects of the grant. It was granted for public benefit, which must embrace private benefit and security.

"To open" means cutting and digging, when it applies to a road, or it means nothing. "To keep open," is another and different term entirely, and implies or gives no such power. It refers to the word "nuisance," strengthens and supports it; and embraces precisely what the terms "free from nuisance" will embrace, viz: to prevent the placing in the street, lane, or alley, etc., any impediment to the free and convenient public use of the same. The power to remove nuisances, is so necessary to the public, that in re. lation to public roads it may not only be exercised by all road of. ficers, but by every private citizen, who is like to be incommoded by the existence of the same. The term "impair," appended to "keep open," implies nothing more than to replace or amend the defects, occasioned by common use. There is, then, three distinct objects embraced by the act of incorporation : 1. A power to lay out a road. 2. A power to open or dig and cut it fit for use. 3. To keep it open, in repair, and *free of nuisance. The [511 first two are separate and distinct powers, both conferred upon the city by one section, not necessarily exercised at one and the same time, as constant practice has long since determined; under which, the city are every day opening, cutting, and digging out roads, which were laid out long before the act of incorporation. The act complained of, is the opening, cutting down, and digging away of a street. This the city had a right to do; but the statute which confers the right, requires them to pay the damages sustained.

To apprehend correctly the nature or character of the injury, it is required only that we look at the nature and object of the power under which it has been committed. The whole frame of social society rests on the position that single individuals will not and can not do all which their own prosperity and happiness require to be done. Experience has long since determined what portion of the public prosperity can be safely confided to single individual exertion. At this point, and at this point only, do we commence the exercise of public power, and that for the general benefit. We say, practically, that a single citizen is not rich enough, strong enough, or sufficiently munificent to make a road or canal. The public good requires both to be done. The public power is therefore exerted for their accomplishment. But this

Goodloe v. City of Cincinnati.

public power must be exerted at the public expense or contribution; if not, oppression and injustice, more than the public benefit, would be the result; and society, barely from the want of it, would dissolve by common consent. The constitution recognizes this principle, when it declares that private property shall be held subservient to public welfare: Provided, etc. Is there, or can there in justice be, any exceptions to the principle?

In a good government are any allowed to imagine a single case where the property of a citizen may be despoiled for the public benefit; and yet that citizen can be compelled to suffer without redress?

And yet the defendants contend that this is not such an injury as, by the principles of the constitution and laws of the land, can be redressed. In other words, if the plaintiff had erected no 512] house on his lot; had made no pavements or *improvements, and the defendants had then laid out and opened the road, he would have been entitled to damage. That is, if they had done the plaintiff but little injury he might have recovered; but having done him a great one, he is without redress.

The defendant also insists that there are authorities which abundantly support the position he takes against the plaintiff. The case of Callinder v. Marsh, 1 Pick. 418, is cited as one in point. It is true that the declaration in that is similar to the one filed in this case. Yet no demurrer was put in. There was a special plea, and the defendant escaped under the law of Massachusetts and the particular circumstances of the case. Perhaps the escape was a just and legal one, but the question was not made, or even referred to, viz: whether the law will sanction a recovery in any case, much less whether the laws of Ohio will sanction one.

The case in Pickering, like every other case, must be confined to the matter before the court. The defendant plead that he was an overseer, or commissioner of the street, and set forth the object and purpose for which the act complained of was done, which, as far as it can be gathered from the report, was the cutting down and leveling a hill-if not a nuisance, certainly not far short of one. The law, too, as far as we are informed, gave to the commissioner full power to cut, dig, level, and remove everything which was calculated to hurt, hinder, or incommode the use of the highway or street. The power under the law appears to be referred to in express terms, and whatever the commissioner might do ap

Goodloe v. City of Cincinnati.

pears to be named, and that, too, without saving any right to damages. This is certainly a very different case from the one before us. Damages are allowed, it would seem, where new space is taken into the street, or houses taken down, and a party injured thereby.

The argument for the plaintiff went much upon the ground that the power complained of was not exercised by the right officers. Whatever the argument may be, the court, it would seem, place the case on two points, as the turning ones in the cause: 1. The express and particular power given to the surveyor, which enabled him to cut, dig, level, grade, and remove any and every obstacle, or inconvenience in the way. 2. The proper and dis- [513 creet exercise of this power, as to which the court say, if the power be improperly or unnecessarily used, the aggrieved is entitled to damages. Here, then, is an unanswerable objection to the authority of the case for the defendants. This court have not, and can not have the facts before them on demurrer to the declaration, and until they are produced the court can not say whether the power applies to the case, or whether its exercise has been wanton or indiscreet, or not.

The declaration states that the acts complained of were unlawful and unjust, and done maliciously. The case just cited is, then, directly in point for the plaintiff; as are also the cases cited from 4 Sergeant & Rawle, 6.

In the case from Pickering it is not even contended that the general words, "repair or free of nuisance," give power to dig up or level down a whole street.

The question whether a corporation or individual is answerable for damages, when acting within the scope of authority, and in good faith, is not settled by any of the cases referred to. In 4 Sergeant & Rawle, above cited, the court refused to decide it. It can not arise in the case before us, inasmuch as the declaration avers improper motives, and the facts are not before the court.

By the COURT:

Whatever may have been the ancient doctrines, with regard to the liability of corporations, for wrongs done by their agents, courts have gradually departed from them, and adopted principles more congenial to the state and condition of the world. Corporations are established in our country for almost every concern of life

Smith v. City of Cincinnati.

political, pecuniary, and eleemosynary. They govern towns, construct roads, engage in manufactures, trade in money, build: churches, teach schools, and collect and distribute alms. In all these operations they act by agents. Where benefits are derived, the corporation enjoys them. Where injury is inflicted, through their means, they ought to be responsible for it.

When the corporation of a town grades the streets, the object is 514] the benefit of the whole town. If an individual is injured, *it is right he should have redress against all upon whose account the injury was perpetrated. There is no justice in sending him to seek redress from an irresponsible agent. There is no propriety in compelling the injured party to look for compensation to the mere agent, who acted in good faith, according to the directions of his employers. And, when the agent is made responsible, leave him, for indemnity, to the discretion of the corporation.

All corporations act by agencies, and those agencies are com posed of men who may be influenced by reprehensible motives, or tempted to do acts not warranted by law. In this case, the act is charged in the declaration to have been illegal and malicious. When a corporation acts illegally and maliciously, we conceive it ought to be made directly responsible. Such is the plain dictate of justice, and we see no technical rule of law that forbids us to act upon it.

The demurrer is overruled.

JESSE SMITH v. CITY OF CINCINNATI.

THIS cause was adjourned from Hamilton county, and stood upon the same principle with that of Goodloe v. The City, except that in this case the act complained of was not charged in the declaration as malicious.

Demurrer overruled.

NOTE. Both of the foregoing cases were remanded back to Hamilton county, with leave to withdraw the demurrer and plead. This was accordingly done; and the causes were tried, at the last term of the Supreme Court, before Judges HITCHCOCK and WRIGHT, on the plea of general issue. In Smith's case, there was a verdict of two hundred and fifty dollars damages for the plaintiff. In Goodloe's case, there was a verdict for one hundred dol lars damages. In both cases, final judgment was rendered for the plaintiffs.

APPENDIX.

[The following case, decided in the Supreme Court of Hamilton county, May term, 1831, before Judges HITCHCOCK and WRIGHT, is reported at the earnest request of the parties, and by permission of the judges.]

PRICE AND OTHERS V. THE METHODIST EPISCOPAL CHURCH AND OTHERS.

Payment of money for burial, in the burial ground of the Methodist Episcopal Church, or burying in virtue of membership, gives no right to control the church in the appropriate use of its grounds.

Lands obtained by religious societies, can not be held as set apart for a burial ground, under the statute, unless actually surveyed, described, and platted. Quare, as to the record of the plat.

Lands conveyed to trustees of the Methodist Episcopal Church, for the use of that church, according to its rules and discipline, the trustees can not create any individual or public right, inconsistent with the use prescribed by the discipline.

HAMILTON County Supreme Court, May Term, 1831.

The bill states that a number of individuals, in Cincinnati, associated themselves together, as Methodists; and in 1807 purchased lots of ground, in Cincinnati, for the accommodation and convenience of themselves and others, for a place of worship and burial; and shortly after the purchase, at their joint expense, erected a place of worship, and opened a burial place, in which the members of the society had liberty to bury their dead, free of expense; and others had leave, also, to bury their dead there, on paying certain burying fees to the trustees of said society; and that from thence, hitherto, the said ground has been used as a burying ground. That the complainants and others, some of