The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1910-12-30

The following is the opinion of the
state supreme court in the cases of
Kate Flanagan and Della Keever.
This is an action for death by
wrongful act occasioned by the neg
ligence of the defendant city.
The complaint alleged that defend
ant, a municipal corporation, negli-
gently allowed waters and the water
supply in its waterworks system to
become infected and polluted with
poisonous substances land large
quantities of filth and sewage, all
of which were saturated with the
germs Of diseases and did
carelessly, negligently per-
NIT 49,. filthy, foul and dan
gerous substances, common sewage
and other filth to escape into and
saturate the water supply" that by
reason thereof the water became i'm
minently dangerous to life and health
of which defendant had full notice
tate, a citizen and resident, used the
water. contracted typhoid fever and
died in consequence. The complaint
set forth additional facts as the
right of the administrator to recover.
Defendants demurrer to plaintiffs
complaint was sustained. From that
order the plaintiff appeals. 1t is
to be noted that the complaint in
the case at bar set forth not mere
action against the defendant to re-
cover damages because the city failed
to provide an adequate supply Of
pure water. The question here is
whether the city is liable for, among
other things, recklessly causing dam
gerous substances like common sew.
age and other filth to saturate it's
water supply and the wells, mains
and appurtenances thereto.
The first essential question is
whether the city is exempt because
it was carrying out a governmental
function, or whether it is liable be-
cause it operated the waterwOrks in
its private or corporate function.
The defendant naturally insists that
it was performing merely a govern
mental function. There is ambiguity
in that term as used in this con-
nection. 1t may mean that the op-
GRAFTON of waterworks by a munich.
pality is intre wires as distinguished
from ultra wires; or it may mean
that such function is public as dis
tinguished from private or proprie-
tary, in which capacity the city
purposes and for its own advantage
to conduct certain operations and is
held responsible for negligence there
in, although the work is done ulti-
mately for the benefit of it's cti-
zens. Many of the authorities to
which defendant refers us properly
held that city may properly operate
waterworks. They have no tendency
whatever to determine whether or
not the city is or is not exempt in
its operation of waterworks.
Defendant also insists that the city
can make no profit out Of its opera
ton of these waterworks. Doubtless
this is in a general way true; at
all events it may be here admitted.
But the sequence which defendant
seeks to draw does not at all follow;
l. e., that therefore it should be ex-
empted from all liability for mis-
management. For the city is liable
for neglect in connection with it's
streets, sidewalks and sewers, from
which in their very nature no profit
is or can be made. The city operates
the 'waterworks for profit in the
sense that it is voluntarily engaged
in the same business which when
conducted by private persons is OPP
Grated for profit. The city itself
makes a reasonable. and varying
charge. The undertaking is partly
commercial 1t is enough that the
city is in a profit making business.
THE city is exercising a special priv
ilege for it's own benefit and advan.
tage although portion of the water
is used by the city for protection
against fire and in promoting the
public health. "Hammersley, j., in
Horrigan V. Norwich II Conn. 35S.
The English authorities regard cities
in such matters as "SubstitutiOnS on
large scale for individual enter.
prises. Mr.. Justice Blackburn in
Mercy Deck Trustees V. Gibbs. L..
r. l Eng. & Ir. App. cases at page
107 approving Mr.. Justice Meller in
Coy V. Wise, B. & S. 440.
Finally defendant insists that it
would not be sound policy to open
the door and permit actions like the
present to be maintained for the
ant city as well as any other city
would be liable at any time to have