Edgerly v. Concord

*18 Allen, J. It has been decided, on a former transfer of this case, that the action could not be maintained upon a declaration for damage from a defective highway. Edgerly v. Concord, 59 N. H. 78. After amendment of the declaration alleging the careless use of the hydrant by certain officers of the city as the cause of the injury, it was again decided that the plaintiff could not recover upon a declaration which contained no averment of the defendants’ duty to prevent the negligent use of the hydrant complained of. Edgerly v. Concord, 59 N. H. 341. The claim presented at this time, on a further amendment of the declaration and a statement of facts agreed upon for the purposes of the case, is, that the plaintiff’s injury arose from the defendants’ unlawful and negligent use of one of their hydrants. The rule that it is the duty of every one to so use his own that another shall not be injured thereby, and that he shall be liable in damages for every injury inflicted through a neglect of such duty, has not the general application to municipal corporations that it has to private corporations and natural persons. 2 Dill. Mun. Cor. (3d ed.) s'. 948; Cool. Torts, 619, 620. The purposes for which a municipal corporation is created, and its powers and duties, are largely of a public nature, and its acts are, to a great extent, legislative and judicial. The relations of an individual with such a body are so different from his relations with other individuals and with private corporations that questions of liability for injuries arising from a neglect of public corporate duty are rarely solved by the application of a general rule, but each case must be determined, as it arises, on its own facts, and by an interpretation- of the statute creating the corporation and defining its powers and duties. 2 Dill. Mun. Cor., s. 948; Lloyd v. Mayor, &c., of New York, 5 N. Y. 369, 375; Mersey Dock Cases, L. R. 1 H. L. 93. As a part of the governmental machinery of the state, municipal corporations legislate and provide for the customary local conveniences of the people, and, in exercising these discretionai’y functions, the corporations are not called upon to respond in damages to individuals, either for omissions to act, or for the mode of exercising powers conferred on them for public purposes, and to be exercised at discretion for the public good. For injuries arising from the corporation’s failure to exercise its public, legislative, and police powers, and from the manner of executing those powers, there is no remedy against the municipality, nor can an action be maintained for damages resulting from the failure of its officers to discharge properly and effectually their official duties. Eastman v. Meredith, 36 N. H. 284; Ray v. Manchester, 46 N. H. 59, 60; Hardy v. Keene, 52 N. H. 370, 377; Thayer v. Boston, 19 Pick. 511; Hafford v. New Bedford, 16 Gray 297; Fisher v. Boston, 104 Mass. 87; Hill v. Boston, 122 Mass. 344; Barbour v. Ellsworth, 67 Me. 294; Judge v. Meriden, 38 Conn. 90; Jewett v. New Haven, 38 Conn. 368; Hutchinson v. Concord, 41 Vt. 271; Gtrant *19 v. Erie, 69 Pa. St. 420; Davis v. Montgomery, 51 Ala. 139; Cool. Torts 620, 621; 2 Dill. Mun. Cor., ss. 949, 950, 951, 953, 954, 955. No private action, in the absence of a statute giving it, can be maintained against a city for the neglect of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation receives no profit or advantage. Hill v. Boston, 122 Mass. 344, and cases cited; 2 Dill. Mun. Cor., s. 976. To charge a corporation with damages for injuries arising from misfeasance and neglect of duty, no statute fixing the liability, there must be acts positively injurious committed by authorized agents or officers in the course of the performance of corporate powers, or in the execution of corporate duties, in distinction from those done in a public capacity as a governing agency. If the corporation maintains a private nuisance and causes special damage thereby, or invades any right of property in the performance of an authorized act, the injured person is entitled to liis action. Eastman v. Meredith, supra, 284, 291, 292, 296; Groton v. Haines, 36 N. H. 388; Gilman v. Laconia, 55 N. H. 130; Mayor of New York v. Furze, 3 Hill 612; Bailey v. Mayor of New York, 3 Hill 531; Lloyd v. Mayor of New York, 5 N. Y. 369, 375; 2 Dill. Mun. Cor., s. 966. The act complained of must be one which the corporation is empowered to do, and not wholly ultra vires, and the officer committing the act must be the agent or servant of the corporation acting within the scope of his authority, and not a,n independent public officer whose sole powers are given and defined by statute. Thayer v. Boston, supra, 516; Perley v. Georgetown, 7 Gray 464; Fisher v. Boston, 104 Mass. 87; Tolman v. Marlborough, 3 N. H. 57, 59; Wood Mas. & S. 17; 2 Dill. Mun. Cor., s. 974. Municipal corporations may be liable for acts done under a grant of special powers not held under any general law, and from the execution of which some special profit or advantage is derived (Rowe v. Portsmouth, 56 N. H. 293) ; and generally for injuries received from the negligent management of property not held for strictly public purposes, corporations are liable in the same way and to the same extent as individuals. Oliver v. Worcester, 102 Mass. 489, 499; Richmond v. Long’s Adm’rs, 17 Grat. 375; Petersburg v. Applegarth, 28 Grat. 321. The act for which the plaintiff claims damages was an experimental use of a public hydrant, with hose attached, by firemen of the city acting under the direction of the chief-engineer, who made the experiment at the request of the mayor and in the presence of the city councils. For all purposes connected with the rise of water for extinguishing fires, the management and control of the hydrants were with the fire department under the direction of the board of engineers. The law provides that “The selectmen, being authorized by vote or by-law of any town, shall appoint a chief-engineer and assistant engineers and clerk of the fire department, who shall respectively have the powers and perform the duties *20 of the chief and other firewards and their clerk, and as a board shall hare the powers and perform the duties of the board of firewards.” Gen. St., c. 96, s. 21. The duties of firewardsare defined to be to “ have at all times the control of all fire-engines, fire-hooks, hose, and all other implements designed; or used for the extinguishment of fire in such town, and of all persons appointed to serve in any engine, hose, or axe company, or other association whose duty shall be to aid in extinguishing fires,, in alPthings appertaining to their appointment.” Gen. St., c. 96, s. 2. By ss. 13 and 14 it is made the duty of firewards to appoint; firemen whose duties in relation to property in their charge shall be subject to the approval of the firewards. And by s. 11 it is. provided that the chief fireward shall see that all apparatus provided for the extinguishment of fires is kept in repair, and “cause all cisterns and sources of water prepared for the fire-department to be fully supplied and kept in order.” The city councils, having the powers of towns in relation to like subjects,, established a fire department, and provided for a board of engineers, clerk, and firemen, who were duly appointed and became-possessed of all the powers and subject to all the duties imposed by the general law upon the firewards and firemen of towns. The engineers being appointed, their duties were defined by the general law, and not by any law, ordinance, or vote of the city. They were public officers, amenable to law for their conduct, and not under control or direction of the city. They were not agents or servants of the city in any such sense as to bind it by their acts or make it liable for their defaults. Hafford v. New Bedford, 16 Gray 297; F isher v. Boston, 104 Mass. 87; Jewett v. New Haven, 38 Conn. 368; Torbush v. Norwich, 38 Conn. 225; O'Meara v. Mayor of New York, 1 Daly 425; Bowditch v. Boston, 101 U. S. 16; Shear. & Red. Neg. 139; 2 Dill. Mun. Cor., s. 976. On the same principles it has been held that various classes of municipal officers, appointed by the municipality in obedience to an act of the legislature which prescribes their powers and duties, and from which the corporation, in its corporate capacity, receives no-special benefit, are not agents of the corporation for whose tortious acts it can be made liable. Among these officers are superintendents of streets and highway surveyors — Hardy v. Keene, 52 N. H. 370; Small v. Danville, 51 Me. 359; Walcott v. Swampscott, 1 Allen 101; Barney v. Lowell, 98 Mass. 570; police officers — But trick v. Lowell, 1 Allen 172; Elliot v. Philadelphia, 75 Pa. St. 347; health officers — Brown v. Vinalhaven, 65 Me. 402; Ogg v. Lansing, 35 Iowa 495; commissioners of charities appointed by the mayor — Maxmilian v. Mayor of New York, 62 N. Y. 160; inspectors of steam boilers appointed by the city — Mead v. New Haven, 40 Conn. 72. The public hydrants were constructed for use in extinguishing fires, were “ sources of water ” for that purpose, and a part of the *21 machinery under the control and management of the engineers. Though water commissioners were appointed who had the control and management of the water-works constructed under the act of 1871, their powers and duties did not conflict with the powers •given by statute to the board of engineers, which included the control and management of the hydrants as sources of water for the extinguishment of fires. The mayor’s request that the chief engineer make an exhibition of the force of the hydrants was not an order of the city, and did not change the duties of the engineer n,nd firemen, nor add any new ones to those imposed by statute. The engineer and firemen, within the scope of their statutory duties, could in many ways use the hydrants and hose at other times and places than at fires. The legal requirement, that the chief-engineer should keep all apparatus furnished in repair, and all sources of water fully supplied and in order, made it necessary to examine the hydrants and test their power. That the firemen should be possessed of skill, and consequent usefulness and efficiency, in extinguishing fires, frequent practice in operating the hydrants with hose and making practical tests of their force in particular places was necessary. And for the purpose of informing the city government of the relative needs of different localities in respect to fire apparatus and water for extinguishing fires, it would not seem that they were exceeding or departing from their line of prescribed duty in exhibiting the force of water, at the hydrant in question, to the mayor and city councils. In either view, whether or not the engineer and firemen acted within their line of duty, the acts were of a public nature, done as public officers and not as agents of the defendants, and the defendants could not on that account alone be liable. If the act which occasioned the injury was ultra vires, wholly outside the corporate powers of the defendants, they could not be liable, even though it might appear that the request of the mayor was a command, and the presence of the city councils witnessing the act was a ratification or adoption of it by the city government. The city councils could not legally ratify nor bind the city by the adoption of an act which the city had no power to perform. 2 Dill. Mun. Cor. 968. But if the act complained of was within the corporate powers of the defendants, and commanded, ratified, or adopted, so as to become an act of the city, it was an act of a public nature, discretionary and legislative, for the injurious consequences of which the defendants would not be chargeable. The city councils were officially engaged in the consideration of the question where to locate a house for a fire-engine. The exhibition of the hydrant’s power was upon a “view” by the councils, the better to enable them as judges to legislatively determine the question before them. Just what information they chose to obtain on the subject, and what mode they would adopt in obtaining it, was discretionary with them. The city could not be made liable for any error or *22 mistake in determining the location of the engine-house, nor for an injury arising from the method used to obtain competent evidence on the subject. If the act was within the chartered, legal, corporate powers of the city, it was an act of a public chai’acter, legislative and discretionary, and for the manner of exercising such a power the city could not be made liable. It is claimed by the plaintiff that the act empowering the city to introduce water conferred special privileges on the defendants and their inhabitants, and is one from which the city, in its corporate character, receives special benefits in the way of rents and tolls for the use of the water, and thereby the duty is imposed of protecting individuals from injury arising from a negligent use of the privileges so conferred. Conceding this to be so, it does not appear that the doctrine has any application to this case. The act from which the injury arose was the use of a hydrant with hose attached, constructed for use in extinguishing fires, and under the control of the fire department, an independent branch of the city government. No toll, or rent, or special advantage accrues to the defendants in their corporate capacity, for the use of the hydrants for such purposes, but a tax is laid for supporting the use. For the use of the water by individuals, for domestic and other purposes, an annual rent is paid or may be exacted. The use of the water from the hydrants is a public use, enjoyed in common by the people, and from which the city in its corporate capacity receives no special advantage; and, in the absence of a statute giving the action, the defendants cannot be made liable for a neglect of duty in respect to such public use. Hill v. Boston, 122 Mass. 344; Parker v. Rutland, 56 Vt. 224; People v. Detroit, 28 Mich. 228, 237, 238, 239; 2 Dill. Mun. Cor., ss. 966, 976, 980, 981. The local character of the public expense of the water-works, and of the election of the public officers who made the experimental use of the hydrant and requested it to be made, and the fact that the extinguishment of fires was not the sole purpose of the water-works, are immaterial, because the use complained of was made in the exercise of no other power than that of providing, at the public expense, for the protection of the public against fire. For every legal purpose of this case, the use complained of was as purely public as it would have been if the water-works had been constructed by the state, at the expense of the state, for the sole purpose of use by state officers in the extinguishment of fire without private remuneration, and the experiment had been made by state officers, legislative and administrative, in their consideration of the location of an engine-house to be built by the state. Of the use of the water-works for which tolls were paid, or of anything done in the business of providing for it, the plaintiff does not complain. Mere division of the state government into general and local does not make either part suable, and neither part is made liable for its uncompensated transaction of the public business of *23 a fire department, by the circumstance that it is engaged in some other public business, the expense of which is borne by those specially benefited by it instead of the tax-payers. In Aldrich v. Tripp, 11 R. I. 141, claimed as an authority by the plaintiff, the city of Providence was held liable for an injury arising from a traveller’s horse taking fright at a stream of water thrown across the street, from a hydrant, by employés of the water commissioners. The decision goes expressly on the ground that the commissioners, authorized by the charter granting the waterworks, were not public officers but agents of the city, and that the hydrant was not being used for a public purpose, but the use was of a part of the city’s property, from which a special benefit was derived by the city in its corporate capacity. On principle, and by a very great weight of authority, a municipality cannot be made liable, in the absence of a statute giving the remedy, for an injury arising from a negligent use of its property, from which it receives, in its corporate capacity, no special benefit, or from a negligent use of its property by its officers not acting as agents or servants of the corporation, but as public officers whose duties are defined by general law. On the facts stated a case is not made which entitles the plaintiff to recover. Case discharged. Stanley and Cabpbnter, J J., did not sit: the others concurred.