
    City of Toledo v. Cone.
    1. The principle of respondeat superior applies to municipal corporations, where the acts of their servants or agents refer to powers and duties ministerial in their nature and character.
    ' 2. A city organized under the laws of Ohio, held the title to and the right' of possession of a public cemetery located within its limits, which was under the management, control, and regulation of a board of cemetery trustees, chosen by the electors of the corporation and removable for cause by the city council — as provided in Chapt.'XXVX, of an act, “ To provide for the organization and government of municipal corporations,” passed May V, 1869 (66 Ohio Laws, 149). An employee, while engaged in the cemetery in improving a vault owned by the city, was injured through the carelessness and want of skill of the superintendent of the cemetery and the negligence of the trustees. The employee worked under and obeyed the orders and directions of the superintendent, and both received their appointment from the board of trustees, subject to the approval of the council. Held: That the city was liable for the injuries resulting to the employee.
    Error to the Court of Common Pleas of Lucas County. Reserved in the District Court.
    The defendant in error, Frank Cone, brought an action in the court of common pleas of Lucas_ county, against the plaintiff in error, the City of Toledo, to recover damages for personal injuries by .him sustained. The petition, filed March 8,1879, reads as follows:
    “ Frank Cone, plaintiff, says that the city of Toledo, defendant herein, is a municipal corporation, and a city of the first class, organized under the laws of the state of Ohio, and situate in the county of Lucas, and state of Ohio, and that it has been so organized for more than two years last past.
    “That for more than two years last past said city has owned and held the title to, and the right of possession of, certain burial grounds within said city, which had before that time been set apart and dedicated, and have been and still are used as public burial grounds, and as a public cemetery, commonly known and called by tbe name of “Forest Cemetery,” and said cemetery was not owned or under the care of any religious or benevolent society or any incorporated company or association.
    “ That during all that time said cemetery has been in the possession and charge of a board of three trustees, for that purpose elected by the electors of said city at the annual election for corporation officers, in accordance with the statutes of the state of Ohio, in such case made and provided, and said trustees have at all times had possession and charge, and the entire management, control and regulation of said cemetery as officers of said corporation, under and subject to the ordinances of said city; and as such officers have directed and had charge of all the improvements and embellishments of said grounds. That as such officers of said city they had full power to and did employ a superintendent of said cemetery and workmen and laborers therein, and placed and kept said superintendent in full charge and control of said workmen and laborers, and directed and required said laborers and workmen to work under and obey the orders and directions of said superintendent.
    “ That before and at the time of the happening of the events hereinafter set forth, one Edward Radbone was under and by the employment and appointment of said trustees and with the approval of the city council of said city, acting as superintendent of said cemetery with all the powers and duties of such superintendent as hereinbefore set forth, and this plaintiff and one Christian Hilk, under like employment and approval, were at the same time at work in and about said cemetery and upon the improvements thereon as common laborers, under the direction and control of said Edward Radbone as such superintendent.
    “ That in or about the month of May, 1878, said trustees directed certain improvements to be made, in and about the city vault in said cemetery. That said city vault was then owned by said city and was used for public purposes and for use by private persons, the reward and hire for the use of the same being paid to the said trustees, and the money so received by them required to be accounted for the same as proceeds of cemetery lots sold under and in accordance ■with the ordinances of said city, and was in the possession of and under the entire charge, management and control of said trustees as a part of said cemetery, and was in fact, a part of said cemetery.
    “ That said trustee directed the kind and character of such improvements, and the manner in which the same were to be made and ordered, directed and instructed said Radbone as such superintendent to make the same, and in so doing to use and employ the labor and services of this plaintiff and said Wilk as laborers and workmen in doing the same under his, the said Radbone’s direction and superintendence.
    “ That thereupon said Radbone, as such superintendent, did order and direct this plaintiff and said Wilk to work upon said city vault, and upon the vaults and earth connected with and around, or near to the same, and directed them fully as to the work to be done by them, and the manner of doing the same.
    “ That this plaintiff was by his said employment there, and at all times while doing said work, wholly under the control and direction of said Radbone as such superintendent in all matters pertaining to said work, and did in all things and at all times fully follow and obey all the orders and directions of said superintendent, while so engaged in and about said work.
    “ That a part of the work to be done in making said improvement in accordance with the order and direction of said trustees, and in the manner directed by them and by said superintendent, consisted in moving a portion or all of a large embankment of earth that rested upon or against the top and walls of said vault, and also certain walls of stone which had before that time been constructed.
    “ That the extent to which ■ said earth embankment or stone walls should be removed, and the manner of removing the same, and all other matters connected with the doing of said work and making the improvement so directed by them were, by said trustees, placed in the charge and control of said superintendent, who on his part assumed and exercised such control and direction, and neither plaintiff nor his co-laborer said Wilk had any charge, control or discretion in reference to said work or the manner of doing the same.
    “ That on or about the 4th day of June, 1878, while said work was in progress, said superintendent, in the morning of the day, at or about the usual time of commencing work, was present at said work and directed said plaintiff and said Wilk in the work which they were to do during the day in removing said earth and stone wall; and they commenced work and continued to work in the manner in which he had so directed until, while so at work, a large portion of said embankment suddenly gave way, and the earth fell upon this plaintiff, burying him beneath the same.
    “ That said embankment so gave way and fell upon this plaintiff without any fault on the part of this plaintiff or said Wilk, his co-laborer, and without any notice to this plaintiff that it was about to or would fall, or that he would receive any injury while so engaged in said work, nor did he have any means of escape from injury when it did fall. That said Radbone assumed to be competent, and this plaintiff then supposed he was skilled in and competent to manage and conduct said work — that this plaintiff was ignorant of any danger to himself in doing the work in the manner in which he was directed to do and was doing it, and had before the falling of said embankment been told by said Radbone that there was no danger that said earth would fall, or that he would be injured in doing said work in the manner in which he was so directed to do, and was in fact doing it, all which plaintiff then believed to be true.
    “ But plaintiff says that said embankment fell upon the plaintiff and he received the injury caused thereby, wholly through the want of skill of said superintendent, and his carelessness and negligence in ordering and directing the manner of doing said work, and his carelessness and negligence and want of skill in not providing means of support to said embankment of earth and wall, or otherwise protecting or providing for the protection of plaintiff while doing said work, and through the negligence of said trustees in not providing a competent superintendent for said work, and in not providing and furnishing plans and directions for doing the same in such manner that it might be done with safety and security to the plaintiff and other workmen engaged in doing the same, all which was without any fault or neglect on the part of the plaintiff or his co-laborer.
    “ And plaintiff says that when said earth fell upon him in manner aforesaid it broke his left leg in two places between the thigh and the knee, and seriously and permanently injured his left knee and his back, and seriously bruised and injured his face, head, neck and other parts of his body so as to render him entirely helpless for a long time. That it was necessary to have Ms leg set by a surgeon, and to have himself removed to a hospital and have medical and surgical care and attendance for the period of twelve weeks thereafter. That he has since been for nine months wholly unable to perform manual labor, and has been compelled to have board, care and nursing during all that time. That he has by reason of such injuries been subjected to great expense, in the sum of one hundred and fifty dollars for medical and surgical services and attendance, and in the sum of one hundred and fifty dollars for board, care and nursing while suffering from such injuries, and has suffered great pain of body and anguish and suffering by reason thereof. That he is of the age of twenty-three years, and before receiving such injuries was, and had always been in good health, and was then fully able to perform manual labor and earn the wages of a laboring man, and that his services as such were worth the sum of thirty dollars per month; that by reason of said injuries he has wholly lost the wages which he would otherwise have earned for the period of nine months, and that he has also been thereby permanently injured, so that he will for a long time hereafter be unable to do manual labor or earn wages for his support.
    “ Plaintiff further says, that on or about the 14th day of October, 18T8, he filed with the clerk of said city his claim for damages herein set forth, but said city has not settled or adjusted his said claim, or made him any compensation whatever therefor, but has neglected and refused, and still neglects and refuses so to do.
    “ That he has sustained damages by reason of the premises in the sum of five thousand dollars, for which sum, and for costs of suit, he asks judgment against the defendant.”
    To this petition a general demurrer was filed which was sustained; but upon a rehearing the demurrer was overruled, and the defendant excepted. An answer .to the petition was then filed; the case was tried by jury, and a verdict was returned for the plaintiff. The defendant moved to set aside the verdict and grant a new trial, alleging that the verdict was not sustained by the evidence, and was contrary to law, which motion the court overruled; and to the action of the court the defendant excepted, and judgment was thereupon rendered for the plaintiff for the amount of the verdict. No bill of exceptions was taken embodying any of the evidence at the trial, and the record shows no exception to the charge of the court.
    The defendant filed a petition in error in the district court, and assigned as error the following, to wit:
    1. That the facts set forth in the original petition filed in this cause are not sufficient to constitute a cause of action against said city of Toledo.
    2. That the court erred in overruling the demurrer of the city of Toledo to the petition of said Cone.
    3. That the court erred in overruling the motion of said city of Toledo to set aside the verdict and for a new trial.
    4. That the court erred in entering judgment for said Cone, when it should have been entered for the city of Toledo.
    In the district court the case was reserved to this court for its decision.
    
      JE. JP. Raymond, with whom were II. A. Chamberlain and Clarence Brown, for plaintiff in error.
    
      Upon the state of facts as disclosed by this defendant’s petition, we claim that he is not entitled to recover upon the principles of respondeat superior or upon any other recognized principle of law, for the following reasons, among others to wit:
    1. Our legislature has recognized the importance of hav ing public cemeteries and burial grounds, and has provided for the establishment thereof and the government of the same by a general law applicable alike to all the cities in Ohio.
    2. The duties required of the trustees of the cemetery are for .the benefit of the public, and not merely for the corporation as such.
    3. The city of Toledo has nothing to do with the tenure of office of the trustees of said cemetery, but the same was fixed by a general statute of the state.
    4. The trustees have under the law a jurisdiction of their own with distinct and specified duties to perform, and so long as they conform to the law are amenable only to the people who invest them with office.
    5. The trustees determine the terms of office of all the employees and agents and the amount of their compensation, Sec. 2522 — and make their own by-laws and regulations, Sect. 2524.
    6. There is no claim made in this case that any charge had ever been preferred against the trustees or the superintendent of said cemetery so as to subject them to a removal by the city council.
    7. In this case there is wanting the relation of master and servant, which relation brings with it the power to appoint, control and discharge at will.
    In view of the above and of the fact that the trustees are acting in obedience to a public statute and are not performing services purely local and ministerial and that they have discretionary powers vested in them under the statute, the plaintiff below ought not to recover in this action. Dillon on Mun. Corp., 3d ed., §§ 965, 974, 975, 976, 977; Wharton on Neg., § 191; Sherman & Redf. on Neg., §§ 120, 121, n. 2; Story on Agency, § 321, p. 400, n. 1; Wheeler v. City of Cincinnati, 19 Ohio St., 19; Western College v. City of Cleveland, 12 Id., 375 ; Diehm etc. v. Cincinnati, 25 Id., 305; Finch v. Board of Education, 30 Id., 37; Hill v. Boston, 122 Mass., 344; City of Richmond v. Long's Admr's, 17 Grattan, 375; Brown v. Inhabitants of Vinalhaven, 65 Me., 402; Brinkmeyer v. City of Evansville, 26 Ind., 187; Hafford v. New Bedford, 16 Gray, 297; Fisher v. City of Boston, 104 Mass., 87; Wightman v. Washington, 1 Black, 39-49; Brinkmeyer v. Evansville, 29 Ind., 187; Buttrick v. The City of Lowell, 1 Allen, 172; Pesterfield v. Vickers, 3 Coldwell (Tenn.), 205; McElroy v. Albany, 65 Ga., 387; Little v. Madison, 49 Wis., 605; Elliot v. Philadelphia, 75 Penn. St., 342; 20 Am. Rep., 709; Russell v. Mayor &c. of New York, 2 Denio, 461; Ogg v. City of Lansing, 14 Am. Rep., 499; Mitchell v. Rockland, 52 Me., 118; Mead v. New Haven, 40 Conn., 72; Elliott v. Philadelphia, 75 Penn. St., 342; Grant v. Erie, 69 Id., 420; Heller v. Sedalia, 58 Mo., 159; Jewett v. New Haven, 38 Conn., 368; Maximilian v. Mayor, 62 N. Y., 160; Dargan v. Mayor of Mobile, 31 Ala., 469; Stewart v. New Orleans, 9 La. Ann., 461; Story on Agency, § 319 a, 321; Story on Agency, §§ 308, 311, 320; Nowell v. Wright, 3 Allen, 166.
    
      Hamilton Ford, and. Pratt, Wilson Pratt, for defendant in error.
    The question in this case is, in the prosecution of the improvement to the cemetery in question, through its trustees, was the city of Toledo manifesting any of the attribute's of sovereignty, appearing or acting in its political character, or in the exercise of a governmental function, either legislative or judicial? If so, then, she is not liable. If not, then she is clearly and unmistakably liable.
    
      City of Dayton v. Pease, 4 Ohio St., 80; Goodloe v. Cincinnati, 4 Ohio, 500; Smith v. Cincinnati, 4 Ohio, 514; Rhodes v. Cleveland, 10 Id., 474; Crawford v. Delaware, 7 Ohio St., 459 ; Commissioners v. Mighels, Id., 109 ; McComb v. Akron, 15 Ohio, 475 ; Cincinnati v. Cameron, 33 Ohio St., 366; Commissioners v. Duckett, 20 Md., 469; City of Detroit v. Corey, 9 Mich., 165; The Mersey Docks v. Gibbs, 11 House of Lords Cas., 686; The Mersey Docks v. Price, Id.; Thayer v. Boston, 19 Pickering, 511; Anthony v. Adams, 1 Met., 285; Delmonico v. The Mayor, etc., 1 Sanford, 222; Scott v. The Mayor, etc., 37 Law and Eq., 495; Pittsburg City v. Grier, 22 Penn. St., 54; Sears v. The Turnpike, 7 Conn., 9; Riddle v. Locks and Canals, 7 Mass., 187; Henley v. Lyme, Regis., 5 Bing., 91; Mayor of Lyme in Error, Cowper, 87; Mayor, etc. of New York v. Furze, 3 Hill., 612; Bailey v. The Mayor, etc. of New York, Id., 531; Lloyd v. The Mayor, etc. of New York, 1 Seld., 374; Mears v. The Commissioners of Wellington, 9 Ired., 73 ; Cuerleff v. The Mayor of Albany, 2 Barber, Sup. Ct., 190; Rochester White Lead Co. v. Rochester, 3 Comstock, 463; Clark v. Washington, 12 Wheat., 40.
    The statute in force at the time this improvement was in progress is found in 66 Ohio Laws, 210, which gives the management and control of the cemetery to the trustees, subject to the ordinances of the city. The superintendent can only be appointed with the approval of the city council. The whole tenor and scope of the law shows that in all things the trustees and superintendent hold and exercise their powers in subordination to the city council to the extent even of the removal of the trustees themselves from office.
    It was within the corporate power of the city to provide a cemetery for the burial of the dead. It was within its power to improve and beautify this cemetery, to sell lots, build vaults, receive the proceeds of the sales of such lots and the rents of such vaults, appropriate them to the payment of the expenses of maintaining and improving such cemetery, and levy and collect taxes to pay for grounds and improvements.
    In the determination of the question, whether it would make suoh purchase or improvements, its officers acted in a legislative capacity. If it omitted to provide a cemetery, or having provided the ground, left it as an open barren field, the failure would not give a cause of action of which the courts could take cognizance.
    But when it has determined, by the proper officers, to provide the cemetery and make the improvements, then all the acts of the officers, agents or employees of the city, in carrying this determination into effect, are purely ministerial.
    
    For any negligence of any such officers, agents or employees, in the performance of any such act, the city is as clearly liable as any other corporation or individual.
   Dickman, .T.

Whether the verdict is supported by the evidence, we are not called upon to determine, there being no portion of the evidence embodied in the record by bill of exceptions. Nor need we inquire whether there was error in the charge of the court to the jury, as no such error is assigned. In determining whether the verdict is contrary to law, the controlling question that arises is, whether a cause of action sufficient to sustain the judgment rendered is stated in the original petition. Whatever is alleged in the petition, which upon issue joined requires proof, will, after verdict for the plaintiff, be presumed to have been proved. 1 Chitty’s PL, 673. And the objection that the facts stated'in the petition, and thus presumed to have been proved, are not sufficient to constitute a cause of action, may be made at any time before final judgment in error, if proper notice of such objection appear on the record in the reviewing court, before the case is heard. Youngstown v. Moore, 30 Ohio St., 133. Such notice in the case before us, is apparent in the demurrer to the original petition, the exception taken to the overruling of the same, and the assignment in the district court as error in the record, that the court of commop pleas erred in overruling such demurrer.

In the light of the record before us, the fact that Cone, the defendant in error, was injured through the neglect and want of care and skill of the superintendent and trustees of the cemetery, is not brought in issue. Admitting the truth of the allegations in the original petition, the essential question is, whether the city of Toledo was liable to Cone, for the injuries he received while engaged in the cemetery in improving the vault which was the city’s property, and while working under and obeying the orders of the superintendent — the superintendent and Cone himself having been appointed, and the trustees having been elected, according to the provisions of sections 361 to 376 inclusive, of the act “ To provide for the organization and government of Municipal Corporations,” passed May 7, 1869 (66 Ohio L., 149).

The rule respondeat superior, though well recognized in fixing the liability of private corporations and natural persons, has been a source of much doubt and perplexity in its application to municipal corporations. It is however now well established, that corporations of the latter class, when acting in a certain character or capacity, are liable as superiors and employers, for injuries to third persons resulting from the negligence and unskillfulness of their agents or servants, while in the line of their employment, in the same manner and to the same extent as private corporations or private individuals. Under analogous conditions, there seems to be no foundation in reason or public policy, for exempting such public corporations any more than private individuals, from liability for injuries inflicted on others through the negligence of their agents.

The underlying principle of municipal government is, that the management of local affairs shall be intrusted to local authorities, while general affairs are left to the state legislature. Under the power given by the constitution to the general assembly, to provide for the organization of cities and incorporated villages, these corporations are made the depositaries of certain limited governmental powers, to be exercised on behalf of the state for the public welfare. They are agencies or instrumentalities to which the general assembly, vested with the legislative power of the state, delegates a portion of its governmental power, in ordek to meet those local wants of the people in cities and villages, for which state laws make only general provision, leaving a more particular provision to local councils. The manner and extent, to which legislative and governmental powers delegated to municipal corporations for the public good are to be exercised, must rest, in a large measure, in their judgment and discretion; but, acting as state instrumentalities, they cannot be held liable to individuals for a defect in the execution of such powers, unless a right of action is given by statute. Iudeed, in the distribution of the powers of government — as a part of the machinery of the state government — they enjoy, to a certain extent, an immunity from civil action in the performance of their legislative functions, like that of the sovereign state itself.

This principle is recognized in Wheeler v. The City of Cincinnati, 19 Ohio St., 19, which was an action to recover damages arising from the casual destruction of the plaintiff’s house by fire, through want of an efficient fire department. As an obligation rested upon the state, to aid by appropriate legislation, in the protection of the property of its citizens, it was held in that case, that the powers conferred upon the municipal corporations of the state to establish and organize fire companies, procure engines, etc., to preserve buildings and property within their limits from conflagration, are in their nature legislative and governmental, and that such corporations cannot be held liable to individuals for any defect in the exercise of those powers.

So also in Western College etc. v. The City of Cleveland, 12 Ohio St., 375, it was held, that the defendant was not liable for the failure of its police to preserve the peace and prevent loss by the violence of a mob. It being the duty of the state government to secure to the citizens of the state the peaceful enjoyment of their property and its protection from wrongful and violent acts, power is delegated through the organization of municipal corporations to aid in the accomplishment of that object. But, if municipalities to which such governmental authority might be given should fail to effectively exercise it, they are not to be held responsible to individuals for the consequences. As said by the court, “ it is not the policy of governments to indemnify individuals for losses sustained, either from the want of proper laws or from the inadequate enforcement of laws made to secure the property of individuals.”

But within the sphere of their duties, municipal corporations are to be regarded in another and very different aspect. While they act in a public character or capacity, and exercise public powers, they may and do act also in a private capacity, like private corporations, and as such are held to a like responsibility. Thus, if a municipal corporation acquires real or personal property, and in the discharge of what may be deemed ministerial duties in respect to the same, an individual receives injury through the negligence of its officers or servants, it should be held responsible to that individual. Though not liable for a defect of judgment or discretion, while acting as a. state instrumentality in the exercise of legislative functions,-yet, having like a private corporation or natural person become the owner or obtained the control of property, it should not be relieved from the operation of the general maxim, that one should so use his own as not to injure that which belongs to another. Thus, if a city neglects its ministerial duty to cause its sewers to be kept free from obstructions, to the injury of a person who has an interest in the performance of that duty, it is liable to an action for the damages thereby occasioned. Emery v. Lowell, 104 Mass., 13. So if a city owns a wharf, and has the exclusive control of it, and receives wharfage or- profit for the use thereof, it will be held liable to a private action for an injury suffered by an individual by reason of a defect in the structure. Pittsburgh v. Grier, 22 Penn. St., 54. And the same rule applies in respect to a city’s failure to keep its streets in a safe condition for public use, where this is a duty resting upon it.

Of course, before a municipal corporation is subjected to liability for the misfeasance or neglect of its agents or servants, it becomes material and sometimes' difficult to determine whether they are in fact the agents or servants of the corporation. It is said by an approved text writer that if the municipal corporation appoints or elects them, and can control them in the discharge of their duties, can continue or remove them, can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the corporation will be held responsible for .their acts, within the scope of their employment. And in broad terms, to the same effect, it is laid down in Wood on Master and Servant, sec. 459, that if even an independent public officer, or one whose duties are defined or specified by law, is in any measure subject to the direction or control of a municipal corporation, and acts in obedience to its instructions, the relation of master and servant exists, and the rule of responde,at swj^rior-applies. The rule is predicated upon the right of the ' employer to discharge and control the servant. Blake v. Ferris, 5 N. Y., 48.

Applying these principles to the undisputed facts in this case, we think the cemetery trustees and the superintendent were placed in such relations to the city of Toledo, by the act of May, 1869, under which they were elected, as to make them, the agents of the city, and to render the corporation responsible to Cone for 'the injury he received. At the time he was injured the city owned, held the title to, and the right of possession of the cemetery. The cemetery was in the possession and charge of’ a board of three trustees of cemeteries, -who had the entire management, control and regulation of the same, and who had been elected for that purpose by the qualified electors of the city, at the annual election for corporation officers, in-accordance with the statute in such cases made and provided. All vacancies occurring in- the board were required by the statute to be filled by appointment of the city council, and the council was clothed with power to remove any trustee for inattention to his duties, want of proper judgment, skill or taste for the due discharge of the duties required of him, or for other good cause. The trustees were authorized to appoint, subject to the approval of the council, all necessary superintendents, employees and agents. Under a-superintendent thus appointed Cone was employed, and was required to obey his orders and directions. The trustees were required, when necessary, to institute suits in the name of the corporation for the protection of the cemetery, and to see that all ordinances of the city passed for that purpose were duly enforced, The by-laws and regulations made by the trustees were not to be inconsistent with the ordinances of the corporation; and they were to perform all such other duties, not specified in the statute and pertaining to their office, as the council of the corporation might by ordinance prescribe. While the trustees might appoint one of their number to sell burial lots, notice of such appointment, upon its being made, was to be communicated to the council. All moneys received and disbursed by them as trustees were to be reported quarterly to the council. They were also to report annually in writing to the council, the number of lots sold during the year preceding, with a detailed statement as to receipts, expenditures and investments during the same period, and such other matters as the council might require. And whenever in their judgment an enlargement of the cemetery grounds should become necessary, the trustees were to report the fact to the council for its action in the premises.

We think it is evident from these statutory provisions that the trustees of the cemetery in question were elected by the people of Toledo, to take charge, as their agents, of the cemetery property, and acted in that behalf in subordination to and subject to removal by the council of the cor poration. • The improvement or repair of the city vault, through their agency and that of the superintendent, was not a legislative or governmental act on the part of the city, but was merely the discharge of a ministerial duty, such as the city performs in repairing or improving ijfcs streets, sewers and wharves. It lay within the legislative capacity,' judgment and discretion of the city to provide a cemetery for the burial of the dead, and to build requisite vaults; but, having become the owner of such property, the city in managing it was held to the same degree of care in preventing damage to others as would be required of natural persons. By section 8 of the act of May, 1869, municipal corporations are made capable of acquiring, holding and possessing property, real and personal. Having such power, there would seem to be no more valid reason for exempting them from liability for private injuries caused by the improper management of their property than for exempting private Corporations and natural persons under like circumstances. ; In Hill v. Boston, 122 Mass., 344, the court, in tracing the line of municipal liability, say, that as to common sewers built by municipal corporations under a power conferred: by law, the power of determining where the sewers shall be made involves the exercise of a quasi judicial discretion, and therefore no action lies for defect or want of sufficiency in the plan or system of drainage adopted within the authority so conferred; but, that the duty of constructing the sewers and keeping them in repair is merely ministerial, and therefore for neglect in the con struction or repair of any particular sewer, whereby private property is injured, an action may be maintained against the city. ■

It is true that the election and term of office of the trustees were fixed by a general statute of the state, but the law did not require the city of Toledo to own or maintain the cemetery in question. Having however voluntarily acquired the cemetery, and constructed the city vault as a part thereof, the city acquiesced in the provisions of the statute, and accepted.the trustees and the superintendent by them appointed as its lawful agents for the management and regulation of the property. In. Bailey v. The Mayor etc. of the City of New York, 3 Hill, 531, the action was for injuries occasioned to property by the negligent and unskillful erection of a dain on the Croton river for the purpose of supplying the city with water. The principal ground taken in defense was,, that the defendants were not chargeable for negligence or unskilfulness in the construction of the, dam, inasmuch as the water commissioners, under whose superintendence and control the work.was done, were not appointed by them, nor subject to their direction or control, but.were appointed by the governor of the state, with the advice and consent of the senate, and were answerable for their official conduct to the state alone, which could remove them at pleasure. But the court held that the commissioners, though appointed by the state, were the agents of the corporation, and that the latter was therefore liable; that it being provided by the charter granted to construct the work, that the agents for executing the work should be appointed by the state, an acceptance of the charter by the grantees would render the agents their own. This authority becomes of increased force when it is considered that the cemetery trustees were elected by the qualified electors of Toledo, and were answerable for their official conduct to the city council.

The cemetery and vault were a source of benefit -and advantage to the corporation, and involved the same responsibility for their unsafe and improper management which pecuniary and proprietary interests entail upon natural persons. By an amendment of section 371 of the act of May, 1869 (68 Ohio Laws, 130), the city had authority to charge for burial lots, sufficient not merely to keep in order and embellish the grounds, but also to reimburse the corporation for the cost of lands purchased or appropriated for cemetery purposes. The city vault was used for public purposes, but it was also used by private persons for reward and hire, the money which they paid being accounted for by the trustees, as they accounted for the proceeds of cemetery lots by them sold for the city. The reimbursement of the corporation treasury and the emolument derived from the use of the vault, were for the special local benefit of the corporation, and the state at large had no interest therein. The doctrine seems to be well sustained that where a municipal corporation owns property, and for its own benefit derives pecuniary emolument or advantage therefrom in the same way *a private owner might, it is liable to the same extent as he would be for the negligent management thereof to the injury of others. Oliver v. Worcester, 102 Mass., 489, and eases cited. In Bailey v. The Mayor etc. of the City of New York, supra, the court, in speaking of the grant for the .erection of the water works, say, “ The state, in its sovereign character, has no interest in it. It owns no part of the work. The whole investment under the law, and revenue and profits to be derived therefrom, are a part of the private property of the city, as much so as the lands and houses belonging to it situate within its corporate limits.” This language is not inappropriate to the case at bar. It is suggestive of facts of a kindred nature, which contribute toward fixing upon the plaintiff in error, though a municipal corporation, the same liability which private corporations or natural persons would incur for the neglect of their agents or servants in the care and management of their property.

Upon the facts disclosed by the record, we are of opinion that there was a cause of action in favor of the plaintiff below, and that the judgment entered on the verdict for the plaintiff should not be reversed.

Judgment of the court of common pleas affirmed.  