
    The City of Dayton v. Horace Pease.
    Municipal corporations are liable for injuries to third persons, resulting from tbe negligence of subordinate officers or agents acting under their authority and direction, in the construction of public improvements belonging to such corporations^
    In such cases, the maxim respondaei superior, properly applies, in the same manner and to the same extent, as in its application to the liabilities of private individuals.
    But where such agent or officer, although appointed by the corporation, performs duties for or between individuals, in which the corporation has no interest, no such liability arises, and the officer alone is responsible.
    The damages to be recovered in such action, must be the immediate, natural, and necessary result of the negligence or want of skill complained of.
    Error to the court of common pleas of Montgomery county, reserved in the district court for decision here. ^
    The original proceeding was an action on the case for consequential damages to the mill of Horace Pease, defendant in error. It was commenced before a justice of the peace. Judgment was rendered by him in favor of Pease, and an appeal taken to the Montgomery common pleas by the city. At the November term, 1852, the demurrer was withdrawn as to the first count of the declaration and overruled as to the second. On issue joined at the-same term, a special verdict was rendered *by the jury. On error to the district court for Montgomery county, the case was-reserved to this court for decision.
    The declaration contains two counts. The first sets forth that, the plaintiff was possessed (in October, 1851) of a certain mill in Dayton, on the Miami canal, and a certain water-power of so many cubic feet per minute; and the right to flow the same through the-canal to his mill, and from and below the same, through the said canal. That the defendant, on the 30th of October, 1851, etc., etc.,. “ wrongfully and injuriously ” erected an arched stone bridge across the canal below said mill, and in the city, and constructed, the same “ so inartificially ” that it fell into the canal and dammed up the water, and thereby obstructed and prevented the plaintiff' from the use of his mill, and from making divers profits,.etc., etc.
    The second count differs from the first, only, in alleging that the-defendant “ wrongfully and injuriously, by certain contractors for that purpose by the defendant employed,” erected the bridge in the first count mentioned.
    At the trial, the plaintiff so amended his declaration as to conform it to the proof of drawing off the water from the canal above-the mill, as set forth in specification number five (5) of the special verdict.
    The plea is the general issue — “ Not guilty.”
    The jury, being instructed that they might find a special verdict and assess the damages sustained by the plaintiff, did find—
    1. That the mill mentioned in the declaration was the mill of the plaintiff; that he'owned and used the water-power, and had the-right to flow water from said mill through the Miami canal.
    2. That the city of Dayton, by order of the common council, did contract with certain contractors to erect a stone bridge over said canal, as by law the city had a right and was bound to do, below said mill, on Warren street, under the supervision of the city engineer, and according to a plan to be furnished by him; *that. said contractors did erect such bridge, in pursuance of a plan afterward furnished by said engineer.
    3. That on the afternoon of the 30th of October, 1851, said bridge-fell into the canal.
    4. That the fall thereof was owing to defect and inartifi.ciality in the plan of the bridge, as furnished by said engineer; which plan ■was defective and inartificial through, the negligence and unskillfulness in devising the same, of the said engineer, and was such that the bridge could not stand.
    5. That, by reason of the stone and earth falling into the canal, the water was dammed and backed up on the wheels of plaintiff’s ■said mill, which stopped its working for a period of seven hours; .and that by reason of said fall of stone and earth, and for the purpose of removing the same, it became necessary to draw the water ■off the level of the canal above the mill, whereby it was stopped for a period of twenty-three hours longer.
    6. That immediately after the fall of said bridge, on the same •day, the city of Dayton proposed to remove from the canal the ■obstruction to the same occasioned thereby; but that the removal thereof was at once taken off their hands by the superintendent of repairs on that line of said canal, who forthwith took charge of the same, and proceeded to take the necessary steps to remove said 'Obstruction.
    7. That directly after the fall of the bridge — on the same day— the said superintendent of repairs directed the water in the level .above the mill to be drawn off, for the purpose of enabling him to remove the said obstruction from out the canal, and that the water was so drawn off; whereby the mill of the plaintiff was stopped for the period of twenty-three hours, as aforesaid.
    8. That said bridge was upon Warren street, a public highway ¿and street in Dayton, which was originally part of a state road, laid out and established as such road by the county commissioners, in 1806 or 1807, and which became one of the streets of the town ■of Dayton in 1812 or 1813; that there was at both these *periods, and until the construction of the said canal, a swamp or marsh directly on the line where the canal now runs; and a bridge ■of logs at the point on said road or street, where said stone bridge was erected.
    9. That the Miami canal was constructed about the year 1829, .and a wooden bridge erected over the same pursuant to law, which bridge fell down and was removed some time in the spring of 1851; and that the stone bridge was erected at the same point on the ■canal where the old bridge stood.
    And if the court should be of opinion that on these several facts thus found, the law was with the plaintiff, then, and in that case, ■the plaintiff’s damage to be assessed at the sum of sixteen dollars and fifty cents, by reason of the damming and backing up of the water upon the wheels of the plaintiff’s mill as aforesaid; and the further sum of fifty-four dollars and seventy-two cents, by reason of the water having been drawn off from the level above the mill of the plaintiff as aforesaid. Rut if the law were with the defendant, then, and in that case, the defendant to go hence without day, and recover from the plaintiff its costs, taxed at-dollars and -cents.
    And thereupon the parties, by their attorneys, agreed in open, court, that, in pronouncing judgment upon said findings of, the jury, the court should also look to, consider, and take judicial notice of the-charter of the said city of Dayton, and all acts of the legislatureamendatory thereto, or conferring power upon and regulating the duties and liabilities of the city and its officers, and of all the ordinances and minutes of the proceedings of the city council, in so far as they severally relate in any way to the matters in controversy— the same as though each and all were parts of the genéral laws of the state, or had been respectively and severally pleaded and given in evidence to the court and jury.
    * Copies of the proceedings of the city council, referred to in the-above entry, and agreed upon by counsel of loth parties.
    
    January 11, 1851.- — D. H. Morrison was then elected city engineer for the current year.
    June 5,1851. — Resolution, by Mr. Kenney, that the marshal, in-conjunction with the city engineer, have the bridge on "Warren street repaired, and that the work be let to the lowest bidder for-cash.
    June 20,1851. — Mr. Kenney, from the committee to whom was referred the matter of repairing Warren street bridge across the-canal, reported that said bridge since the last meeting has fallen-down, and offered a resolution that the city engineer be required to make an estimate of a stone bridge of rough masonry, also of a wooden bridge, and that he advertise for proposals for building the-same. Report accepted, and resolution adopted.
    August 8,1851. — Resolution, by Mr. Kenney, that the bids for building a stone bridge across the canal at Warren street be referred to a committee of two, in connection with the city engineer, and that they be authorized to contract for the building of said bridge,, with the lowest responsible bidder. Laid over.
    August 11, 1851. — Mr. Comly offered the following as an amendment to Mr. Kenney’s resolution : That the committee on the Warren street bridge report to council the gross amount of each bid for’ the wok on said bridge, before the contract for the same is awarded. Amendment adopted, and the resolution as amended passed. Committee — Messrs. Boren, Worman, and Beichler.
    August 18,1851. — The city engineer reported concerning the several amounts of bids for building Warren street stone bridge. On motion, the work, was awarded to Marcus Bosler, exclusive of embankment, for $1,155.79.
    November 17,1851. — Resolution, by Mr. Kenney, that the committee on Warren street bridge report to couneil the full particulars *in reference to the contract and full amount paid on said bridge; also, that the city engineer furnish statement of the reason why said bridge did not stand, and where the fault lies in the premises.. Committee — Boren, Beichler, and Worman.
    Horace Pease presented claim for damages sustained by him in the stoppage of his mill, as he alleges, by reason of the falling of Warren street bridge into the canal. Ordered that said bill be returned to Mr. Pease.
    December 15,1851. — Mr. Bosler submitted statement concerning the falling of the Warren street stone bridge. Laid over till next meeting.
    February 6,1852. — Committee on Warren street bridge reported progress, and asked further time. Granted.
    March 3, 1852. — Communication from Wm. Trebein, notifying council to remove stone and rubbish accumulated on the towing-path on the canal, at the Warren street crossing, was then read. Mr. Love moved that the matter be referred to the bridge committee, to report at next meeting. Carried.
    May 18, 1852. — Resolution, by Mr. Kenney, that the trustees of the Fourth ward be authorized to have the stone abutments of Warren street bridge built preparatory to the erection of a wooden rafter bridge; provided, the building of said abutments does not cost to exceed $100; and provided further, that the canal commissioners appropriate sufficient to build said bridge. Adopted.
    
      Tfte city charter and ordinances. — Counsel bring also into court and file with brief, a printed volume, containing the charter and ordinances of the city of Dayton; and refer therein especially:
    1. To the act of the legislature creating the office of “ city engineer,” requiring the city council to appoint, or provide for his election by the people, and fixing the term of office. Charter, etc., pp. 9,10.
    *2. To the ordinance prescribing his duties, requiring oath of office, fixing a salary, etc. Charter, etc., pp. 48,49.
    
      C. L. Vallandigham made the following points in argument for plaintiff in error:
    1. (1.) A mere private corporation, exercising mere private and strictly corporate powers, is liable for injuries occasioned by or resulting from the exercises of such powers, in like manner as an individual; but
    (2.) A mere private corporation, exercising public powers — powers belonging to and usually exercised by government (e. g. the case of turnpikes, canal, railroad companies, etc.) — is not liable, either in England, or in most of the states of this Union, or under the federal government, for injuries resulting from or occasioned by the exercise of such powers, except it act itself illegally (exceeding its jurisdiction) or wantonly, maliciously, or negligently in their exercise. 2 Broom’s Maxims, 373-389 ; Story on Agency, sec. 319, et seq.; 1 Am. Law Mag. 66; Plate Glass Company v. Meredith, 4 Term, 794; Boulton v. Crowther, 2 B. & C. 703 (9 Eng. C. L. 227) ; Sutton v. Clarke, 6 Taunt. 29 (1 Eng. C. L. 298) ; Hall v. Smith et al., 2 Bing. 156 (9 Eng. C. L. 357) ; Harris et ux. v. Baker, 4 M. S. 27 ; Duncan v. Findlater, 6 Clark & Fin. 903 ; The Queen v. Eastern Counties Railway, 1 Gale & Dav. 589 ; Callender v. Marsh, 1 Pick. 418; Steel v. The West Lock Nav. Co., 2 Johns. 286 ; Parker v. The Cuttler Milldam Co., 7 Shep. 353; Lansing v. Smith, 8 Cow. 146. See also the earlier Ohio cases.
    (3.) And so even in the case of a private individual, exercising a like power, by special grant. Calking v. Baldwin, 4 Wend. 667.
    Note. — Some of the other cases above cited, are eases where individuals exercised the powers, but assuredly there can be no sufficient reason for between acts dividual officer or body of ^individual officers, and the same acts done for same purposes, by a corporation — especially a muñid~ 
      
      pal corporation. And see 1 H. & W. Am. Lead. Cases, 645 ; 3 Hill, 531; Story on Agency, sec. 321. ’
    II. A public and political or quasi, corporation proper — “ a body politic and corporate,” in tbe language of the Ohio statutes (Swan’s Stat. 205, sec. 7; 827, sec. 7; 949, sec. 1), e. g. a county or township — is not liable for injuries occasioned by or resulting from the lawful exercise of its lawful powers.
    Note. — “ A city is in some respects a county.” Stetson v. Faxon, 19 Pick. 152.
    III. (1.) Though a municipal corporation, exorcising mere private :and strictly corporate powers, and for its own pleasure, benefit, and -emolument, is liable for injuries occasioned by or resulting from thg ■exercise of such powers, in cases where the acts producing the injuries are directly done or commanded by itself, in like manner as an individual.
    (2.) Yet it is not in like case liable where the powers exercised are public and political and quasi corporate, and not for its own ex■clusive benefit and emolument, unless it exercise such powers illegally or maliciously, or occasion injury in the exercise thereof by its own direct negligence.
    As above, especially Story on Agency, sec. 319, et seq.; also, 1 Hare & Wal. Amer. Lead. Cas. 645; Fowler v. The Com. Council of Alexandria, 3 Pet. 398; Humes v. The Mayor, etc., 1 Humph. 403; Bailey v. New York, 3 Hill, 531; New York v. Bailey, 2 Denio, 434.
    Note. — As to the Ohio cases bearing on this point, the counsel fop plaintiff in error maintains that, though the latter do not profess to ■overrule the earlier, and indeed deny any such purpose, there is nevertheless a conflict, direct and irreconcilable, between them; and that these later cases are unsupported by any authorities, English or American, and are manifestly against principle. And, further, that they do not at all decide the question involved in the case at bar. (See fifth proposition.)
    IY. A municipal corporation is not liable, any more than up individual would be, for injuries maliciously or wantonly committed *by its servants, the maxim “respondeat superior" not here-applying.
    V. (1.) Though municipal corporations are liable — like any other public officer — in all cases, for injuries resulting from their own direct negligence and carelessness, in even the legal exercise of as well public as mere private and strictly corporate powers:
    (2.) Yet, when exercising lawfully, even mere private and strictly corporate powers, they are not liable, even in Ohio, certainly not elsewhere, for injuries resulting purely from the negligence or unskillfulness of their officers in executing the acts ordered to be done; unless, indeed, the person executing the act, stand in the relation of a mere private servant or deputy.
    
    (3.) Nor, a multo fortiori, are they in a like ease liable, where the powers exercised are of a public and political or quasi corporate kind, and not employed for the mere private pleasure, benefit, or emolument of the corporation, where they act as public officers,, and not as mere corporators. 1 Hare & Wal. Amer. Lead. Cas. 645; Paley on Agency, 300; Story on Agency, secs. 319-457; Hall v. Smith et al., 9 Eng. C. L. 357; Harris and wife v. Baker, 4 M. S. 27; Martin v. Mayor, etc., of Brooklyn, 1 Hill, 545 ; Bailey v. New York, 3 Hill, 530; The Mayor, etc., of New York v. Furze, 3 Hill, 612; Same v. Bailey, 2 Denio, 434. And see Connell v. Voorhees, 13 Ohio, 523, with the comments in 1 Hare & Wal. 645.
    Note. — The counsel for the plaintiff in error maintains that this proposition puts the case at bar — if the facts bring it within the proposition — beyond the cases decided in 10, 15, and 18 Ohio.
    Applying these propositions to the case at bar, the- counsel for the plaintiff in error further argues:
    I. That the building of bridges is, from its nature, the exercise of a public and political, and not a mere and strictly corporate power.
    *Note. — It was so regarded by both ancient and modern governments. part necessitas, attaching old to every man’s estate, to wit: Expeditio contra hostem; arcium constructio; pontium reparatio. So also at Rome, no man was exempt, from the- duty — nullum genus hominum, nulliusque dignitatis ac venerationis mentis. And in Ohio it devolves, except in special cases, upon counties and townships.
    
      II. That the city of Dayton, in building bridges, acts, under our-statutes, as a public officer, being substituted for the county commissioners and township trustees, and not in the exercise of a mere and' usual corporate franchise. Swan’s Stat. of ’41, p. 165, sec. 8; 177, sec. 15; 206, sec. 10; 808, secs. 70, 71; 810, sec. 74; 811, sec. 79; 813, secs. 87, 90: and compare city charter, p. 27, sec. 2.
    Note. — This was an ancient bridge, on an ancient state road. It. was not a toll-bridge, nor built for mere pleasure, ornament, emolument, or benefit of the city, but being a canal bridge, the city was■■ bound to build it. Swan’s Stat. 165, see. 8, and 177, sec. 15; and special verdict, specification number 2. Nor, further, was the city using and improving its own property, nor property of which it had'the control. It belonged to the state.
    III. That the city having thus the right, and being bound to-build the bridge, did not, in bulding it, act illegally or exceed its-jurisdiction. Nor yet did it act maliciously.
    Note. — The injury complained of was not caused by the doing of' the act ordered by the city, to wit: the building of the bridge; nor-did it even result consequentially (strictly speaking) from the building, but the/aZZ of the bridge. Nor yet was it occasioned by, or-result from negligence or unskillfulness in, the city itself (as if, e. g., the city council had itself devised the plan), but from the fall of the-bridge, which fall was occasioned by the negligence and unskillfulness, or mistake rather, of the city engineer; neither the fall nor' negligence being ordered, countenanced or contemplated by the city.
    And this consideration, especially, distinguishes this from every and all the cases where cities have been held liable.
    IY. The city engineer is a public ministerial officer of the municipality, and not a mere private servant, employe, or deputy thereof;, but bearing a relation to the city similar to that which the county surveyor sustains to the county. Ante, p. 4; and see Knight v. Fox & Henderson, 1 L. & Eq. 477.
    *Note 1. — The case of a ship-master compellable to take a pilot, for whose negligence he is not liable, is not without analogy. Story on Agency, sec. 456a.
    Note 2. — The fact that the city appoints the engineer, does not. affect the question. Paley on Agency, 300, note p; Canterbury v. The Attorney-General, 1 Phil. 306; Lane v. Cotton, 1 Salk. 17, and 1 Hill 545, ut supra. See also the case of a stage-driver appointed ¡by the mail-contractor, Connell v. Voorhees, 13 Ohio, 523.
    Y. The argument by analogy and ab inconvenienti, applies here with peculiar force, since the city must be liable for all the mistakes .and negligences of all its other officers also — its assessors, weighers, measurei’s, marshals, market-masters, health officers, fire-wardens, •city jailer, supervisors, night watch, etc., etc., throughout the list.
    YI. That as to the loss occasioned to the defendant in error, by ■the drawing off the water in the level above his mill (which was the .act of the superintendent of repairs on the canal), the city is clearly not liable, even aside from the principles hereinbefore noted; be•cause, although the drawing off the water was brought about by the building and subsequent fall of the bridge, these were only the remote cause of the loss to the defendant in error — quite too remote to be the subject of an action; the proximate cause was the drawing •off the water, by one in nowise the agent or employe of the city.
    
      Summary. — I. That in building the bridge in question, th® city of Dayton acted as a public officer of the state, lawfully discharging her public duties in like manner as a county commissioner or town•.ship trustee in a like case.
    II. That a public officer, acting in the lawful discharge of his •public duties, is not responsible for the negligence or unskillfulness -of those whom he is obliged to employ as public, though subordinate, •officers under him.
    III. That the city engineer of Dayton is such public, though ^subordinate, officer, acting in a public capacity, and not a mere private service.
    IY. And that, therefore, the city is not liable for his negligence <sr want of skill.
    
      Haynes & Howard, for defendant in error:
    I. Municipal corporations are liable, like individuals, for injuries •done by them, though the act be not beyond their lawful powers. 'They are created to enable a body of people to act, as an individual •could, for the convenience and profit of all; sue and be sued, and, generally, to carry into effect any object of interest to those who belong to it. If the property of any one must be taken for the benefit of all, a fair compensation must be made to him in money It is no less a duty to make good a loss resulting from their acts— 0 consequential damage. This case is stronger than the case of Rhodes v. Cleveland, 10 Ohio, 159.
    Under this head, counsel cite also Smith v. Cincinnati, 4 Ohio, 514; McComb v. Akron, 15 Ib. 474; Akron v. McComb, 18 Ib. 229.
    II. There is no conflict between these and the earlier Ohio cases. In Scovill v. Giddings, and Hickox v. Cleveland, the points could' not arise. In the first case, the suit was against agents of the corporation for doing what the corporation might legally do, and had. ordered them to do: the law authorized the acts, and the corporation, not the agents, was liable for the injury. In Hickox v. Cleveland, there was a special provision in the law‘providing for the-assessment of damages. "When that is the ease, the party must resort to the remedy which is given him.
    III. Counsel also rely on the following American cases: Thayer v. Boston, 14 Pick. 115; Stetson v. Faxon, Ib. 141; Baron et al. v. Baltimore, 2 Amer. Jur. 203; — cited and approved in 18 Ohio, 233. Also, Bailey v. New York, 3 Hill, 531; New York v. Bailey, 2 Denio, 434. The English cases cited by ^plaintiff in error, can only be sustained on the ground, that the defendants were independent officers of the British government, discharging their-duties without fault; the government being the superior, the rule, respondeat superior, did not apply.
    IY. Under the ordinance for the appointment of a city engineer,, the counsel did not comply with their whole duty in the matter. The ordinance is as follows :
    “ Sec. 1. The city council of Dayton ordain, that the said city council shall annually appoint some suitable and competent person, to the office of city engineer and surveyor, who shall hold his said office for one year, and until his successor shall be appointed and qualified; and before entering upon the duties of his office, said city engineer and surveyor shall take an oath or affirmation to-faithfully and impartially discharge the duties of his said office.
    
      “ Sec. 2. It shall be the duty of said city engineer and surveyor, when called upon by the city council, or any committee thereof, to-make all surveys of the streets, lanes, alleys, sidewalks, and public roads in said city; and to execute plats, plans, draughts, and statements of the same, and to calculate and ascertain the proper and necessary grade and level of all of said streets, sidewalks, lanes,, alleys, and public roads, and execute profiles, delineations, and. ■■draughts of the same. All of -which surveys, grades, levels, profiles, delineations, and draughts, said city engineer and surveyor shall deliver over to the city clerk and recorder as soon as prepared, who shall carefully file away and -preserve the same in his office. And said city engineer and surveyor shall, from time to time, dis■chax-ge such other official duties as the city council, by ordinance or resolution, shall direct; for all which he shall receive such compensation as the city council shall determine.”
    Under this ordinance, the engineer is simply to dx'aw plans, and .hand them to the city clerk, to be filed away, and discharge %uch other duties as the council, by ordinance or resolution, may direct. He is not to build the bridge on his own plan; nor, if he draw a plan, is the council bound to adopt it. No act of his, •of this class, has any validity till adopted by the council. By determining to go on with the bridge, they make the act their own. The ordinance says he is to “ calculate grades,” but that does not .shield the city from responsibility for injuries resulting from cuttixxg down or filling up streets, in conformity to such grades. The •engineer is not an independent officer.
    V. Even if he were an independent officer, the city would be liable. New York v. Baily, 3 Hill, before cited, is in point. The ■city of Dayton was not bound to build the kind of bridge which they did build. It was not one of the usual kind of canal bridges. It was an arched stone bridge — intended to be a work of great beauty and strength — to improve in value the individual and corporate property of the city, as well as to benefit the public. The ■council were in duty bound to have a plan drawn, filed away, examined, and adopted with care and prudence. If they did not do so, they are certainly liable; and if they did so, the engineer is not .an independent officer, and the negligence was the direct negligence ■of the city.
    VI. The city of Dayton is not to be shielded froxn liability as a “ public officer.” It is in no respect analogous to a public officer. It is not like the county commissioner's. The latter are the agents of the county, as the city council is of the city; and the county and the city must respond in damages for acts which would make individuals .liable. By the act of incorporation, the city is invested with certain rights. The people in that capacity may, and often .do, take upon themselves and agree to discharge some of the duties which to the that them in their own peculiar way. They discharge those duties as well for their own interest, emolument, and pleasure, as for the public good; and it is not supposed that, because they do so, they have the shield of the sovereignty. They are *not, on that account, less liable for the consequences of their acts.
   Ranney, J.

It is perfectly clear that the principle settled in Rhodes v. Cleveland, 10 Ohio, 159; McComb v. Akron, 15 Ohio, 474, and Akron v. McComb, 18 Ohio, 229, can have no application to the present controversy. In each of those cases, the liability of a municipal corporation, acting through subordinate agents, within the .scope of its authority, and without malice or negligence, was enforced, where the acts of such agents resulted in injury to the property of private invividuals. The propriety of investing such corporations with a power to imjjrove their streets, resulting often in indirect injury to private property, is conceded; but the cases rest upon the -clear principle of right and justice, which requires compensation to .go hand in hand with public benefit. And, when in the lawful exercise of these powors, private property must be injured for the common benefit of all, all should be held liable to make reparation; and, in the view of the judges-who concurred in these decisions, the principle was not without support from that section of the constitution of the state, which secures the inviolability of private property. I am aware that these cases have not commanded the universal assent of the profession, and,,as one member of this court, I am quite willing to reinvestigate the doctrines upon which they are founded, when a case shall arise in which it can properly be done; but, notwithstanding their very emphatic condemnation by a highly respectable judge in a sister state (Bronson, C. J., in Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, 4 Com. 204), I still think that the •obligation to make compensation in such eases can not be seriously •doubted; and the only question seems to be, whether it should not be uniformly provided by the legislature, as a matter of justice, when such improvements are authorized rather than afforded by .action in the courts of law.

*In the present case, it is not doubted that the corporation, under its authority to improve the streets of the city, had full power to build the bridge in question. The special verdict finds that the bridge was built by contract with the city council, upon Si plan furnished by the city engineer; and that its fall, which occasioned the injury to the plaintiff, was owing to a defect in the plan, arising from the carelessness■ and unskillfulness of the-engineer.

The engineer was an officer of the city, elected by the people, and, among other things, charged with the duty of furnishing plans and specifications of this character. He acted in subordihation to, and under the direction of, the city council, although the charter and ordinances of the corporation defined the duties he-was required to perform. This action is grounded, therefore, upon the negligence and unskillfulness of the agent and officer of the corporation, resulting in injury to the plaintiff; and not, as in the-cases referred to, upon any claim of liability for injuries arising-from his lawful acts, while executing the orders of the council, and performed without malice or negligence. And the true question is, docs the corporation that elects him, directs what works he shall undertake, and for whose benefit he acts, become responsible-for the fidelity of his conduct, and liable to individuals for iujuries arising from his negligence and want of skill, while executing the lawful command of his employers ? "We have no doubt that it does; and we know not by what court, or in what case, for many years past, it has ever been questioned.

The liability of a private person, under precisely such circumstances, rests upon one of the oldest and best settled doctrines of the common law. We have again and again affirmed, that the liabilities of corporations, private and municipal, are no less extensive ; and that the maxim, respondeat superior, properly applies to-them, in the same manner, and to the same extent, as in its application to the liabilities of private individuals. Kerwhacker v. Cincinnati, Columbus and Cleveland Railroad Co., 3 Ohio St. 172; Keary v. The Same, Ib. 201. *However lawful a business, inay be, and whether pursued by an individual or corporation, the law exacts of those who uudretake it, a careful regard for the rights and interests of others. It must not only be lawful in itself, but also lawfully pursued, to shield from responsibility. It can not be accomplished safely to others, without the exercise of a proper degree of care and skill; which simply means, such care and skill as careful and prudent men, competent to the undertaking, exercise in their own affairs, when the loss, if any happens, is to be borne by themselves. The reasons upon which this doctrine rest, are not in the least diminished, when applied to injuries inflicted by associations of men, endowed with corporate capacities, either for individual emolument or social convenience. They are still but individuals, pursuing their own interests, or common advantage; and it would be altogether inadmissible to permit them to use their acts of incorporation, granted at their own instance, and designed to afford them extraordinary facilities in the accomplishment of these purposes, to deprive others of acknowledged rights. Whether men act individually or collectively, or whether they pixrsue mere private gain, or social convenience, or governmental security, they are equally bound by the great law of social duty, to-so conduct themselves as not to injure others by their malice or negligence; and when they do, the highest considerations of right and justice require them to be held responsible, whoever may be injured, or by whomsoever it may be inflicted. Even the state is .not absolved from the moral obligation of making reparation in such cases; and it is only because her policy requires an appeal toiler justice, rather than amenability in her’ courts, that a remedy is denied.

To a certain extent these doctrines are not controverted by the plaintiff’s counsel, and in a limited sense he concedes the liability of municipal corporations for the negligent or unskillful conduct, of their agents and servants; but he insists that the building of bridges is, from its nature, the exercise of a power, public and Apolitical, devolved upon the city as a public officer of the state, and not a mere corporate power, and that the city engineer is a public ministerial officer of the municipality, and not a mere private servant or employe thereof, for whose conduct it can be made responsible.

We are wholly unable to see how the building of a bridge, when necessary as a part of the street of a city, is to be distinguished in principle from the performance of any part of the work that may be needed to accomplish the same purpose upon the land; or how the mode of appointing an officer, or the rank he may hold, or the particular work he may be intrusted to accomplish, can be of any importance in determining the liability of the corporation. The true inquiry in every case must be, does he act for the corporation, and under the command of its regularly constituted organs, and while acting in such capacity, has he injured the party complaining,, by his negligence or unskilifulness? If this question is answered in the affirmative, the relation of principal and agent exists, and the liability of the former to respond for the defaults of the latter is established. How far this obligation extends, and in what cases it properly arises, is made very manifest in several late cases. To say nothing of the early reported cases, in this state, and the large number determined upon the circuit, it may be sufficient to refer to a scries of decisions in the State of New York, in which the subject has been fully and ably examined.

The case of Baily v. The Mayor, etc., of the City of New York, 3 Hill, 531, was brought to recover for an injury sustained by the plaintiff from the breaking away of a dam on the Croton river, erected for the purpose of supplying the city with water. The work was done by contractors, under the superintendence and control of water commissioners, appointed by the governor of the state, with the advice and consent of the senate; and it appeared that the injury arose from their want of skill and care in constructing the dam. On the part of the city, it was ^contended that the construction of the work was a power conferred upon the corporation for an exclusively public purpose, in the performance of which they were obliged to employ the commissioners appointed by the state, without the ability to discharge them, and substitute others in their places, and therefore that they could not be deemed the agents of the corporation. But the court were of a different opinion, and gave judgment for the plaintiff. It was admitted that a public officer, although liable for his own negligence or malfeasance in the discharge of his duties, was not so liable for the misconduct of those he was obliged to employ, the rule of respondeat superior not applying in such cases. But it was held, that the power conferred upon the corporation had for its principal object the private advantage of the inhabitants of the city, although incidentally benefiting the public at large; and inasmuch as the corporation might have’ accepted or rejected the amendment to its charter, it must be held to have accepted it upon the condition that the agents should be appointed by the state, and from that time forth they became the agents of the corporation, and fixed the liability of the corporation for their negligent and unskillful acts while in the discharge of their duty. The case was taken to the court for the correction of errors, where the judgment of the Supreme Court was affirmed. 2 Denio, 433.

In the case of the Rochester White Lead Co. v. The City of Rochester, 3 Com. 463, the property of the plaintiffs had been injured in consequence of the unskillful construction of a culvert, built under tbe superintendence of tbe city surveyor. Tbe plaintiffs were allowed to recover, and in answer to the objection that tbe work was of a public character, in tbe performance of wbicb tbe corporation could not be held responsible, in a private action, for tbe misconduct of its officers, tbe court proceed to draw tbe distinction between tbe acts of a corporation, judicial in tbeir nature, and such as are merely ministerial, bolding an ordinance of tbe corporation, directing the construction of a work *within tbe scope of its powers, to be judicial, for which it can not be made responsible; but that the prosecution of a work thus authorized was merely ministerial, and that the corporation was bound to see it done in a safe and skillful manner.

The same distinction was taken in the case of Lloyd v. The Mayor, etc., of New York, 1 Seld. 369; in which the plaintiff recovered for the value of a horse, whose death was occasioned by the negligence of an officer of the city, in leaving open a public •sewer, during the night, while undergoing repairs. The court say: “ Tbe act wbicb caused tbe injury in the present case, was performed under the power and duty to clear the sewers of the city. Legislation, or, in other words, the establishing of rules and regulations in respect to cleaning tbe sewers, or keeping them in a state of cleanliness, is one thing, and tbe act of cleaning them is another. The power and duty to perform tbe latter is clearly ministerial, and falls under tbe class of private powers. The principle of respondeat superior consequently applies, and the judgment must be affirmed.”

These cases sufficiently indicate tbe true line that divides the exercise of public, or merely j udicial or legislative powers, conferred upon a corporation, from those ministerial or executive, and municipal in tbeir nature and character.

In the exercise of tbe first class, the corporation can not be made responsible for the misconduct of those intrusted with tbeir execution. It embraces all that description of duties, involving judgment and discretion in their exercise, and resulting in prescribing the rules by wbicb the conduct of individuals is to be regulated, or works, either public or municipal, are to be accomplished. And the immunity from responsibility to individuals is grounded upon tbe same public policy, that protects tbe judge or legislator in the exercise of his duties, and is designed to remove every obstruction to the free exercise of his judgment and discretion. It also includes, so far as the liability of tbe corporation is concerned, tbe accomplishment of purposes merely public, ^devolved upon the-corporation as a public officer or agent of the state, with no power to decline their performance. In such cases, the immunity of the state is transferred to its officer or agent, and he only is liable for his own direct misconduct. The power of prescribing rules and regulations is sometimes called judicial and sometimes legislative. It would perhaps be more accurate to say that it partakes of the nature of those powers, and therefore is attended with the same protection to those who exercise it; since it is perfectly clear that the legislature is incompetent to devolve any portion of its legislative power upon a corporation, or take from the judicial tribunals any part of the judicial power of the state, where the constitution has lodged it. C. W. & Z. R. R. Co. v. Clinton County, 1 Ohio St. 77. In such cases, the corporation exercises a wholly subordinate function, and father gives detailed application to legislation, than originates new rules; while its by-laws are to be deemed in the nature of compacts between the corporators, rather than acts of legislation.

But when a municipal corporation undertakes to execute its own prescribed regulations, by constructing improvements for the especial interest or advantage of its own inhabitants, the authorities are all agreed that it is to bo treated merely as a legal individual, and as such owing all the duties to private persons, and subject to all the liabilities that pertain to private corporations or individual citizens. To this class most clearly belongs the construction, repair, and maintenance of its streets. Nor does this conclusion give the least countenance to the supposition, that the corporation is liable for the misconduct of the officers it selects, when performing duties for or between private individuals. In such cases, the whole duty of the corporation is performed when the selection is made, and having no interest in, or control over, the performance of such services, no liability attaches.

No valid objection can be taken to the rule of damages adopted in this case. It is very true that the damages to be recovered against the corporation, must be the immediate, natural, an 1 *necessary result of the negligence or want of skill complained of. But the drawing off the water for the purpose of removing the materials, of which the bridge was composed, out of the canal, was as clearly the necessary result of its fall, as its obstruction of the water while in.

Finding no error in the ruling of the court below, the judgment must be affirmed.  