Bryant v. City of St. Paul

Vanderburgh, J. The plaintiff in this action seeks to charge the defendant for the misfeasance or negligence of the board of health or its agents in leaving a vault upon private premises exposed and open after removing its contents, in consequence of which plaintiff, ⅝ without fault on her part, fell into the vault and was injured. By the charter of the city the board of health is constituted a separate body, composed of the city engineer, city physician or health officer, and four members of the city council appointed by the president of that body. Its powers and duties are specially defined by the — 292 — charter, and it is expressly authorized to make rules and by-laws for the government of the action of the board and its agents in the discharge of its and their duties, and it is made the duty of the police to enforce its sanitary regulations and orders. It is also clothed with authority, within the limits of the city, to enforce all laws of the state generally, relating to the care and preservation of health, and is given jurisdiction over all lakes and water-courses in Ramsey county to the same extent as within the city. City Charter, (Mun. Code, St. Paul,) c. 11, (Sp. Laws 1874, c. 1.) The provisions of the charter clearly mark and define the duties of the board as public and general in their character. Sp. Laws 1874, c. 1, subc. 11, as amended, Sp. Laws 1879, c. 88; Sp. Laws 1883, c. 2, § 18. It is usual, either by general law or in municipal charters, to confer such authority upon local boards of health, to be exercised under the general police power of the state. And it is entirely immaterial, as affecting the question of the nature of the duties devolving upon such board, and the question of municipal responsibility, in what manner the legislature may direct and authorize its members to be appointed, — whether by.the corporation or otherwise. Maxmilian v. Mayor, 62 N. Y. 160; Fisher v. Boston, 104 Mass. 87. The charter, also contains general provisions authorizing the common council, by ordinance, to remove and abate nuisances injurious to the public health, and to make regulations for the preservation of health and suppression of disease, and to make and enforce quarantine laws. Chapter 4. But it is not alleged or claimed in this case that the board of health were acting under the direction of the corporation in executing or enforcing any regulation in pursuance of which the alleged negligent act or omission occurred, or otherwise than in the exercise of the general discretionary powers conferred on it by the charter. We are not, therefore, called on to consider the question of the liability of the municipality when it undertakes, in the exercise' of its coi'porate powers, the performance of the act complained of, or specially directs or interferes in the premises. It is true, the complaint alleges “that the defendant, through the said board of health, caused said vault to be cleansed,” etc.; but it is clear, we think, and was so — 293 — assumed in argument, that the agency of the city referred to in the matter was simply its relation to the board of health as defined by the charter, and that the board was, in fact, acting by virtue of the powers thereby conferred. Chapter 11, § 5, of the charter, under which it appears by the complaint the board proceeded in this instance, provides that “said board may order or cause any excavation, * * * room, building, premises,” etc., in said city, “regarded by said board as in a condition dangerous * * * to health, * * * to be cleansed,” etc. It is not, we think, to be implied that the city council took any express or affirmative action in the premises to direct the abatement of the nuisance in this case, but that it was done by the board in the ordinary course of its duties. The question, then, presented for our consideration is whether the alleged negligence of the board created a corporate liability as against the city. The duty is imposed by the legislature upon the board of health, under the police power, to be exercised for the benefit of the public generally. It is one in which the city corporation has no particular interest, and from which it derives no special benefit in its corporate capacity. And we think it clear that, as respects an agency thus created for the public service, the city should not be held liable for the manner in which such service is performed by the board. 2 Dillon, Mun. Corp. § 976, (§ 774,) etc. It is bound to discharge its official duty, not by virtue of its responsibility to the municipality, but for the general welfare of the community, and no action will lie against the city for the acts of the board unless given by statute. Fisher v. Boston, supra; Hayes v. City of Oshkosh, 33 Wis. 314; City of Richmond, v. Long, 17 Grat. 375; Maxmilian v. Mayor, supra; Ogg v. City of Lansing, 35 Iowa, 495; Welsh v. Village of Rutland, 56 Vt. 228; Tindley v. Salem, 137 Mass. 171; Condict v. Mayor, 46 N. J. Law, 157; S. C. 19 Cent. Law J. 213, and cases cited; Smith v. City of Rochester, 76 N. Y. 506. The duties of such officers are not of that class of municipal or corporate duties with which the corporation is charged in consideration of charter privileges, but are police or governmental functions, which could be discharged equally well through agents appointed by the state, though usually associated with and appointed by the municipal — 294 — body. The nature of the duties as public are the same in either ease. In Kobs v. City of Minneapolis, 22 Minn. 159, which we think presents a different question, but which is relied on by the plaintiff, a street commissioner dug a ditch across a street, whereby a large quantity of water was carried over to and upon plaintiff’s lot from land opposite, and the city was properly held liable, because there the street commissioner was the agent of the city in the supervision and improvement of streets, with large discretionary power in the premises, and subject to control and removal by the city, and in making such ditch across the street he directly caused the flooding of plaintiff’s lot. The responsibility for the care and control of streets belonged to the city, and he was acting for the corporation in the course of his employment in and about the discharge of a corporate duty. The city was bound so to use and control the street as not to injure the property of others. Oliver v. Worcester, 102 Mass. 489; Thurston v. City of St. Joseph, 51 Mo. 510. The eases of City of Dayton v. Pease, 4 Ohio St. 89; Bailey v. Mayor, 3 Hill, 531; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463, and other like cases, are clearly distinguishable from the case at bar. These were actions for damages resulting from the negligence or unskilfulness of the agents of the corporation in and about the supervision or management of corporate property, or the construction of public improvements under the authority of the municipality in its corporate capacity. The same remark will apply to cases generally where the corporation has directly authorized, participated in, or ratified (where for any cause it may lawfully do so) the alleged wrongful acts, or has derived a profit or corporate advantage therefrom, though it might not otherwise have been liable. De Yoe v. Saratoga, 1 Hun, 341; Tormey v. Mayor, 12 Hun, 542; Dooley v. Kansas City, 19 Cent. Law J. 490; Murphy v. Lowell, 124 Mass. 564; City of Toledo v. Cone, 41 Ohio St. 149. But no such facts appear in this case to qualify the rule of corporate liability, and as between the city and the board respondeat superior is not applicable. Order affirmed, and case remanded.