
    City of Detroit vs. Blackeby.
    Tel the absence of legislation} municipalities are not liable to private suit for non-repairs of public highways.
    Error to Wayne Circuit.
   Opinion by

Campbell, C. J.

The principal question in this case is whether the city of Detroit is liable to a private action of an injured party for neglect to keep a cross-walk in repair. The other questions involve an inquiry into the circumstances which would go to modify any such liability in the present case.

The streets of Detroit are public highways, designed, like all other roads, for the benefit of all people desiring to travel upon them.' The duty or power of keeping them in proper condition is a public, and not a private duty, and it is an office for the performance of which there is no compensation given to the city. Whatever liability exists to perform this service to the public, an<J to respond for any failure to perform it, must arise, if at all, from the implication that is claimed to exist in the nature of such a municipality.

There is a vague impression that municipalities are bound in all cases to answer in damages for all private injuries from defects in the public ways. But the law in this State and in most parts of the country, rejects this as a general proposition and confines the recovery to causes of grievances arising under peculiar circumstances. If there is any ground for recovery here, it is because Detroit is incorporated, and it depends therefore . on the consideration whether there is anything in the nature of incorporated municipalities like this which should subject them to liabilities not enforced against towns or counties. The cases which recognize the distinction apply it to villages and cities alike.

It has been held that corporations may be liable to suit for positive mischief produced by their active misconduct and not mere errors of judgment.

It was substantially upon this principle that the case of Detroit vs. Corey was rested by the Judges, who concurred in the conclusion. Thayer vs. The City of Boston, 19 Pick., 511, was a case of this kind, involving a direct encroachment on private property. The Rochester White Lead Co. vs. City of Rochester, 3 N. Y., 465, where a natural water-course was narrowed and obstructed by a culvert entirely unfit for its purpose, and not planned by a competent' engineer, is put upon this ground. The cases of Hickox vs. Plattsburg, 16 N. Y., 161, Lee vs. Village of Sandy Hill, 40 N. Y., 442, involved a direct trespass.

In several cases cited on the argument, the mischiefs complained of were altogether private. The distinction between these and public nuisances or neglects has not always been observed, and has led to some of the confusion which is found in the authorities. In all the cases involving injuries from obstructions to drainage, the grievance was a private nuisance. In case of Mayor vs. Furge, 3 Hill R., 612, which has been gener. ally treated as a leading case, the damage was caused by water backing up from sewers not kept cleaned out as they should have been.

Another class injuries involves a public grievance specially injuring an individual, arising from some neglect or misconduct in the management of some of those works which are held in New York to concern the municipality in its private interests, and to be in the law the same as private enterprises. It is held, that in constructing- sewers and similar works, which can only be built by city direction, if the streets are broken up and injuries happen because no adequate precautions are taken, the liability shall be enforced as springing from that carelessness, and not on the ground of non-repairs of highways. Lloyd vs. Mayor, 5 N. Y, 369, and Storrs vs. Utica, 17 N. Y., 104, were cases of this kind. In these cases, as in the case of Detroit vs. Corey, the streets were held to have been broken up by the direct agency of the city' authorities, and the negligence which caused the injury was held to be negligence in doing a work requiring special care, or, in other words, the wrong complained of was a misfeasance, and not a mere omission.

The cases in which cities and villages have been held'subect to suits for neglect of public duty, in not keeping highways m repair, where none of the other elements have been taken into the account, are not numerous, and all which quote any authority profess to rest especially upon the New York cases, except where the remedy is statutory.

The case of West vs. Brockport, 16 N. Y, p. 161, is recognized as the one in which the whole law has been finall ysettled, and it is upon the grounds there laid down that the liabil ity is now fixed in New York.

The principle there stated is : “ That whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound, by covenant or agreement, either expressed or implied, to do certain things, such individual or corporation is liable, in ease of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to inure to the benefit of every individual interested in its performance.”

In; order to get at the true ground of liability, the opinion goes on to determine: 1st. Whether townships and other public bodies, not incorporated cities or villages, are liable, and shows conclusively that they are not, and the Court arrives at this conclusion, not on the basis of an absence of duty or an absence of means, but because their duties are duties to the public, and not to individuals.

It is admitted everywhere, except in a single case in ¡Maryland, that there is no common law liability against ordinary municipal corporations, such as towns or counties, and that they cannot be sued except by statute. It has also been uniformly held in New York as well as elsewhere that public officers whose offices are created by act of the legislature are in no sense municipal agents, and that their neglect is not to be regarded as the neglect of the municipality, and their misconduct is not chargeable against it unless it is authorized or ratified expressly by implication. This doctrine has been applied to cities as well as to all other corporations.

In the case of Eastman vs. Meredith, 36 N. H. 284, the distinction between the English and American municipal corporations is clearly defined. The former often holds special property and franchises of a profitable nature, which they have received upon conditions, and which they hold by the same indefeasible right with individuals. But American municipalities hold their functions merely as governing agencies. They may own private property and transact business not strictly municipal, if allowed by law to do so, just as private parties may, and with the same liability. But their public functions are all held at sufferance, and their duties may be multiplied and enforced at the pleasure of the Legislature. They have no choice in the matter? They have no privileges which cannot be taken away, and they derive no profit from their care of the public ways and the execution of their public functions. They differ from’ towns only in the extent of their powers and duties bestowed for public purposes, and their improvements are made by taxation, just as they are made on a similar scale in towns and counties.

In this State no municipality can exercise any powers except by State permission, and every municipal charter is liable to be amended at pleasure.. The charter of Detroit has undergone most radical changes. It is impossible to sustain the proposition that those charters rest on contract, and it is impossible, as Judge Selden demonstrates, to find any legal warrant for any other ground for distinguishing the liability of one municipal body from that of another. There is no basis on authority for any such distinction concerning the consideration on which their powers are granted, and it rests upon simple assertion.

The authorities which make corporations liable on the ground of conditions attached to their franchises, go very far towards compelling them to respond as absolutely bound to prevent mischief and the general reasoning on which most of the opinions rest, and the criticisms made upon former decisions —which, it is asserted,' went altogether too far in creating liability — all are designed to show, and do show, very forcibly that, simply as municipal corporations apart from any contract theory, no public bodies can be made responsible for official neglect involving no active misfeasance.

We think that it will require legislative action to create any liability to private suit for non-repairs of public ways. Whether such responsibility should be created, and to what extent and under what circumstances it should be enforced are legislative questions of importance and some nicety. They cannot be solved by courts.

Judgment should be reversed with costs.

This opinion was concurred in by Justices Christiancy and Graves. Justice Cooley dissented.  