state, even if like words have been differently construed in other states. Elmendorf v. Taylor, 10 Wheat. 152, 159. Christy v. Pridgeon, 4 Wall. 196. Richmond v. Smith, 15 Wall. 429. Tioga Railroad v. Blossburg & Corning Railroad, 20 Wall 137. State Railroad Tax Cases, 92 U. S. 575, 615. In the absence of such binding decisions, we find it difficult to reconcile the view, that the mere acceptance of a municipal charter is to be considered as conferring such a benefit upon the corporation as will render it liable to private action for the neglect of duties thereby imposed upon it, with the doctrine that the purpose of the creation of municipal corporations by the state is to exercise a part of its powers of government-a doctrine universally recognized, and which has nowhere been more strongly asserted than by the Supreme Court of the United States, in the opinions delivered by Mr. Justice Hunt, in United States v. Railroad Company, 17 Wall. 322, 329, and by Mr. Justice Clifford in Laramie v. Albany, 92 U. S. 307, 308.

But, however it may be where the duty in question is imposed by the charter itself, the examination of the authorities confirms. us in the conclusion that a duty, which is imposed upon an incorporated city, not by the terms of its charter, nor for the profit of the corporation, pecuniarily or otherwise, but upon the city as the representative and agent of the public, and for the public benefit, and by a general law applicable to all cities and towns. in the commonwealth, and the breach of which in the case of a town would give no right of private action, is a duty owing to the public alone, and a breach thereof by a city, as by a town, is to be redressed by prosecution in behalf of the public, and will not support an action by an individual, even if he sustains special damage thereby, and, according to the terms of the report, there must be

Judgment for the defendant.

FREDERICK W. WILCOX V. THE CITY OF CHICAGO. Supreme Court of Illinois. 1883. 107 Ill. 334.

Mr. Justice WALKER delivered the opinion of the court: This suit was brought by appellant in the Superior Court of Cook County, against the city of Chicago, to recover damages sustained by appellant by a collision between his carriage and a hook

and ladder wagon of the city, through the alleged neglect of the driver of the ladder wagon, whilst in the service of the appellee in saving property from destruction by fire. A general demurrer was filed to the declaration, and sustained by the court, and a judgment rendered against plaintiff for costs. The case was taken to the Appellate Court, and the judgment was affirmed, and it is brought to this court, and the sustaining of the demurrer is assigned for error.

The question presented is, whether the relation of master and servant exists between the driver of the ladder wagon and the city, and it is responsible for the negligent acts of the driver whenever engaged in the performance of his duty under the ordinance of the city, or whether the relation is an exception to the general rule. It has long been settled and perhaps never questioned, that the master is liable for injury from the negligent acts of his servant whilst performing acts within the line of his duty. But the whole question turns upon whether that relation exists.

On turning to the reported cases of the courts of other states, we find a uniform line of decision holding that cities are not liable for the negligent acts of the officers or men employed in their fire departments whilst in the discharge of their duty, thus creating an exception to this class of cases to the general rule of respondeat superior. In this work on Municipal Corporations, Dillon (1st ed. sec. 774,) says: "So, although a municipal corporation has power to extinguish fires, to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires, it is not liable for the negligence of the firemen appointed and paid by it, who, when engaged in the line of their duty, upon an alarm of fire ran over the plaintiff, in drawing a hose reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff caused by the bursting of the hose of one of the engines of the corporation, through the negligence of a member of the fire department. The exemption from liability is placed on the ground that the service is performed by the corporation in obedience to an act of the legislature,-is one in which the corporation has no particular interest, and from which it has no special benefit in its corporate capacity; that the members of the fire department, although appointed by the city corporation, are not the agents and servants of the city, for whose conduct it is liable but they act

rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city without being expressly given, and the maxim respondeat superior has, therefore, no application." He refers to the cases of Hafford v. New Bedford, 16 Gray, 297, and Fisher v. Boston, 104 Mass. 87, which support the text. In New York the same doctrine is applied in Maximilian v. Mayor, 62 N. Y. 120, and Smith v. Rochester, 76 id. 513. In Connecticut, in the case of Jewett v. New Haven, 38 Conn. 368. In Iowa, in Ogg v. Lansing, 35 Iowa, 495, and Field v. Des Moines, 39 id. 575. In Missouri, by Heller v. Mayor, 53 Mo. 159. In California, in Howard v. San Francisco, 51 Cal. 52. The same doctrine has been announced by the Supreme Court of Ohio.

In favor of the doctrine, it may be that an additional, if not more satisfactory, reason for its adoption and rendering it an exception to the general rule may be found in public policy. If liable for neglect in this case, the city must be liable for every neglect of that department, and every employe connected with it when acting within the line of duty. It would subject the city to opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employes had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety, whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person's property within the limits of its jurisdiction. It would assuredly become too burthensome to be borne by the people of any large city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions. When the excitement is over and calm reason assumes its sway, it may appear to many that other methods could have been adopted to stay destruction, that appear plausible as theories, and their utter fallacy cannot be demonstrated by any actual test. To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, burthens than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority.

The judgment of the Appellate Court must be affirmed. Judgment affirmed.

2. Liability of Local Corporations for Negligence in Performance of Local Duties.

JAMES B. HAND V. INHABITANTS OF BROOKLINE.

Supreme Judicial Court of Massachusetts. 1879.
126 Mass. 324.

GRAY, C. J. In November, 1875, the plaintiff, while traveling with due care in a wagon upon the highway in the defendant town, suffered injury by reason of his horse suddenly breaking through the surface of the highway. The declaration contains two counts:

It having been conceded by the plaintiff, and ruled by the Superior Court, that the plaintiff could not recover under the first count, and verdict having been returned for him on the second count only, the question before us is whether the action can be maintained upon this count.

The cause of action set forth in this count is not the omission to perform the duty, imposed by the general laws upon all cities and towns alike, of keeping the highways in repair; but it is the neglect in the construction of works which the town had been authorized by a special statute, voluntarily accepted, to construct and to receive profits from, just as a private corporation might. For a neglect in the manner of constructing such works, by which injury is caused to person or property, a town is just as liable as a private corporation or an individual. Scott v. Mayor &c. of Manchester, 1 H. & N. 59 and 2 H. & N. 204. White v. Hindley

Local Board, L. R. 10 Q. B. 219. Bailey v. Mayor, &c. of New York, 3 Hill 531, 539, and 2 Denio, 433. Aldrich v. Tripp, 11 R. I. 141. Oliver v. Worchester, 102 Mass. 489, 501. Hill v. Boston, 122 Mass. 344, 358, 359, 365, 374, 375, 377. Murphy v. Lowell, 124 Mass. 564.

If the water escaping from the aqueduct by reason of its negligent and imperfect construction had injured buildings or crops, there could be no doubt of the right of the owner to recover damages against the town. The fact that the injury occasioned was within the limits of the highway, where a person injured had a lawful right to be, affords no ground for exempting the towns from this liability.

The right of action against a city or town for a defect in a highway is, as has been repeatedly affirmed by this court, created and limited by the statutes. Gen. Sts. c. 44, Par. 22. But those statutes do not affect the common-law liability of owners of aqueducts for damages caused by negligence in their construction. If the water-works under the highway in Brookline had been constructed by an aqueduct corporation or by the city of Boston under authority of the legislature, and for the purpose of supplying water at certain rates or rents, the corporation of the city would clearly be liable in action like this; and the town of Brookline is not less liable for an injury resulting from a neglect in the construction of its water-works, because it happens to be also the town in which the highway is situated, and which is bound by general statutes to keep that highway in repair.

THE CITY OF DETROIT V. WILLIAM BLACKEBY AND HANNAH BLACKEBY.

Supreme Court of Michigan. 1870.

COOLEY, J., dissenting.

21 Mich. 84.

It is unquestionably, I think, a rule of sound public policy, that a municipal corporation which is vested with full control of the public streets within its limits, and chargeable with the duty of keeping them in repair, and which also possesses by law the means of repair, should be held liable to an individual who has suffered injury by a failure to perform this duty. If we sat here as legislators to determine what the law ought to be, I think we should have no difficulty in coming to this conclusion.

But we sit here in a judicial capacity, and the question presented is, what is the law, and not what the law ought to be. This question is to be determined upon common law principles, and the most satisfactory evidence of what those principles are is to be found in the decisions of the courts.

The decisions which are in point are numerous; they have been made in many different jurisdictions, and by many able jurists,and there has been a general concurrence in declaring the law to