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gether, except when the act complained of is a judicial act or one involving the discretion of the officer.'

851. County Officers and their Liability.—County officers are frequently held not liable in civil actions for injuries sustained and caused by the neglect, want of care, or lack of skill of the officer. It has been held that the judges and justices of a county court were not liable for injuries to a traveler from the falling of a bridge constituting a part of the public highway and under the control of the court, even if they were guilty of gross negligence in failing to repair the bridge or give proper notice of its condition. In England no action lies against the county surveyor for damages resulting from the want of repair to a county bridge,' and a county treasurer in levying taxes has been held not liable for his failure to properly distribute the taxes between the real property of a mortgagor and the personal property of the mortgagee.'

852. County and Municipal Officers Compared.—The liability of a municipal officer as distinguished from that of a county officer, has been based upon the distinction between municipal corporation and county organizations, described as follows: “ Counties are local subdivisions of a state, created by the sovereign power of the state of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. The former organization is asked for, or at least assented to, by the people it embraces; the latter is superimposed by a sovereign and paramount authority. A municipal corporation proper is created mainly for the interest, advantage, and convenience of the special locality and its people. A county organization is created almost exclusively with a view to the policy of the state at large for purposes of political organization, and civil admiuis. tration in matters of finance, of education, of provisions for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organizations have a direct and exclu. sive reference to the general policy of the state, and are in fact but a branch of the general administration of that policy."" According to the principles of the common law, an action for indemnity cannot be maintained against the county court or against the judges individually for personal liability.

853. Liability of a Public Officer for the Acts of His Assistants.—Public officers of the government are not liable for acts of assistants and subordinates. Persons acting in the capacity of public agents, engaged in the public service and acting solely for the public benefit, although not strictly filling the character of officers or agents of the government, are also exempt from liability. Thus it has been held that overseers of highways intrusted


119 Amer. & Eng. Ency. Law 484.

? Wheatley v. Mercer, 9 Bush (Ky.), 704 (1873).

: M'Kinnon v. Penson, 8 Esch. 319

* State o. Harris, 89 Ind. 363.

5 Commissioners of Ham. Co. o. Mighels, 7 Ohio St. 109; Wheatley 0. Mercer, 9 Bush (Ky.) 704

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with the supervision of highways, discharging the duties gratuitously and being personally guilty of no negligence, are not responsible for an injury sustained by an individual through the negligence of workmen employed under them.' Trustees and commissioners acting gratuitously for the benefit of the public and intrusted with the conduct of public works are not liable for an injury occasioned by the negligence or unskillfulness of workmen and contractor necessarily employed by them in the execution of the work.

In keeping with this policy, a surveyor of highways elected by the town as a public and not a municipal officer, has been held liable in damages for his wrongful acts only when they are wanton, malicious, or improper acts in making or repairing highways in his district;' a superintendent of streets in a city has been held liable for damages resulting from his negligence or unskillfulness in repairing a sewer, notwithstanding his official capacity;* and a building inspector for nonperformance of his duties, which required him to inspect the buildings and see that they were erected as provided by ordinance. A clause in a contract for the construction of a sewer which guarantees the street superintendent and his sureties immunity from liability does not render the contract void, as it could not affect persons injured by the acts of the superintendent.'

854, State Employees Held Liable for Negligence.-A superintendent of repairs of the state canals has been held personally liable for damages sustained by an individual through the negligence of workman making repairs. To have an action for his failure to make repairs, it must be shown, however, that it was the superintendent's duty to make repairs, that he had funds to make them with, and that he was the officer to make them; but negligence and mismanagement alone need be shown for misconduct in making repairs.' The same has been held of an officer who was charged with the duty of keeping a street in repair.' So, too, when the state canal board let the repairs of the state canals by contract to a contractor invested with the powers of a non-judicial officer, the latter was held liable to one who sustained special damage from a neglect to do his duty and fix a lock-gate that was defective and out of repair. So if a contractor has been employed by a board of health to do a particular act, and does it negligently, he may be held liable for the consequences."



Meechem on Public Officers, $ 594; Holliday o. St. Leonard, 11 Com. B. (N. S.) 192.

Hall v. Smith, 2 Bing. 156; Harris v. Biker, 4 Maule & S. 27; Sutton v. Clarke, 6 Taunt. 34: Holliday v. St. Leonard, supra.

• Rowe o. Addison, 34 N. H, 306, 312, and cases cited.

* Rauer v. Lowe (Cal.), 107 Cal. 229, 40 Prc. Rep. 337 (1895).

? Shepherd o. Lincolu, 17 Wend. (N. Y.) 250.

8 Bennett v. Whitney, 94 N. Y. 302; Rector 0. Pierce, 3 Thomp. & C. (N. Y.) 416; and a bridge, People v. Adsit, 2 Hill (N. Y.) 619; cases cited, 19 Amer. & Eug. Eucy. Law 495.

* Butter v. Ashworth (Cal.), 36 Pac. Rep. 922.

* Merritt 0. McNally (Mont.), 36 Pac. Rep. 44.

9 Robinson v. Chamberlain. 34 N. Y. 389.

10 Arthy v. Coleman, 8 E. & B. 1092 (1857).

855. Public Officers and their Liability upon Contracts Executed for the State.—When a man acting in the capacity of a public officer makes contracts or signs obligations, there is a strong presumption of law that he does not intend to bind himself personaliy, nor that the contractor looks to him individually to be responsible. The government can act only through its officers and agents, and if they were held personally liable on the obligations they assume for the government, it might be difficult to secure the services of capable and responsible men. Public policy demands that they be exempt from liability.

A public officer must disclose the fact that he acts as an officer or agent, for if it be not known to the other party he will find himself bound. What was said of agents under parties, in chapter on Contracts, will hold for public officers.** Where officers of a public or municipal corporation acting officially enter into a contract under an innocent mistake of law, in which the other contracting party equally participates, with equal opportunities of knowledge, neither party at the time looking to personal liability, the officers are not personally liable; and the same rule applies to the officers of a public body which is not a corporation, such as a school district."

If a person sign his own name to a note followed with “ for the selectmen,”* he will be liable personally upon the obligation.'

An English case shows how strong this presumption is with some justices. It was held that a public officer is not responsible on any contract he makes in that capacity, and whenever his contract or agreement is connected with the subject fairly within the scope of his authority, it shall be intended to be made officially and in his public character, unless the contrary appears by an absolute and unqualified agreement to be personally liable. It was so held when a contractor had done extra work to preserve a public work not embraced in his contract, upon the assurance of a railway commissioner having charge of the work, that he would pay him ; and afterwards on

; application to him for pay, he said he would see the engineer in charge and have the amount put in the estimates, to be paid for by the government; it was held that the commissioner was not personally liable, the amount never having been paid. The court was divided, one side holding that in case of contracts with public agents the presumption was that the public faith of the government was relied upon, and that the commissioner in ordering the work acted within the scope of his authority as a railway commissioner aud did not incur any personal responsibility ; and the other side that the contract was verbal, and it should have been left to a jury as to whether the commissioner personally contracted and agreed to pay for the work."

1 Meechem on Public Officers, S 803.

4 Andover o. Grafton, 7 N. 11. 298. ? Nichols v. Moody, 22 Barb. (N. Y.) 6 Sumner o. Chandler, 2 Pugsley & B. 611.

(N. B.) 175. * Humphrey v. Jones, 71 Mo. 62 (1879).

* Set Secs. 29-42, 54, 149, and 178–180, supra.

As stated under the subject of Law of Contracts, if the work is done under a public statute or by virtue of a public act, and the contractor has equal means of knowledge as to the officer's authority, the officer acting in good faith will not be responsible if he has exceeded his authority. Individuals as well as courts are presumed to know and must ascertain the extent of the authority of public agents.'

856. Officer or Employee is Responsible for His False Representations.If the engineer or architect make false or fraudulent representations in respect to matters or work upon which he is engaged, he will be liable to parties who are misled by such representations, and suffer in consequence thereof whether the engineer be acting in the capacity of a professional engineer' or a public officer. It was so held when an architect ordered stones to complete a church the erection of which he was superintending. To get them, he represented or pretended that he was authorized to order the stones, and he was required to pay for them, notwithstanding the fact that they were used in the church edifice. Whether he made the

representations with intent to deceive, or knowing he had no authority, or under the bona fide belief that he had authority, in any case he was held liable.

857. Engineer's and Architect's Liability when Holding Office of Public Trust.-In the capacity of county surveyors, state or city engineers, city or government architects and commissioners, their relations to their work and to their patrons are different from those of a professional engineer or agent. When acting judicially or exercising discretionary powers, the public officer should be afforded the same protection as any other person, and he is so protected.' Even when his duties are purely ministerial, the requirements of a public officer are not so exacting as are those of a professional man. While the latter is responsible for an ordinary amount of skill and capacity for the work he solicits, the former, being elected or appointed, is not held upon an implied undertaking that he does possess a certain amount of skill and that he will exercise it. If it were required that such officer, elected or appointed, should be competent and that the incumbent should possess the requisite skill, many public offices would “go a begging, and the government service might be seriously crippled." Public policy is said to recommend that they should be exempt.

858. A City Engineer's Liability for Mistakes.--One of the most interesting and instructive cases reported in the books was one of a practical surveyor and city engineer who surveyed a lot for the owner at the latter's request, and made a mistake so that the owner's building was erected 2.2 feet upon his neighbor's lot. It was shown that the defendant was a surveyor and civil engineer, and that by ordinance of the city the city engineer was required to make surveys of lots within the city limits for private individuals when requested. The ordinance fixed the amount of fees he should receive from persons for whom the survey was made. The surveyor introduced evidence tending to show that he used due care and exercised a reasonable degree of skill in making the survey, and in fixing the boundaries to the lot, and that he believed the survey to be correct at the time it was made.

119 Amer. & Eug Ency. Law 500-501.
? Randell v. Trimer, 18 C. B. 786 (1856).

*Culver v. Avery, 7 Wend. (N. Y.) 380 ; Newmun o. Sylvester, 42 lud. 106.

* Randell v. Trimen, 18 C. B. 786 (1856).

5 East River Gas Light Co. v. Donnelly, 25 Hun 614; 19 Amer. & Eug. Ency. Law 484

The case was tried before a jury, and the judge was requested but refused to charge : “ That if the jury believed from the evidence that the defendant as city engineer or surveyor used due care and exercised . reasonable amount of skill in locating the boundary line to plaintiff's lot, the latter was not entitled to recover against the defendant surveyor, although the boundary lines were incorrectly established.” The jury found for the plaintiff, and the surveyor excepted and moved for a new trial.

In delivering its opinion the higher court said : “An ordinance of the city required the city engineer to survey and mark the boundaries of lots within the city when called upon so to do by private individuals, and prescribed his fees therefor ($2.50). He had no discretion to refuse when called upon to perform such services, but this did not constitute him an agent of the city for that purpose. Neither the city not any private person was bound by the surveys he might make when acting at the request of an individual. His report would not be conclusive as to the boundaries of the lot. His certificate could not be given in evidence as settling the boundary. He did not do it for the city. When the corporation makes public improvements and he acts under its direction, then he is its agent, and his act is the act of the city, and if any person is damaged thereby, it, and not he, is liable.” 1

Whether he acted as city engineer or as a professional surveyor, he was not bound to the exercise of more than reasonable care and skill. If he did the work in the former capacity, he was liable for negligence or fraud only; if in the latter, then he would not only be liable for negligence or fraud, but for want of skill. In neither capacity does he insure the correctness of his work. The law exacts that of no man. A man exercising the functions of an office must discharge his duties carefully, diligently, and honesty, and if he does so, he will not be liable for damages; but when a man holds himself out to the public as a professional man he engages to do more. He thereby agrees with those who employ him to do the work, not only carefully, diligently, and honestly, but skillfully. Absolute correctness is not to be the test of the amount of skill the law requires. A reasonable amount of skill is all he is bound to bring to the discharge of his duties. Upon the trial of the case, the manner in which the survey was made was a material question, and it was a question to be determined by the jury. They were to deter

McCarthy v. Bauer, 3 Kuns. 237 (1865); semble Sievers o. San Francisco (Cal.), 47 Pac. Rep. 687.

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