Hill v. City of Boston.

The earlier cases in the Supreme Court of the United States contain nothing inconsistent with our own decisions upon this subject. In Fowle v. Alexandria, 3 Pet. 398, 409, Chief Justice MARSHALL pointed out that the general rule "that money corporations, or those carrying on business for themselves, are liable for torts," was not equally applicable to "a legislative corporation, established as a part of the government of the country." In Providence v. Clapp, 17 How. 161, 167, it was assumed that actions against cities, as well as against towns, for defects in highways, could not be maintained at common law, but only so far as given by statute; and the position was supported by referring to many cases in this and other courts in New England, some of which have been cited in the former part of this opinion. In Richardson v. Boston, 19 How. 263, 270, the action which was maintained was for so constructing a sewer as to cause an accumulation of matter at the end of the plaintiff's wharf, and to obstruct the access of vessels to it.

In Weightman v. Washington, 1 Black, 39, the action was brought for a defect in a bridge which the city of Washington, by its charter, had the sole control and management of, and was chargeable with the expense of keeping in repair, and rebuilding when necessary; and Mr. Justice CLIFFORD, who delivered the opinion of the court, said that, "in view of the several provisions of the charter, not a doubt is entertained that the burden of repairing or rebuilding the bridge was imposed upon the defendants in consideration of the privileges and immunities conferred by the charter." 1 Black, 51. The charter having received that construction, the case was thus brought within that of Henly v. Mayor of Lyme, already cited; and the reference to that case, as establishing the general rule that a municipal corporation, under a legal obligation to repair the place in question, and liable to indictment for not repairing it, is liable to an action at the suit of any person sustaining peculiar damage, was obiter dictum. The learned justice inadvertently speaks of the opinion of the judges in the House of Lords in that case as having been delivered by Baron PARKE. As it appears in 2 Cl. & Fin. 337, that he was present and concurred in the opinion delivered by Justice JAMES ALLAN PARK, the mistake is perhaps not very material; but it may be observed that the opinion delivered by Lord WENSLEYDALE, in Mersey Docks v. Gibbs, L. R., 1 H. L. 93, 124, shows that he did not consider the decision in Henly v. Mayor of Lyme as applying to the case of a public officer

Hill v. City of Boston.

r corporation discharging a public duty, and receiving no compensation or consideration for assuming or performing that duty.

In Nebraska City v. Campbell, 2 Black, 590, 592, and in Chicago City v. Robbins, id. 418, 422, and 4 Wall. 657, 670, it was said to be well settled that public municipal corporations, upon which the duty is imposed to keep in repair streets or bridges, and the means are conferred of accomplishing that duty, are liable to action for any special damage accruing from neglect to keep the same in proper condition. But in Nebraska City v. Campbell, which was on writ of error from the Supreme Court of the Territory of Nebraska, the charter of the city appears to have contained provisions upon this subject which are not fully given in the report, and the statement of the general doctrine was based upon Weightman v. Washington and the cases there cited. In Chicago City v. Robbins, the action was by the city of Chicago to recover over against a third person, who, having had notice of the action in which judgment had been recovered against the city, could not contest its liability, but could only show that there had been no fault or breach of duty on his own part. And in Mayor, etc., of New York v. Sheffield, 4 Wall. 189, the liability of the city of New York for defects in a highway was not denied, and the only points argued by counsel or discussed by the court were, how far the city could show that the place in question was not a highway, and the questions of burden of proof and of notice to the city.

The act of Congress of February 21, 1871, made the District of Columbia a municipal corporation, with power to contract, have a seal, sue and be sued, and exercise other powers of a municipal corporation; vested the executive power in a governor appointed by the President, and the legislative power in a legislative assembly, consisting of a council and a house of delegates; established a board of public works, consisting of the governor and four other persons appointed by the President; and contained these provisions: The board of public works shall have entire control of, and make all regulations which they shall deem necessary for keeping in repair, the streets, avenues, alleys and sewers of the city, and all other works which may be intrusted to their charge by the legislative assembly or Congress. They shall disburse upon their warrant all moneys appropriated by the United States, or the District of Columbia, or collected from property holders, in pursuance of

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Hill v. City of Boston.

law, for the improvement of streets, avenues, alleys and sewers, and roads and bridges; and shall assess, in such manner as shall be prescribed by law, upon the property adjoining and to be specially benefited by the improvements authorized by law and made by them, a reasonable proportion of the cost of the improvement, not exceeding one-third of such cost, which sum shall be collected as all other taxes are collected." U. S. Stat. February 21, 1871, § 37. In Barnes v. District of Columbia, 91 U. S. 540, a majority of the Supreme Court, in an opinion delivered by Mr. Justice HUNT, Chief Justice WAITE and Justices CLIFFORD, MILLER, and DAVIS concurring, and Justices SWAYNE, FIELD, STRONG and BRADLEY dissenting, held that the District of Columbia was liable to an action by a traveler for an injury sustained by reason of a defect in a street. The majority of the court assumed, as the basis of its judgment, the fundamental propositions, that a municipal corporation, in the exercise of all its duties, including those most strictly local or internal, is but a department of the State; that a corporation can act only by its agents or servants; and that the care and superintendence of streets, alleys and highways, the regulation of grades, and the opening of new and closing of old streets, are peculiarly municipal duties. And it was declared that the authorities, establishing the doctrine that a city is liable to an individual for an injury arising from negligence in the construction of a work authorized by the city, were so numerous, and so well considered, that the law must be deemed to be settled in accordance with them. From these premises, and from the provisions of the act of Congress, it was concluded that the board of public works was a part of and an agency of the municipal corporation, that the proceedings of that board in the repair and improvement of the street were the proceedings of the municipal corporation, and that therefore the corporation was responsible to the plaintiff.

That decision, as far as it held the board of public works to be an agent of the corporation for whose act or neglect the corporation was responsible, is avowedly opposed to the decisions of this court in Thayer v. Boston, 19 Pick. 511, and Walcott v. Swampscott, 1 Allen, 101, to which may be added Fisher v. Boston, 104 Mass. 87, 95; s. c., 6 Am. Rep. 196, and other cases there referred to; and it would seem to be inconsistent with the judgment of the House of Lords in Duncan v. Findlater, 6 Cl. & Fin. 894, as explained in Mersey Docks v. Gibbs, L. R., 1 H. L. 116, 117, and with

Hill v. City of Boston.

other decisions in England, already cited. But as the duty, for neglect of which the action now before us is sought to be maintained, rests, as we have already seen, upon the city itself, and not upon any public officer or board, we are not required to consider that point at the present time.

If the decision of the Supreme Court, so far as it asserted the liability of a municipal corporation or board to private action for a defect in a highway or public work which it was authorized and required to construct and repair, had been placed, as in the case of Weightman v. Washington, upon the ground that, in the opinion of the court, the terms of the special act creating the corporation showed that the obligation to repair was imposed by Congress upon the corporation in consideration of benefits conferred by the charter we should, upon a question affecting a district of which the National legislature and judiciary have exclusive jurisdiction, readily defer to the decision.

But when that decision, approved by a bare majority of the court, and in a matter in which it is not binding upon us as authority, is based upon reasoning which does not command our assent, and which, if carried to its logical result, would impose upon every city in this Commonwealth new and indefinite liabilities, we cannot avoid the duty of examining the precedents invoked in its support, and of deciding the case, which is within our final jurisdiction, according to our convictions of what the law demands.

The previous cases in the Supreme Court have already been considered, as have been the English cases referred to, which are only Henly v. Mayor of Lyme, in which the duty of repairing sea-walls was imposed by royal charter as the condition and consideration of a grant of franchises and an acquittal of rents; Mersey Docks v. Gibbs & Penhallow, which turned upon the terms of special acts of Parliament establishing a corporation to construct and manage docks, such as were ordinarily constructed and managed by private enterprise; Parnaby v. Lancaster Canal, the case of an ordinary corporation making a canal and taking tolls thereon for its own benefit; and Scott v. Mayor, etc., of Manchester, in which the city carried on gas-works for profit, just as an individual or a private corporation might.

The cases in the courts of the several States are so numerous, and are so fully collected in the twenty-third chapter of Judge DILLON'S valuable work on Municipal Corporations (which has

Hill v. City of Boston.

been a great aid to us in considering this subject), that we shall confine our further examination to those cited upon the brief of the plaintiff in the present case, or referred to by the Supreme Court in Weightman v. Washington and Barnes v. District of Columbia, as establishing the general proposition that an incorporated city is liable to an action for the neglect of a duty imposed upon it by law.

The only case so referred to, in any of the New England States, is Jones v. New Haven, 34 Conn. 1, in which the city of New Haven, which had accepted a charter giving the common council power to make by-laws for the regulation and protection of trees in the public squares and streets, was held by a majority of the court to be liable to an action for negligence in permitting a dead limb to remain upon a tree in a public square, which fell upon and injured the plaintiff while passing under it. We need not consider the correctness of that decision. It is sufficient for our present purpose to observe that it was put upon the ground that the duty of keeping the trees in proper condition was imposed by the charter in consideration of the benefit received by the corporation, was not, strictly speaking, a public duty, and was not a power or duty imposed upon the city by a general law, nor applicable alike to all cities, but was a special power or privilege conferred upon the city at its request. 34 Conn. 12. That the decision did not proceed upon the ground of any neglect of a public duty is clearly shown in another case which first came before the court at the same term, and in which it was ultimately held that no action could be maintained against a city for neglect of a public governmental duty, such as keeping the highways free from nuisances, except so far as such remedy had been given by statute. Hewison v. New Haven, 34 Conn. 136, 139, and 37 id. 475; s. c., 9 Am. Rep. 342.

Of the New York cases referred to, those decided in 1850 or earlier were before this court at the time of the decisions in Child v. Boston, 4 Allen, 41; Emery v. Lowell, 104 Mass. 13, and Oliver v. Worcester, 102 id. 489; s. c., 3 Am. Rep. 485, and we have supposed them to be in entire accord with those decisions. In Bailey v. Mayor, etc., of New York, 3 Hill, 531, and 2 Denio, 433, the city of New York was held liable for negligence in the construction of the dam of the Croton water-works which under a special act, voluntarily accepted by the city, had been constructed by commissioners whose report had been approved by the city council, and VOL. XXIII. - 46