Weightman v. Corporation of Washington

This was a writ of error to the Circuit Court of the United States for the District of Columbia. The plaintiff in error brought case against the corporation of Washington for bodily injuries suffered by him, in consequence of being thrown from the bridge across Rock creek, at the termination of K street. On the trial in the Circuit Court, the plaintiff proved that the charter of the city (sec. 13) provided that 'the said corporation shall have the sole control and management of the bridge, and shall be chargeable with the expenses of keeping the same in repair, and rebuilding it when necessary.' In May, 1854, the plaintiff, a citizen of Washington, was crossing the bridge in an omnibus, when the bridge broke down, and he was seriously injured. On part of the defendant, evidence was given that the bridge had been erected by skilful and scientific workmen, in good faith, upon a plan patented by the Government, and believed to be faultless in principle; that the construction was thought to be strong and solid, both the work and materials being of the best description; that the giving way of the bridge was the result of an accident and of an unknown defect in the plan of it; that when the bridge was completed, in 1850, its strength and capacity were amply tested; that a commissioner was appointed by the corporation of the city to inspect and superintend the bridge, who performed his duties, but did not discover any defect; that the corporation had no notice, either through their officer or otherwise, that the bridge was unsafe, and that in fact there was no indication of unsoundness in it before the time of its fall.

To rebut this evidence of the defendant, the plaintiff proved that the bridge was built by Rider, the patentee of the plan, who warned the officers of the city corporation in vain against building the arch as high as they proposed to make it; that any bridge on that plan, unless it be horizontal, is unsafe, and the insecurity is increased in proportion as the arch is raised; that within a year after the bridge was put up the approach to it was changed at each end, adding thereby about three tons to its weight; that for several days before it fell, divers persons observed its unsafe condition.

The defendant prayed the court to instruct the jury that upon the whole evidence the plaintiff was not entitled to recover; and the court gave the instructions prayed for. A verdict and judgment were accordingly given for the defendant, and the plaintiff sued out this writ of error.

Mr. Bradley and Mr. Carlisle, of Washington city, for plaintiff in error, contended that the judgment of the Circuit Court ought to be reversed by this court, because:

1. The terms employed in the clause of the 13th section of the charter are mandatory, and impose on the corporation the duty to keep in repair and rebuild the bridge in question when necessary. Mason vs. Fearson, (9 How., 248.)

2. The duty thus imposed on the corporation is an absolute and purely a ministerial duty. It involves no discretionary exercise of political or legislative power, and is precisely such as might have been devolved upon an individual. Storrs vs. City of Utica, (3 Smith, 17 N. Y., 104;) Delmonico vs. City New York, (4 Com., 1 Sand., 222;) The Mayor, &c., of Albany vs. Cunliff, (2 Com., 165;) Erie City vs. Schwingle, (22 Penn., 584;) Rochester Lead Company vs. City of Rochester, (3 Coms., 467.)

3. The charter has provided the most ample means to enable the corporation to discharge this duty, by the imposition of taxes, and granting licenses; by holding and owning property, and receiving the rents, issues, and profits of real estate, to be employed by the corporate authorities in the support and execution of this, among other duties, with which they are charged. Hutson vs. City of New York, (3 Sand., 297; 7 John., 439; 7 Wend., 474; 2 Hill, 619; 6 ib., 463.)

4. The franchises thus granted to the corporation are the consideration on which they have, by accepting the charter, undertaken to discharge the duties and burthens imposed on them as conditions of the enjoyment of those franchises. (Grant Cor., p. 18, and cases in note;) Rutter vs. Chapman, (8th M. & W., 36, 85; Wilcock Mun. Corp., 30; Ang. & Am., 3d ed., chap. 2, § 7;) Conrad vs. Trustees of Ithaca, Weet vs. Brockport, (2 Smith, 191.)

5. The line of demarkation between these duties, which are immediate parts of, or incident to their political powers, and those which are purely and absolutely ministerial, is not always well defined, and may sometimes give rise to doubt; but it may be safely affirmed that when a municipal corporation is distinctly charged with the execution of a specific duty for the benefit of the public and of individuals, and means are in the same or some other instrument put into their hands, adequate to its full performance, they may be compelled to perform it, and will be responsible to individuals injured by their negligent or improper performance of it. Mayor of Lynn vs. Turner, (Cowp., 86; Grant Corp., 501;) Henley vs. Mayor of Lyme, (5 Bing., 91; S.C.., 1 Bing. N. C., 222, in error, 2 C. & F., 354, by all the judges;) Mayor of New York vs. Furze, (3 Hill, 612;) Mayor of Albany vs. Cunliff, (2 Coms., 165;) Lloyd vs. City of New York, (1 Seld., 369;) City of Pittsburg vs. Grier, (20 Penn., 64;) The Mayor of Baltimore vs. Marriot, (9 Maryland, 160, 178;) Memphis vs. Lasser, (9 Hump., 761.)

6. The bridge thus constructed by the corporation was its property, which they could take down and dispose of at their pleasure. One end of it rested on soil beyond their municipal jurisdiction, if the whole bridge was not also beyond it, and the corporation in its political character could have no control over it. Yet they were bound to repair and rebuild it out of their corporate funds, and they were responsible, if it became a public nuisance, to any one receiving special damage from the manner in which they discharged that duty. Bailey vs. The City of New York, (3 Hill, 531; S.C.. 2 Denio, 433.) Having constructed it, they had no discretionary power as to keeping it in repair. Wilson vs. Mayor of New York, (1 Denio, 595;) The Mayor of New York vs. Furze, (3 Hill, 612; Kitty's Laws, 1791, chap. 45, § 1.)

Mr. Davidge, of Washington city, contra. The officers of the corporation are invested with power over the bridge as the agents of the public, from public considerations and for public purposes exclusively, and are not responsible for the nonfeasances or mis-feasances of sub-agents necessarily employed. The nature of the power is public, and its object is the benefit of the public. The bridge is a public bridge, and so alleged. It spans a navigable stream, and one abutment only is within the corporate limits.

It is not denied that a public municipal corporation may hold franchises or other property, in relation to which it is to be regarded as a private company, and subject to the responsibilities attaching to that class of institutions. Bailey vs. The Mayor, &c., of New York, (3 Hill's N. Y. Re., 531, 540;) ''S.C.. on error, (2 Denio, 434;) Moodalay vs. The East India Co.'', (1 Brown's Ch. R., 469.) But as regards the power under consideration here, it has not a single element of private ownership, but stands on precisely the same footing as the powers of the corporation over the streets of the city, which powers, it is judicially settled, are exercised by the corporation as agents of the public. Smith vs. Corporation of Washington, (20 How., 135, 148;) Van Ness vs. Id., (4 Pet., 232.) Public agents are not responsible for the mis-feasance or non-feasance of those whom they are obliged to employ. To such cases the doctrine of respondeat superior does not apply. Story on Agency, (sec. 319-322;) Hall vs. Smith, (2 Bing., 156; 9 E. C. L. R.;) Harris vs. Baker, (4 Maul & Selw., 27;) Lave vs. Colton, (1 Ld. Raymond, 646;) Whitfield vs. Lord Le Despencer, (Cowp., 754;) Duncan vs. Findlater, (6 Clark & Finell, 903, 910;) Dunlop vs. Munroe, (7 Cranch, 242, 269;) Bailey vs. The Mayor, &c., of New York, (3 Hill's N. Y. Re., 532;) ''S.C.. on error, (2 Denio, 434, 450;) Schroyer vs. Lunch, (8 Watts, 453;) Boody et al. vs. United States, (1 Woodb. & Minot, 151, 170;) White vs. City Council, (2 Hill S.C.. R., 571;) Supervisors of Albany Co. vs. Dorr'', (25 Wend., 440.)

It may be urged that it is not sought here to hold the corporation responsible for the neglect of its official subordinates, but for neglect in the appointments of them. But admitting, argumenti grati a, that for such neglect the superior would be liable, there is no evidence to show that the commissioner lacked capacity. Moreover, it has been settled by this court that, under an allegation framed as here, evidence of neglect in making the appointment or of not properly superintending the subordinate is not admissible; but that for such neglect a recovery can be had only, if at all, upon a declaration specially framed to meet the particular kind of negligence relied on. Dunlop vs. Munroe, (7 Cranch, 242, 269.) And to the same effect is Bishop vs. Williamson, (2 Fairfield, 495, 506.)

2. At common law no action lies against public municipal corporations or quasi corporations created for public purposes, or against other public officers, for neglect to repair a public bridge or highway, unless the obligation to repair rests on tenure, prescription, or contract. The only remedy is by indictment. City of Providence vs. Clapp, (17 How., 161, and cases cited, p. 162.) In Bro. Abr., Title Sur le case, (pl. 93,) it is said that if a highway be out of repair so that a horse be mired and injured, no action lies, 'car est populus et serre reforme per presentment.' In Russell vs. The Men of Devon, (2 T. R., 667)-the leading case upon the subject-the precedent in Brooke was cited and approved, and it was held that no action lay to recover satisfaction for injury done to a wagon in consequence of a bridge being out of repair. In Riddle vs. The Proprietors of the Locks and Canals on Merrimac River, (7 Mass., 169,) Parsons, C. J., took the same distinction between corporations created for the benefit of the public, as part of the government of the country, and those created for the benefit of the corporators; and held, that the former are liable only to information or indictment. Mower vs. Leicester, (9 Mass., 947;) Young vs. Comm's of Roads, (2 Nott and M. C., 555; Com. Dig., Chemin, H. 4, B. 3;) Bartlett vs. Crozier, (17 John., 439;) Mowry vs. The Town of Newfane, (1 Bar. S.C.., 645;) White vs. City Council, (2 Hill's So. Car., 571;) Haskell vs. Inhabitants of Knox, (3 Greenl., 445.) The cases of Mayor of Lynn vs. Turner, (Cowp., 86,) Henley vs. Mayor of Lyme, (5 Bing., 91, and S.C.., 1 Bing. N. C., 222,) are cases of contract, where the grantors of franchises or property held on condition that they would repair or do certain acts. The English books are filled with indictments for neglect to repair; but no instance can be found of an action when the duty to repair was created by statute for the benefit of the public, and was irrespective of franchise or other private advantage.

3. But again: it is sought here to hold a municipal corporation, acting pro bono publico, responsible not only for its own neglect to repair, but also for that of its officer in failing to observe the ordinance for the inspection of the bridge. In Towle vs. Common Council of Alexandria, (3 Pet., 409,) the action was brought to recover damages for the non-feasance of an officer of a municipal corporation in failing to take a bond from an auctioneer as required by an ordinance. But this court held the corporation not responsible. In Levy vs. City of New York, (1 Sandf., 465,) it was held that the city was not bound by an injury sustained in consequence of a neglect of its officers to enforce an ordinance prohibiting swine running at large. So also in Griffin vs. Mayor, &c., of New York, cited in Hutson vs. Mayor, &c., of New York, (5 Sandf., 303, 304.)

4. If an action lies at all, it is only where an indictment could be maintained. The declaration assumes that the duty of the defendant in error to repair is identical with that of a private corporation or individual in relation to its own property. No notice is averred of the want of repairs, nor are the facts requisite to support an indictment. The consequences of holding a public municipal corporation, or other public officer, to the strict responsibility resting upon individuals and private companies acquiring and using property for their private enjoyment and profit, must be apparent, especially as regards a bridge or highway open at all times to the public. The rigid rule applicable to individuals and private companies flows from their exclusive rights over their own property; and such a rule can never be applied when the same rights do not exist, as in the case of a bridge or highway.

Mr. Justice CLIFFORD.