
    WILLIAM BARNES vs. THE DISTRICT OF COLUMBIA.
    At Law.
    No. 9239.
    I. The act of Congress to provide a government for the District of Columbia confers such powers only as are granted in the statute creating that government, and such powers as are necessary to carry into practical effect those which are expressly granted.
    II. This act confers upon the government it creates no control over the avenues, streets, or alleys in the District; nor does it impose on it any duty to repair or keep them in order, and therefore an action for an irijury caused by a defect in one of the streets will not lie against the District.
    III. The act creates the hoard of public works, and provides that they “ shall have entire control of the streets, and shall make all regulations for keeping them in repair,” and the members of the board are to be appointed and paid by the United States. It is, therefore, held that they act independently of the municipal government of the District, and that the District is not liable in an action at law for damage-occasioned by the negligence or misconduct of the said hoard.
    IY. On February 5,1867, Congress authorized the Baltimore and Potomac Railroad to construct a lateral branch of their road into the District of Columbia, and prescribed how the road might pass along the public streets and alleys to the point of terminus within the city of Washington, and in no way subjected tbe railroad corporation to the control or supervision of the municipal government of the said city, and it is, therefore, held that said corporation was exempted from all interference from such city government, and that it was erroneous to admit in evidence on the trial an ordinance of the common council in reference to the use of a street by said company.
    STATEMENT OF THE CASE.
    The plaintiff Sues’ the District of Columbia for an injury alleged to have been received by him on K street, southeast, in the city of Washington. He claims that while traversing the street in question in the evening, after dark, he fell into au excavation and injured one of his legs. The excavation was made by the Baltimore and Potomac Railroad Company in constructing its track under the acts of Congress which authorized the company to construct a lateral branch into the District, and to use the streets of the city for that purpose. The court instructed the jury on the trial of the case that if the District had notice of the existence of the excavation, the action would lie against it for the injury. The case was tried March, 1873, and a verdict rendered in favor of the plaintiff for $3,500. A motion for a new trial was overruled, and the case comes here on exceptions.
    The first of these exceptions is to the admission of an ordinance of the late corporation of the city of Washington, together with a plat in regard to changing the grade on K street, and giving permission to the Baltimore and Potomac Railroad to construct their road thereon; and the other exception related to the liability of the District of Columbia when it was not invested with any care or control of the streets and avenues. The charge of the court was also excepted to, so far as relates to the liability of the District for the injury complained of.
    R. K. Elliot for plaintiff.
    I.
    The ordinance of the late corporation of Washington, to which exception was taken by defendant, was properly read in evidence, and the accompanying plat, being a part thereof, was properly exhibited to the jury.
    The ordinance was a valid, subsisting act, in full force and effect at the time of the occurrence of the accident to the plaintiff, and at the time of the trial at the circuit, and inasmuch as defendant is the legal successor of the corporation that passed the ordinance, it was bound by it, and bound to take notice thereof.
    The act incorporating defendant continued the ordinance in force, and it was notice to defendant, its officers and agents, that the Baltimore and Potomac Railroad Company had been authorized to change the grade of a portion of K street, S. E. Dillon on Mun. Cor., §§ 288, 289, 290.
    Defendant was, therefore, bound to take notice of the change of grade made in pursuance of that ordinance, and resulting in the excavation or pit-fall complained of; and in so far as the ordinance tended to prove by what authority the change of grade was made, and the effect thereof upon the remainder of the street, it was of course competent evidence, but it did not tend to connect the defendant with the construction of the railroad, as that question was not in the case, but it merely tended to show the existence of an ordinance authorizing the change of grade, and hence the excavation, and as that ordinance, within the municipality, had the force of law, defendant was bound, at his peril, to notice it. Ibid., § 245.
    
    II.
    The fact that the board of public works is appointed and paid by the United States, does not render its members officers, of the United States, in respect to their municipal or local duties.
    The majority of the principal officers of the government of the District of Columbia, the defendant here, are appointed and paid by the same authority.
    It is not correct as a proposition of law, nor is it correct in point of fact, that “ all the functions of the board are derived from the United States.” (See act of Congress cited above.)
    The defendant, as a municipal or local government, can interfere with the streets of the city, and has interfered therewith. It has conferred on the board all the specific power and authority it possesses in relation thereto, by numerous acts of its legislative assembly, passed at divers times during its several sessions.
    The 37th section of the act of Congress, creating defendant, does not constitute the board an independent body of public agents whose functions concern the State at large.
    They are peculiarly local or municipal officers, whose duties concern the municipality alone. They have no fund, and have no power to raise a fund.
    They have no subordinate officers, and no power to appoint them independent of the will of the defendant.
    They can do nothing in respect to the streets, avenues, &c., without obtaining the sanction of defendant, and an appropriation of funds necessary for the performance of' the work. They act under the direction of the defendant, make contracts binding upon it by its authority, but not otherwise; report to it, execute its laws, enforce its ordinances, expend its appropriations, use its officers, and direct and perform such, work as may be imposed upon them by the defendant, in respect to the local or municipal affairs of the municipal government as such. They are, therefore, by adoption at least, the agents of or a branch of the government of the District of Columbia. Wherefore their acts of omission and commission, within the scope of their authority, become ex necessitate the acts of the defendant. Bailey vs. The Mayor, 3d Hill, 358, 531; S. C. 2d Denio, 450; Dillon on Municipal Corporations, § 32; Sherman & Redfield, §§ 155, '73; Thayer vs. Boston, 19 Pick., 511.
    It is not contended that defendant could prohibit or control the excavation, but it could have warned the citizen of its existence, and it was bound so to do or cause the railroad company to do it.
    The suit in this case should not have been brought against the board of public works, for if they are, in law, what the defendant contends they are, to wit, an independent body of public agents, they are not suable in a private action by a citizen for negligence in the performance of their duty — they are answerable only to the State.
    The fact that the board of public works, as such, or as individuals, can sue, is no reason why the defendant here cannot be sued. Neither is it claimed that the defendant and the board are both liable to the plaintiff in this cause — the action is against the municipal corporation alone.
    There was no error in the charge of the court to the prejudice of the defendant. The law as stated therein has been uniformly held by the courts in respect to the liability of municipal corporations for negligence, and does not require the citation of any authorities to sustain it, in addition to those to which reference has already been made.
    
      William A. Cook and Enoch Totten for defendant:
    The ordinance of the city of Washington was irrelevant.
    
    It was not the act of the District of Columbia.
    Received as evidence, allowed to be considered by the jury, its effect was injurious to the defendant; could not he otherwise. It tended, inevitably, to connect the District of Columbia with the construction of the Baltimore and Potomac Road $. to create the impression that the District authorized and sanctioned it; and was, therefore, responsible for the evidence of the excavation and the injury received by the plaintiff. It placed the defendant in an unfair and incorrect attitude before the jury.
    Evidence which does this is always improper. Its effect on a verdict must be unjust.
    The District of Columbia^ under the act of Congress creating-the present government of the District, has no control over the-avenues or streets of Washington. The “ entire control,” by the 37th section of the organic act, is conferred on the board of public works. 16 Stats, at Large, p. 126.
    And this board is not only appointed and paid by the-United States, but all its functions are derived from the United States.
    Hence the District of Columbia, as a municipality or territory, cannot interfere with the streets. It is not charged with the control of them for repairs or otherwise. It cannot alter or modify the enumerated or specific functions of the board. How, then, can it be held responsible for defects in the streets and avenues ?
    It is true, it may make appropriations for the improvement or repair of the streets; but it is not required to do so.
    Whether it will do so or not must depend exclusively on the judgment or discretion of its legislative assembly.
    If it could be held responsible at all for injuries arising from defects in the streets, it could only be when it has given its sanction to improvements by making appropriations for them.
    But no appropriations had been made for the improvement of K street east, at the time of the defendant’s injury. No-contract existed for its improvement with the District or the-board of public works.
    The cause of the injury was created entirely by the Baltimore and Potomac Railroad, acting under the exclusive authority of Congress.
    The railroad was, therefore, the only proper defendant.
    The District, while it had not authorized the excavation,. could-not prohibit or control it.
    
    
      The relation to the “cause of injury,” which, renders local governments ordinarily responsible, could not therefore exist on the x>art of the District. The local governments are held responsible on the ground of control over the localities of injuries, or over citizens creating them. The District had no such control over the railroad. It could issue no “ permit ” —it did not;. it could establish no rule for the work of the road — it did not.
    But if the railroad was not the only proper defendant, the suit should have been against the board of public works. It, and it only, possesses general statutory control over the streets.
    And this court has decided that it is capable, as respects this very control, of suing and being sued.
    It cannot be that both the District and the board can be liable to actions respecting the same matter or wrong.
    The liability of the one excludes the other. Board of Public Works vs. City of Washington et al., Shearman & Redfield on Negligence, Chap. VII.
    The errors in the general charge are two. First, in holding the District of Columbia liable. This is done in different forms; among others, in saying that the District inherited, as respects the highways, the duties of the city of Washing-ion ; and second, in relation to implied notice, i. e., that long-continued neglect on the part of the District would be notice.
    This is too indefinite. And the evidence did not justify it.
   Mr. Justice Olin

delivered the opinion of the court:

This case comes before us upon a bill of exceptions taken to the rulings of Chief-Justice Gartter, who presided at the trial.

The following are all the facts in the case appearing on the trial necessary to be recited to raise the question of law which I think decisive of the case.

It was made to appear that the Baltimore and Potomac Railroad Company had been incorporated by an act of the general assembly of Maryland, and that on the 5th of February, 1867, Congress authorized the extension, construction, and use of a lateral branch into and within the District of Columbia. This act, after prescribing the mode of acquiring the right of way over or through lands in the District, in section three, provides that whenever it becomes necessary for the railroad-track to pass any street or alley, the company shall make a convenient wagon-way, so as not to obstruct public travel, and providing, first, that said railroad shall enter the District at such place, and pass along such public streets and alleys to such point or terminus within said city, as shall be allowed by Congress upon presentation of map and survey of said road ; and further providing that the level of said road within the city shall conform to the present graduation of the streets, unless Congress shall authorize a different level.

Whatever powers or privileges were granted to this railroad company under this act were as wholly independent of the then municipal government of the city of Washington as though no such government existed. The same may be said of the acts of Congress of March 18, 1869, and of March 25, 1870. It will be seen in all of them that the powers and privileges granted by Congress to this railroad corporation were in no way subjected to the control or supervision of the municipal government of the city of Washington, and the power of Congress to exempt this railroad company from all interference with or control over it by the city government of Washington will scarcely be doubted,

On examination of the several acts of Congress in reference to this railroad company, I am at a loss to discover the necessity for or the propriety of the ordinance of the mayor, board of aldermen, and board of common council of the city of Washington of May 30, 1870, recited in the first bill of exceptions. They had nothing whatever to do in the matter. The same power that granted the privileges and rights to the railroad company created the board of aldermen, and it might have refused the one and destroyed the other at its sovereign will and pleasure.

To the introduction of this act of the corporation of Washington as evidence in the case, an objection was taken and the objection overruled. Upon any possible theory of this case, this evidence was, I think, inadmissible; and as we can not know judicially what influence this testimony had in determining the verdict of the jury, the verdict, for this cause alone, should be set aside.

But before the plaintiff in this case received the injury of which he complains, the old District government of Washington was abolished, together with all the offices created by it, or existing under it, and nothing was left of the old government save the ordinances passed by it, and those made subject to repeal by the incoming government. This was accomplished by the act of Congress of February 21,1871, entitled “An act to provide a government for the District of Columbia.”

By section first of that act it is provided “ that all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is hereby constituted a body-corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal, and exercise all the powers of a municipal corporation not inconsistent with the Constitution and the laws of the United States and the provisions of this act.”

This last clause is worthy of observation.

I understand it to mean this: that Congress creates a municipal government for this District, with such powers, and such powers only, as are granted in the act creating that government. Municipal governments, like all other corporations, take such powers only as are expressly granted in the act creating them, or at most, such powers as are necessary to carry into practical effect the powers expressly granted.

The only remaining provision of the act of Congress creating a “ government ” for this District which it seems to me necessary to refer to, is contained in the 37th section.

The provisions of that section are as follows:

“ Sec. 37. And be it further enacted, That there shall be in the District of Columbia a board of public works, to consist of the governor, who shall be president of the board; four persons to be appointed by the President of the United States, by and with the advice and consent of the Senate, one of whom shall be a civil engineer, and the others citizens and residents of the District, having the qualification of an elector therein; one of said board shall be a citizen and resident of Georgetown ; and one of said board shall be a citizen and resident of the county outside of the cities of Washington and Georgetown. They shall hold office for the term of four years, unless sooner removed by the President of the United States. The board of public works shall have entire control of, and malee all regulations which they shall deem necessary for heeping in repair the streets, avenues, alleys, and seioers of the city, and all other works which may be intrusted to their charge by the legislative assembly,” &c.

This is all of this section I deem it important to refer to. It will be seen, therefore, by the provisions of the three several acts of Congress in reference to the Baltimore and Potomac Railroad Company before referred to, that whatever rights, privileges, or immunities were conferred upon it, were wholly independent of the then existing municipal government of Washington.

This railroad company, in constructing its road, as by law it was authorized to do, opened a deep excavation for its-track by the side of a traveled street, and so negligently omitted to put up barriers or safeguards, or lights, that a citizen in the exercise of ordinary care and prudence, as found by the jury, fell into this excavation made by the railroad conrpany, and was seriously injured. He brings.suit— not against the company, which was conceded by counsel on both sides of the case to be liable for the damage sustained if there was any liability in the case — but brings suit against the District government. Under the instruction of the presiding justice a verdict was rendererd by the jury for the plaintiff.

The action, I think, cannot be maintained, because the organic law creating the existing government of this District confers on it no control over the avenues, streets, and alleys, in the District, nor imposes on it any duty to repair or keep them in order; and where no such power is given or duty imposed, it is the grossest of legal solecisms to affirm that an obligation can arise.

But it is argued that it is impossible to conceive of the ex istence of a municipal government that would not have power to open, improve, repair, and regulate the public streets and alleys within its corporate limits. All I have to say in reply is, if the thing really cannot be conceived of by a rational mind, it probably cannot be done; but I must add, that the act of Congress not only says that it can be done, but that it shall be done; and says so in language so plain that he who runs may read: “ The board of public worTcs shall have entire control of the streets,” &c.

After entire control of any subject or matter is given to one person or to a board, what kind of control can be implied, by way of reversion or remainder in the District, to some other person or body! What fraction of the whole control of a given subject is the entire control ?

It is said that the board of public works is a constituent part of the District government as last organized; and, therefore, for any omission of duty by any constituent part of such government, whereby damage has been occasioned to third persons, an action may be maintained by such persons against the District government. This position, 1 think, is rather specious than sound.

It by no means follows that the municipal government of this District is liable in an action at law for damages occasioned by negligence or misconduct of an officer of this District in respect to the duties imposed upon them by law.

The marshal of this District, (who is no unimportant part of its government,) if he neglect to discharge his duty, to the injury of a third party, may be sued, and the damages sustained may be recovered off him; but whoever thought his negligence ever would be cause of action against this municipal governm ent ? The case put is no extreme one. The same may be averred of every officer of the District, from the judge on the bench to the constable or police officer. Statutes in pari materia are to be construed as one statute; it is therefore of no importance whatever that the board of public works was created by the same act of Congress which created the existing municipal government of the District.

It is argued, thirdly, that it would be a great hardship if a person injured as the plaintiff was could not maintain an action for the damage he received against the District of Columbia.

I have before remarked that it was conceded on the argument that the primary liability in this case, if liability there was, was on the part of the Baltimore and Potomac Eailroad Company, and this upon the principle, sic utere tuo ut alienum non leñas, so exercise your own rights as not to unnecessarily injure others. The plaintiff, then, having a clear right to maintain an action against the Baltimore and Potomac Eailroad Company, it would seem to be no hardship that he was unable to maintain an action against some other person or corporation. .

It sometimes happens, most frequently in actions of tort, that a person injured may have two remedies, or, more properly, a remedy against different persons, upon the principle of respondeat superior; but that principle has no application to the present case. The Baltimore and Potomac Eailroad Company was not the servant or agent in any sense of the municipal government of this District; and I have before shown, I think, that the District had no authority or power conferred upon it over the streets of the city. Indeed, any interference with thestreets, &c., on the part of the officers, servants, or agents of the District against the will or consent of the board of public works would be a trespass. The members of the board are appointed on the nomination of the President, confirmed by the Senate, paid by the United States; and being thus appointed, to them is committed the control and repair of the streets. It would be as much a trespass to interfere with their prescribed duties as with those of any other agents of the United States.

It was held by this court, after protracted argument, that the board of public works, created by the organic act establishing the existing municipal government of this District, was a 'quasi corporation, and as such might maintain a suit at law or in equity when the discharge of the duties imposed upon it was wrongfully interfered with. In that decision I concurred, and see no reason why we should reverse it. . It would seem to follow, as a logical and legal sequence from that decision, that the board of public works would be liable to an action, if, by their neglect to perform a clear duty imposed by law, they occasioned special damage to some innocent person. I conclude, then, that if there was any remedy for the plaintiff beyond the liability of the railroad company, it was against the board of public works. But it is said that the board of public works have no fund out of which to satisfy any judgment which may be recovered against it. This, it seems to me, is no better reason than to say no man should be sued for an assault and battery who has no means to pay any judgment which may be recovered against him. The failure of a public officer to perform a duty imposed on him by law to the special injury of any 'person, is a good cause of action, but the damages awarded for such cause are to be paid out of the officer’s private funds, and not out of any public funds under his control or elsewhere. This board was charged by law with the entire and exclusive control of the streets. If they neglected their duty and omitted to keep them in safe repair, perhaps they may be liable to suit; but upon this subject it is quite unnecessary, and therefore I express no opinion.

If the present action can be maintained, the tax-paying population of this District must pay the amount of the judgment. What offense, what neglect of duty have they been guilty of? A government is imposed upon them, in respect to which they have little or no voice at all, and in respect to the streets of the city absolutely none. But it is proposed to hold the tax-paying population of the District responsible for the negligence of this railroad corporation, created by Congress, or the negligence of the board of public works, created in the same way, and over neither of which the people of this District have any more control than the people of any neighboring State. I can readily perceive, upon grounds of public policy, that a municipality which elects or appoints its own agents, officers, or servants, may be held responsible for their misfeasance or malfeasance, and be made to sweat out by taxation all judgments recovered against such officers, servants, or agents for failing in any respect to perform their duty; but such a rule in this case would run the doctrine of imputed sm so far into the ground that I am unwilling to follow it. The President and Senate would be made responsible upon this rule.

I have not deemed it important to refer to adjudicated cases to sustain any principle I have announced. Those principles are so elementary in their character that the citation of cases might impair, but could not strengthen them. They will be found in Dillon on Municipal Corporations, a most able and instructive book,'remarkable for its admirable arrangement and lucid examination of adjudicated cases, and in Shearman & Beclfield on Negligence. No adjudicated case can be found, I think, where it has been held that a municipal corporation has been held responsible for the non-repair of streets, where the power to repair was not given, or the duty to repair imposed, or where the streets were in the charge of independent officers, over whom a municipal body has no control, either as respects their appointment or essential duties. Other considerations might be presented, but I do not deem it necessary to add more.

A new trial must be granted.  