
    Miles E. McCutcheon, adm’r v. The Common Council of the Village of Homer.
    
      Municipal Corporations — Injury resulting from legislative act — Bes judicata.
    
    A municipal corporation is not liable as for misfeasance for the legislative action of the common council in widening a street so as to bring within its limits an existing nuisance.
    
      A municipal corporation is not liable for an. injury sustained by an individual in consequence of neglect to put and keep a public way in repair.
    A decision by a majority of a court is conclusive, and a change in the composition of the court will not warrant a re-opening of the controversy unless the court itself orders a reárgument.
    Error to Calhoun.
    Submitted April 27.
    Decided April 30.
    Trespass on the case. Plaintiff brings error.
    
      John G. Patterson and Wm. TI. Brown for plaintiff in error.
    A municipal corporation is liable in an action for private injury caused by its active misfeasance in negligently creating a dangerous nuisance in the public street, Whart. Neg. 265; Shear. & Eedf. Neg. § 133; Dillon Mun. Corp. § 789; Potter Corp. § 407; Cooley on Torts 608; Irvine v. Wood 51 N. Y. 224; Davenport v. New York 37 N. Y. 568; Conrad v. Ithaca 16 N. Y. 158; West v. Brockport id.’ 161; Wallace v. Mayor 2 Hilt. 440; Prentiss v. Boston 112 Mass. 43; Mayor v. Lasser 9 Humph. 757; Emery v. Lowell 104 Mass. 13; it is liable in a civil action for special injuries resulting from neglect to perform the duty of keeping in safe condition the bridges, streets and sidewalks within its limits if it is its duty to repair or keep them safe, resting upon the corporation as such, and supported by the power to levy taxes ■ or impose local assessments, Cooley Const. Lim. 247-9; Cooley on Torts 625; Shear. & Eedf. Neg. §§ 149; Dewey v. Detroit 15 Mich. 307; Barnes v. Dist. of Colombia 91 U. S. 540; Mayor v. Sheffield 4 Wall. 189; Weighiman v. Washington 1 Bl. 39; Chicago v. Robbins 2 Bl. 418; Nebraska City v. Campbell id. 590; Omaha v. Olmstead 5 Neb. 446: 16 Am. L. Eeg. 356; Palmer v. Lincoln 5 Neb. 140; Kiley v. Kansas City 69 Mo. 102: 21 Alb. L. J. 14; Bassett v. St. Joseph 53 Mo. 290; Wood on Nuisances § 744; Addison on Torts 1315; Hutson v. New York 5 Seld. 163; Cusick v. Norwich 40 Conn. 375; Boucher v. New Haven id. 457; Cook v. Milwaukee 24 Wis. 270; Perkins v. Fond du Lac 34 Wis. 435; Sterling v. Thomas 60 111; 264; Chicago v. Mayor 18 111. 349; 
      Bloomington v. Bay 42 111. 503; Browning v. Springfield 17 HI. 143; Joliet v. Verley 35 111. 58; Atchison v. King 9 Kan. 550; Cleveland v. St. Paul 18 Minn. 279; Shcurtle v. Minneapolis 17 Minn. 308; Phelps v. Mankato 23 Minn. 276; Covington v. Bryant 7 Bush 248; Sawyer v. Corse 17 Gratt. 241; Richmond v. Long id. 375; Baltimore v. Pendleton 15 Md. 12; Baltimore v. Marriot 9 Md. 174; Commissioners v. Duckett 20 Md. 468; Mayor v. Cooley 55 Ga. 17; Parker v. Macon 39 Ga. 725; Erie v. Schwingle 22 Penn. St. 384;- Pittsburgh v. Crier 22 Penn. St. 54; Rusch v. Davenport 6 Clarke 443; Rowell v. Williams 29 la. 210; Koester v. Ottumwa 34 la. 41; Centerville v. Woods 57 Ind. 192; Loury v. Delphi 55 Ind. 250; McDonough v. Virginia City 6 Nev. 90; Mach v. Salem 6 Oregon 275; Niblett v. Nashville 12 Heisk. 684; Tallahassee v. Fortune 3 Fla. 19; Smoot v. Wetumpka 24 Ala. 112; Buffalo v. Halloway 3 Seld. 493; Lloyd v. New York 1 Seld. 369, White Lead Co. v. Rochester 3 Comst. 463; Storrs v. Utica 17 N. Y. 104; Wendell v. Troy 39 Barb. 329; Grant v. Brooklyn 41 Barb. 381; Child v. Boston 4 Allen 41; it is held liable in Michigan for injuries to property caused by private nuisances created and continued by its officers and agents, Pennoyer v. Saginaw City 8 Mich. 534; Ashley v. Port Huron 35 Mich. 296; and for injury caused by a nuisance arising from opening its sewers, Detroit v. Corey 9 Mich. 165.
    
      Byron Smith and James H. Campbell for defendant in error.
    The power of a municipal corporation in laying out highways and opening and grading streets involves the exercise of discretion on the part of the authorities, Dermont v. Mayor 4 Mich. 442; and no action will lie for an injury resulting from the use of legislative discretion, Detroit v. Blackeby 21 Mich. 84; Larkin v. Saginaw County 11 Mich. 88; Detroit v. Beckman 34 Mich. 125; Lansing v. Toolan 37 Mich. 152 : 88 Mich. 315.
   Cooley, J.

The record in this case presents two questions of law. The first of these is, whether a municipal corporation is liable as for misfeasance in extending the bounds of one of its streets by widening it; thereby bringing an existing nuisance within the street limits. This question is answered by repeated decisions of this court. The action which widened the street was legislative, and no charge of misfeasance can be predicated thereon. Larkin v. Saginaw County, 11 Mich. 88; Pontiac v. Carter, 32 Mich. 164; Detroit v. Beckman, 34 Mich. 125; Lansing v. Toolan, 37 Mich. 152.

The second question is whether such a corporation is liable for the injury sustained by an individual in consequence of the neglect to put and keep one of the public ways in repair. This, it is conceded, was decided in the negative in Detroit v. Blackeby, 21 Mich. 84. It is .said, however, that the decision in that, case was by a divided court, and it is urged that it should be reviewed in the light of more recent decisions.

■ The case of Blackeby was very fully and carefully considered, and there can be no ground for supposing that either of the judges participating therein has since changed the opinion then deliberately formed and expressed. The case was decided on the concurring opinions of a majority of the court, and the decision is authoritative. There has been a change in the court since that time, but it would be mischievous, in a high degree to permit the re-opening of controversies every time a new judge takes his place in the court, thereby encouraging speculation as to the probable effect of such changes upon principles previously declared and enforced in decided cases. Nothing is more important than that the law should be settled; and when a principle has once been authoritatively laid down by the court of last resort, it should be regarded as finally settled. If the court itself desires a reargument, it is to be presumed it will be ordered when, the occasion presents itself; but unless that is done, a deliberate decision should not be regarded as open to controversy.

The judgment must be affirmed with costs.

The other Justices concurred.  