The Evansville journal., 1868-04-28

euiOiped uDOn them. Many
of the powers and duties of
such CORPORATIONS are 10 their
nature legislative, ard some are judi
cial. while others are purely minis
terial. Where the duties imposed are
Of a legislative or judicial nature, and
the proper exercise of them depends
upon the judgment of those of whom
they are required, the corporation Is
not responsible In damages, either for
a failure to perform them, or for er
rOrs IN their performance. But where
duties of a purely ministerial nature
are positively enjoined on them by
law, or arise by necessary implication,
they are responsible forthe damages
resulting to individuals, either from a
neglect to perform them, or from their
performance in an improper manner.
This, we think, is a correct enuncla-
ton Of the law, IN the class of cases
to which tits applicable. ~.
The R chester. White Lead Conf
. 1ay as. The City Of Rochester, 3 n. Y
463. is the next case cited by the ap-
pellant. Tt was an actiOnato recover
for an injury to a quantity Of white
lead, situate on the plaintiff S prem
ises, resulting from the overflow Of
water, caused by the improper con-
struction, by the city, of a culvert
over a natural stream of water, and it
was held that the city was liable.
Lloyd as. The Mayor, DC, Of the City
of Nel0 York, 3, N. Y, 369, is also
cited. That was an action to recover
the value of horse, driven by the
plaintiff IN the night time, into a pit
excavated in one Of the streets. Of the
city, thereby causing his death. The
excavation was made the day previ-
Gus by the direction Of a city officer
having charge of the cleaning of pub
lie sewers, and was suffered 10 remain
open during the night, without any
light to give notice Of its presence.
1t was held that the city was liable
The appellants counsel also refer
to the case of Furze as. The Mayor,
d-c., of the city of Nel0 York, 3 Hill,
6l2 IN which it was held that the
city, having constructed a sewer for
public use, was bound to keep it IN
proper condition and repair,
A municipal corporation is, for the
purposes of its creation, A government
to a limited extent, sover-
eign powers, which, in their nature,
are either legislative or judicial, and
may be denominated governmental or
public. The extent to which it may
be proper to exercise such powers, as
we'll as the mode Of their exercise by
he corporation, within the limits pre-
'cribed by the law creating them, are
)f necessity entrusted to the judg-
nent, discretion and will of the prop
srly constituted authorities to which
hey are delegated. And, being pub
ic and sovereign In their nature, the
is not liable to be sued,
either for a failure to exercise them,
nor for errors committed IN their ex-
,rcise. But when duties Of purely
character are expressly
,njOined by law on such corporations,
)T arise by necessary Implication, they
IRE responsible for any damages re- |
iulting to individuals from neglect to
perform them, or from their perform
ance In an improper manner. These
.wO classes of duties aud obligations
ire sometimes so Intimately connect
ID, that it is not always very easy to
distinguish the one from the other.
1t is conceded by the counsel for
he appellants that the power confer
ed on the city to organize and regu-
ate a fire department, for the purpose
If preventing and guarding against
damage by fire, is legislative or judi
.ial one, and that if the Common
Jouncil had deemed it inexpedient to
undertake its execution, and had done
lOthing in reference to it, the plain
ifs would be without remedy. But
he right to recover seems to be based /
IN the idea that the Council, having
undertaken to execute the power, or,
n other words, to act under it, all |
Use became mere ministerial duties, I
md that the city thereby became re- /
ponslble that everything within the /
cope of the power conferred to render !
he tre department complete and eff |
.ient should be done; or, in other I
words, that the power should be exer- 1
Used to the fullest extent necessary to |
protect the citizens from loss by fire,
nd that any failure therein would /
ender the city liable for such losses. /
We are not aware Of any authority to /
ustain so broad a proposition, and |
10 not think that any such can be |
oUnd. A proper supply of water is /
uite as essential in the extinguish-
nent of fires as proper FIRE engines,
nd one of the causes of complaint is
hat the Common Council negli-
emily and carelessly failed to provide
roper supplies of water"
Among the powers conferred upon
he Council IS to make, establish
nd regulate public wells, cisterns,
and pumps" Now it would
eem difficult to contend. with any
egree of plausibility, that because /
he Council should provide for the
of wells and cisterns In