JUSTICES GRAY, BREWER, SHIRAS and PECKHAM, dissenting.

acceptance of the power, and an agreement so to do. It is a duty with which the city is charged for its own corporate benefit, to be performed by its own agents, as its own corporate act." 62 N. Y. 170. But it was adjudged that the city was not liable for a personal injury caused by the negligence of the driver of an ambulance employed by the commissioners of public charities and correction, because the powers and duties of those commissioners were such as were to be exercised and performed, in every local political division of the State, not for the peculiar benefit of that division, but for the whole public, in the discharge of its duty to care for paupers, lunatics and prisoners. 62 N. Y. 168.

In Ham v. New York, (1877) 70 N. Y. 459, the decision in Maxmilian's case was approved, and was followed in holding that the city was not liable to one whose property was injured in consequence of the negligent construction of a schoolhouse by the department of public instruction of the city.

More directly in point is Smith v. Rochester, (1879) 76 N. Y. 506, in which it was held that no action against the city could be maintained by a person injured by the negligent driving of a hose cart along the street, pursuant to a vote of the city council directing the fire department to assemble in front of the city hall at midnight, as part of a celebration of the centennial anniversary of the National Independence. The judgment was put, not only upon the ground that the city had no authority to employ the horses and wagons of the fire department for a midnight parade of the fire department to celebrate the centennial anniversary of the Nation, but upon the additional and distinct ground that, assuming that the city had such authority under the statutes of New York, "the difficulty in maintaining the plaintiff's action is the well settled rule, that a municipal corporation is not liable for the negligence of firemen while engaged in the line of their duty." 76 N. Y. 513.

In Terhune v. New York, (1882) 88 N. Y. 247, it was held that an officer of the fire department could not maintain an action against the city for his wrongfnl dismissal from office by the fire commissioners, because, as was said by Judge Earl, citing the cases of Maxmilian, of Ham and of Smith, above

JUSTICES GRAY, BREWER, SHIBAS and PECKHAM, dissenting.

referred to, "the fire commissioners were public officers, and not agents of the city." 88 N. Y. 251. See also Springfield Ins. Co. v. Keeseville, (1895), 148 N. Y. 46.

Quite in line with these decisions is Farley v. New York, (1897) 152 N. Y. 222, 227, which was an action by the driver of a hose carriage against the city to recover damages for injuries caused by driving against an obstruction in the highway. The New York statute of 1882, c. 410, (consolidating the laws affecting public interests in the city of New York,) provides in § 444 that "the officers and men of the fire department, with their apparatus of all kinds, when on duty, shall have the right of way at any fire, and in any highway, street or avenue, over any and all vehicles of any kind, except those carrying United States mails;" and in § 1932 that no person shall drive or ride any horse through any street in the city faster than five miles an hour. The Court of Appeals, speaking by Chief Justice Andrews, said: "The safety of property and the protection of life may and often do depend upon celerity of movement, and require that the greatest practicable speed should be permitted to the vehicles of the fire department in going to fires. Section 1932 was intended to regulate the speed of horses travelling on the streets and using them for the ordinary purposes of travel, and from the nature of the exigency cannot apply to the speed of vehicles of the fire department on their way to fires." The further decision that negligence on the part of the driver would defeat his action against the city has no tendency to show that such negligence could render the city liable to third persons.

In the very recent case of Missano v. New York, 160 N. Y. 123, in which it was held that keeping the streets clean stood upon the same ground as keeping them in repair, and that the city was therefore liable for a personal injury caused by the negligence of the driver of an ash cart of the street-cleaning department, the court again affirmed the established distinction between such cases and those in which the corporation exercised a public and governmental power for the benefit of the whole public and as the delegate and representative of the State; and quoted with approval the statement of Judge Wallace in a simi

JUSTICES GRAY, BREWER, SHIRAS and PECKHAM, dissenting.

lar case in the Circuit Court of the United States, where, speaking of the commissioner of the street-cleaning, he said, “His duties, unlike those of the officers of the departments of health, charities, fire and police, although performed incidentally in the interest of the public health, are more immediately performed in the interest of the corporation itself which is charged with the obligation of maintaining its streets in fit and suitable condition for the use of those who resort to. them." Barney Co. v. New York, (1889) 40 Fed. Rep. 50. See also Hughes v. Auburn, (1899) 161 N. Y. 96, 103, 104; and the decisions of the District Court of the United States for the Southern District of New York in Haight v. New York, (1885) 24 Fed. Rep. 93, and in Edgerton v. New York, (1886) 27 Fed. Rep. 230.

The highest courts of the States of Pennsylvania, Ohio, Illinois, Kentucky, Missouri, Mississippi, Iowa, Minnesota, Nebraska and Washington, also, as already mentioned, have adjudged that no private action can be maintained to recover damages against a city for an injury caused by negligence of members of its fire department while engaged in their official duties. The decisions are so uniform, and treat the point as so well settled, that it is enough to cite them, without stating them in detail. They are as follows: Knight v. Philadelphia, (1884) 15 Penn. Weekly Notes, 307; Fire Insurance Patrol v. Boyd, (1888) 120 Penn. St. 624, 646; Kies v. Erie, (1890) 135 Penn. St. 144, 149; Frederick v. Columbus, (1898) 58 Ohio St. 538, 546; Wilcox v. Chicago, (1883) 107 Illinois, 334, 338-340; Greenwood v. Louisville, (1877) 13 Bush, 226; Davis v. Lebanon, (Kentucky, 1900) 57 Southwestern Reporter, 471; Heller v. Sedalia, (1873) 53 Missouri, 159; McKenna v. St. Louis, (1878) 6 Missouri App. 320; Alexander v. Vicksburg, (1891) 68 Mississippi, 564; Saunders v. Fort Madison, (Iowa, 1900) 82 Northwestern Reporter, 428; Grube v. St. Paul, (1886) 34 Minnesota, 402; Gillespie v. Lincoln, (1892) 35 Nebraska, 34, 46; Lawson v. Seattle, (1893) 6 Wash. St. 184.

The law on this point, as understood and administered throughout the country by the highest courts of all the States in which the question has arisen, is unqualifiedly recognized by the principal text-writers. Mr. Dillon, for instance, after observing that

JUSTICES GRAY, BREWER, SHIRAS and Peckham, dissenting.

"police officers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties," goes on to say: “So, although a municipal corporation has power to extinguish fires, to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires, it is not liable for the negligence of firemen appointed and paid by it, who, when engaged in their line of duty upon an alarm of fire, ran over the plaintiff, in drawing a hose-reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff, caused by the bursting of the hose of one of the engines of the corporation, through the negligence of a member of the fire department; nor for negligence whereby sparks from the fire engine of the corporation caused the plaintiff's property to be burned. The exemption from liability, in these and like cases, is upon the ground that the service is performed by the corporation in obedience to an act of the legislature; is one in which the corporation, as such, has no particular. interest and from which it derives no special benefit in its corporate capacity; that the members of the fire department, although appointed by the city corporation, are not the agents and servants of the city for whose conduct it is liable; but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city without being expressly given; and the maxim of respondeat superior has therefore no application." 2 Dillon on Municipal Corporations (4th ed.), §§ 975, 976. See also 1 Shearman and Redfield on Negligence, § 265; Tiedeman on Municipal Corporations, § 333a; 1 Beach on Public Corporations, § 744; 13 Amer. & Eng. Ency. of Law (2d ed.), 78.

The libellant relied on Mersey Docks v. Gibbs, L. R. 1 H. L. 93, in which the members of the town council of Liverpool and their successors, who had been formed by acts of Parliament into a corporation by the style of the Trustees of the Liverpool Docks, were held liable to an action for an injury to a vessel from a bank of mud which had been negligently suffered to remain in the docks. That decision proceeded upon the ground that the trustees of the docks were one of those corporations

JUSTICES GRAY, BREWER, SHIRAS and PECKHAM, dissenting.

formed for trading and other profitable purposes, and in their very nature substitutions on a large scale for individual enterprise; supplying to those using the docks the same accommodation and the same services that would have been supplied by ordinary dock proprietors to their customers; and being paid for such accommodation and services sums of money, constituting a fund which, although not belonging to them for their own use, was devoted to the maintenance of the works, and presumably to pay claims against the corporation for injuries caused by their negligence. See L. R. 1 H. L. 105-107, 122. It was of such bodies, that Lord Cranworth, after observing that the fact that the appellants, in whom the docks were vested, did not collect tolls for their own profit, but merely as trustees for the benefit of the public, made no difference in principle in respect to their liability, went on to say: "It would be a strange distinction to persons coming with their ships to different ports of this country, that in some ports, if they sustain damage by the negligence of those who have the management of the docks, they will be entitled to compensation, and in others they will not; such a distinction arising, not from any visible difference in the docks themselves, but from some municipal difference in the constitution of the bodies by whom the docks are managed."

But the city of New York, in establishing and carrying on a fire department, is not a substitution for individual enterprise; nor does it perform any such services as ordinary individuals might perform to their customers; nor does it receive any compensation for the use of the fire-boat, or from those benefited by the acts of the fire department.

The decisions of this court contain nothing, to say the least, inconsistent with the conclusion that no action at law could be maintained in such a case as this.

This court, taking the same view of the liability of municipal corporations to actions at law for injuries caused by defects in highways or bridges, which has prevailed in New York and in most of the States, has held that an action of that kind may be maintained in the courts of the District of Columbia; Weightman v. Washington, (1861) 1 Black, 39; Barnes v. District of