any individual or body of persons upon whom the like special franchises had been conferred.1

Suppose the legislature, instead of the franchise in question, had conferred upon the defendants banking powers, or a charter for a railroad leading into the city, in the usual manner in which such powers are conferred upon private companies, could it be doubted that they would hold them in the same character, and be subject to the same duties and liabilities? I cannot doubt but they would. These powers, in the eye of the law, would be entirely distinct and separate from those appertaining to the defendants as a municipal body. So far as related to the charter thus conferred, they would be regarded as a private company, and be subject to the responsibilities attaching to that class of institutions. The distinction is well stated by the Master of the Rolls in Moodalay v. East India Co.,2 in answer to an objection inade by counsel. There the plaintiff had taken a lease from the company, granting him permission to supply the inhabitants of Madras with tobacco for ten years. Before the expiration of that period, the company dispossessed him, and granted the privilege to another. The plaintiff, preparatory to bringing an action against the company, filed a bill of discovery. One of the objections taken by the defendants was, that the removal of the plaintiff was incident to their character as a sovereign power, the exercise of which could not be questioned in a bill or suit at law. The Master of the Rolls admitted that no suit would lie against a sovereign power for anything done in that capacity; but he denied that the defendants came within the rule. They have rights,' he observed, as a sovereign power; they have also duties as individuals; if they enter into bonds in India, the sums secured may be recovered here. So in this case, as a private company, they have entered into a private contract, to which they must be liable.' It is upon the like distinction that municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same

1 Citing Dartmouth College r. Woodward, 4 Wheat 668, 672; Philips v. Bury, 1 Ld. Raym. 8, 2 T. R. 352; Allen v. McKeen, 1 Sumn. 297; People v. Morris, 13 Wend. 331-338, 2 Kent's Com. 275 (4th ed.); United States Bank v. Planters' Bank, 9 Wheat. 907; Clark . Corp. of Washington, 12 Wheat. 40; Moodalay r. East India Co, 1 Brown's Ch. R. 469. See, in addition to the cases cited by the court, Touchard v. Touchard, 5 Cal. 306; Gas Co. v. San Francisco, 9 Cal. 453;

6

Richmond v. Long, 17 Gratt. 375; Atkins v. Randolph, 31 Vt. 226; Small v. Danville, 51 Me. 359; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; Philadelphia v. Fox, 64 Pa. St. 169; Detroit v. Corey, Mich. 165; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; Western College v. Cleveland, 12 Ohio, N. s. 375; Hewinson v. New Haven, 37 Conn. 475, 9 Am. Rep. 342; People v. Batchelor, 53 N. Y. 128; Welsh v. St. Louis, 73 Mo. 71. 2 1 Brown's Ch. R. 469.

light as individual owners and occupiers, and dealt with accordingly. As such, they are bound to repair bridges, highways, and churches; are liable to poor rates; and, in a word, to the discharge of any other duty or obligation to which an individual owner would be subject."1

In Storrs v. City of Utica,2 it was held that a city, owing to the public the duty of keeping its streets in a safe condition for travel, was liable to persons receiving injury from the neglect to keep proper lights and guards at night around an excavation which had been made for the construction of a sewer, notwithstanding it had contracted for all proper precautions with the persons executing the work. And in the City of Detroit v. Corey the corporation was held liable in a similar case, notwithstanding the work was required by the charter to be let to the lowest bidder. Manning, J., in speaking to the point whether the contractors were to be considered as the agents of the city, so that the maxim respondeat superior should apply, says: "It is 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 citzens, are alone interested in them; the outside public or people of the State at large 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 understanding

for such

are the requirements of the law in the execution of the power

12 Inst. 703; Thursfield v. Jones, Sir T. Jones, 187; Rex v. Gardner, Cowp. 79; Mayor of Lynn v. Turner, Cowp. 87; Henley . Mayor of Lyme Regis, 5 Bing. 91; s. c. in House of Lords, 1 Bing. N. C. 222. See also Lloyd v. Mayor, &c. of New York, 5 N. Y. 369; Commissioners v. Duckett, 20 Md. 468. The corporation of the City of New York possesses two kinds of powers, -one governmental and public, and, to the extent they are held and exercised, is clothed with sovereignty; the other private, and, to the extent they are held and exercised, is a legal individual. The former are given and

used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a municipal government, and while in the exercise of the latter, is a corporate, legal individual." Ibid., per Foot, J. See upon this point also Western Fund Saving Society v. Philadelphia, 31 Pa. St. 175; Louisville v. Commonwealth, 1 Duvall, 295; People v. Common Council of Detroit, 28 Mich. 228; ante, pp. 335–337, and notes. 2 17 N. Y. 104.

89 Mich. 165. Compare Mills v. Brooklyn, 32 N. Y. 489; Jones v. New Haven, 34 Conn. 1.

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 bound for the performance of these obligations; he cannot accept the power divested of them, or rid himself of their performance by executing them 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 cannot thereby relieve himself of his personal liability, or compel an injured party to look to his agent, instead of himself, for damages." And in answer to the objection that the contract was let to the lowest bidder, as the law required, it is shown that the provision of law to that effect was introduced for the benefit of the city, to protect it against frauds, and that it should not, therefore, relieve it from any liability.1

1 See also Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; Grant v. City of Brooklyn, 41 Barb. 381; City of Buffalo v. Holloway, 14 Barb. 101, and 7 N. Y. 493; Lloyd v. Mayor, &c. of New York, 5 N. Y. 369; Delmonico v. Mayor, &c. of New York, 1 Sandf. 222; Barton v. Syracuse, 37 Barb. 292; Storrs v. Utica, 17 N. Y. 104; Springfield v. LeClaire, 49 Ill. 476; Blake v. St. Louis, 40 Mo. 569; Baltimore. Pendleton, 15 Md. 12; St. Paul v. Seitz, 3 Minn. 297; Denver v. Rhodes, 9 Col. 554, 13 Pac. 729; Wilson v. Wheeling, 19 W. Va. 323; Birmingham v. McCary, 84 Ala. 469, 4 So. 630; Logansport v. Dick, 70 Ind. 65; Brasso v. Buffalo, 90 N. Y. 679; Turner v. Newburgh, 109 N. Y. 301, 16 N. E. 344; Circleville v. Neuding, 41 Ohio St. 465; Jacksonville v. Drew, 19 Fla. 106; Joslyn v. Detroit, 74 Mich. 458, 42 N. W. 50; McCoull v. Manchester, 85 Va. 579, 8 S. E. 379; also numerous cases collected and classified in Dillon on Municipal Corporations. But this doctrine seems not to obtain in Pennsylvania: School Dist. v. Fuess, 98 Pa. St. 600; Susquehanna Depot v. Simmons, 112 Pa. St. 384, 5 Atl. 434. If the injury arises from something not collateral to the work, the city is not liable, as where horses are frightened by the noise of blasting in an adjoining street: Herrington v. Lansingburgh, 110 N. Y. 145, 17 N. E. 728; or a person is injured by the blasting. Blumb v. Kansas City, 84 Mo. 112; Murphy v. Lowell, 128

Mass. 396. Compare Joliet v. Harwood, 86 Ill. 110. A municipal corporation is not liable for neglect to devise and construct a proper system of drainage. Carr v. Northern Liberties, 35 Pa. St. 324. See ante, pp. 300, 301, and notes. Cities are not liable for the illegal conduct of officials in the discharge of duty. Dillon, §§ 774-778, and cases cited; Grumbine v. Washington, 2 McArthur, 578.

The following are some of the more recent cases in which the liability of municipal corporations for neglect of public duties has been considered :—

For nuisance in highway, sewer, &c. : Todd v. Troy, 61 N. Y. 506; Masterton v. Mt. Vernon, 58 N. Y. 391; Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592; Woodward v. Worcester, 121 Mass. 245; Chicago v. Brophy, 79 Ill. 277; Chicago v. O'Brennan, 65 Ill. 160; Wilkins v. Rutland, 61 Vt. 336, 17 Atl. Rep. 735; Kibele v. Philadelphia, 105 Pa. St. 41; Duffy v. Dubuque, 63 Iowa, 171, 18 N. W. 900; Kunz v. Troy, 104 N. Y. 344, 10 N. E. 442; Langan v. Atchison, 35 Kan. 318, 11 Pac. 38. See Stock v. Boston, 149 Mass. 410, 21 N. E. 871; Ray v. St. Paul, 40 Minn. 458, 42 N. W. 297. For invasion of private right or property Sheldon v. Kalamazoo, 24 Mich. 383; Babcock v. Buffalo, 56 N. Y. 268; Lee v. Sandy Hill, 40 N. Y. 442; Phinizy v. Augusta, 47 Ga. 260; Helena v. Thompson, 29 Ark. 569; Kobs v. Minneapolis, 22 Minn. 159. For negligent construction

We have not deemed it important, in considering the subject embraced within this chapter, to discuss the various questions which might be suggested in regard to the validity of the proceedings by which it is assumed in any case that a municipal corporation has become constituted. These questions are generally questions between the corporators and the State, with which private individuals are supposed to have no concern. In proceedings where the question whether a corporaton exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the State as such. Such a question

should be raised by the State itself, by quo warranto or other direct proceeding. And the rule, we apprehend, would be no

different, if the constitution itself prescribed the manner of incorporation. Even in such a case, proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the State; and private parties could not enter upon any question of regularity. And the State itself may justly be precluded, on the principle of estoppel, from raising such an objection, where there has been long acquiescence and recognition.1

kins, 33 Mich. 28; Worley v. Harris, 82 19 N. Y. 41; and Lanning v. Carpenter, Ind. 493.