NAUMBURG v. CITY OF MILWAUKEE, 146 F. 641

After stating the facts, as above-, the opinion of the court was delivered by ANDERSON, District Judge. The cause of action set forth in the complaint is based upon the negligence of the bridge tender in opening the draw or lift of the bridge, when plaintiff was crossing, whereby the plaintiff was injured, while exercising due care. The sufficiency of the complaint turns upon the question whether the bridge tender was such an agenr or servant of the municipality as that the latter is liable for his negligence — whether the doctrine of respondeat superior applies.

The Circuit Court held that the question was one of local law, that under the decisions of the Supreme Court of Wisconsin the opening of the' draw was a public or govevnmetal service, and that the doctrine of respondeat superior did not apply. It is well settled that municipal corporations have a dual character. They are governmental instrumentalities, endowed with powers and duties necessary for the establishment and maintenance of good government within their territory.

In the exercise of these powers and discharge of these duties they are political divisions of the state, employed by it as a means through which it may perform the duties that it owes to all citizens alike.

But they are more than mere governmental instrumentalities. ‘‘They are incorporated at the wish and special instance of the inhabitants for the advancement of their own private interests/’ and “extensive powders and privileges, -which are to be exercised for the improvement of the territory within their limits and for its adaptation to the purposes of business and residence, are conferred upon them.” While acting in their capacity as governmental instrumentalities they are, like the sovereign power itself, exempt from liability for acts done or omitted, unless such liability is expressly created by statute.

On the other hand, when they are acting, not in their public or governmental capacity, but in their municipal or corporate capacity, exercising- powers and privileges given them for their own corporate benefit, they are held liable for their acts and omissions in exercising these powers. Williams, Municipal Liability for Tort, §§ 4, 5, et seq., and authorities cited. The Supreme Court of Wisconsin has repeatedly recognized and declared this doctrine, with its distinctions. In Hayes v. Oshkosh, 33 Wis. 314, 14 Am.

Rep. 160, it was held that a municipality is not liable for the misconduct of its officers or employes when “the corporation is engaged in the performance of a public service, in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to sec performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community.” The defendant city was accordingly held not liable for the negligence of the fire department. In Folk v. Milwaukee, 108 Wis. 369, 84 N.

W. 420, it was held 'that the city was not liable for the death of a child lawfully attending one of its public schools, when such death was caused by negligently allowing the sewer of the school building to become clogged up; and the coftrt there said: “This court early adopted and lias consistently maintained tlie rule that a municipal corporation is not liable for injuries resulting from the acts or defaults of its officers "when it is engaged in the performance of a merely public service, from which it derives no benefit in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants, or the community” — citing Hayes v.

Oshkosh, supra. This phase of the rule is illustrated in many other Wisconsin cases. Schultz v. Milwaukee, 49 Wis. 264, 5 N. W. 342, 35 Am. Rep. 779, and Little v. Madison, 49 Wis. 606, 6 N. W. 249, 35 Am. Rep. 793, are illustrations of the doctrine of nonliability in respect to the acts or omissions of police officers. In Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030, the doctrine was applied to the acts of the board of public works in disposing of the city’s garbage; and in Manske v. Milwaukee (Wis.) 101 N.

W. 377, it was applied to a case where a person was injured by the negligence of a fireman in loading coal for the fire department. In each of these cases it was held that the municipality was not liable because it was engaged in a public service — -was acting in its governmental, and not in its corporate, capacity. On the other hand, the Supreme Court of that state has held that a municipal corporation is liable for the acts and omissions of its officers and employes engaged in the performance of duties that pertain to the corporate rights and powers of the municipality. In Wallace v. Menasha, 48 Wis. 79, 4 N.

W. 101, 33 Am. Rep. 804, it was ruled that the city was not liable for the acts of its treasurer in seizing and selling the property of one person for the taxes of another, and in the course of its opinion the court said: “We have thus far considered the case upon the hypothesis that the treasurer is the agent or servant of the city, for whose torts the city may, in a proper case, be held liable. But, under the authorities, it may well be doubted whether the rule respondeat superior has any application to acts performed or torts committed by him in the collection of taxes.

The levy and collection of taxes are governmental rather than municipal functions, delegated, it is' true, to municipal officers for convenience, but still governmental. It may well be claimed that, in the exercise of those functions, such officers are public officers, discharging public and not municipal or corporate duties.1 If so, there seems to be no ground for holding the municipality liable for their torts committed in the exercise of those functions— no room for the application of the rule respondeat superior- in such cases.

A distinction is made in many well-considered cases between torts committed by municipal officers or agents in the discharge of such public duties, and those committed in the discharge of purely municipal or corporate.duties by the officers or agents of the city or village; the municipality being held liable for the latter, but not liable for the former class of torts. In addition to the cases and authorities cited in the brief of counsel for the city, see .2 Dillon on Munic. Corp. 464-470, inclusive, and cases cited; Bailey v. Mayor, etc., of N. Y. 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Oliver v.

Worcester, 102 Mass. 489, 3 Am. Rep. 485. This distinction was recognized in Hayes v. Oshkosh, 33 Wis. 318, 14 Am. Rep. 760, and controlled the judgment of the court.” In Durkee v. Kenosha, 59 Wis. 123, 17 N. W. 677, 48 Am.

Rep. 480, the city was held liable for the acts of its officers in seizing and selling property to pay a void special assessment for benefits from the opening of a street; and the court said: “The laying out and opening of streets in a city, the assessment of damages and benefits resulting therefrom, and the collection of the sums so assessed as benefits, are strictly municipal functions, and the officers of the city by whom those functions are performed thereby discharge municipal or corporate duties, as distinguished from public or governmental duties.

Hence this case is not within the rule established in Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760; Schultz v. Milwaukee, 49 Wis. 254, 5 N. W. 342, 35 Am. Rep. 779, and Little v. Madison, 49 Wis. 605, 6 N. W. 249, 35 Am. Rep. 793, which relieves the municipality from liability for torts committed by its officers in the discharge of merely public or governmental duties. Neither is the case within the rule of Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804, nor within the application of the rule of the cases above cited, suggested in the doubt expressed in the opinion. The rule of Wallace v.

Menasha is that if the collecting officer seize the property of A. for nonpayment of a tax assessed against B., and which the city authorities have directed him to collect of B., the city is not liable to A. in an action of tort for such unlawful seizure of his property. The judgment went upon the grounds that the city had not authorized or directed its officer to make the seizure complained of and that he acted without any authority, real or apparent. In the present case the officer seized the property of the plaintiff in strict obedience to the mandate of the city council. The doubt expressed in Wallace v.

Menasha is upon the question whether the rule of the cases first above cited is not also applicable to torts committed by the treasurer in the collection of taxes — whether the rule respondeat superior has any application in such a case. This point was not decided, and perhaps the suggestion of it might better have been omitted from the opinion, inasmuch as it did not aid in the determination of the case.

However that may be, we were then speaking of the general taxes levied for the support of the government under authority of the government, and not of a mere local assessment for a municipal improvement in which the general public has no direct concern. The distinction between the two cases is obvious and substantial.” , In Nicolai v. Town of Vernon et al., 88 Wis. 551, 60 N. W. 999, the distinction between the two classes of cases was declared and enforced in tlie case of a town.

This was an action to restrain the defendants, the town, and the supervisors and path master of the town, from removing' plaintiff’s fences and taking a strip of his land for highway purposes. The town demurred to the complaint and its demurrer was sustained.

The Supreme Court reversed the ruling of the lower court, holding that the act complained of was an “attempted discharge of a municipal or corporate duty, as distinguished from a public or governmental duty,” and said: “In such cases the municipality is liable if the acts of its officers prove to be unlawful.” It seems therefore to be settled in Wisconsin that if the city of Milwaukee, in the control and management of the bridge in question in this case, was performing a public service, acting in its public or governmental capacity, there is no liability; but it seems to be equally well settled that, if in such control and management it was acting in its municipal or corporate capacity, there is liability.

The question, then, comes to this: In which capacity did the city maintain, support, and (through its bridge tender) attend this bridge? In so doing was it performing a governmental or municipal act? So far as our researches have gone this point has not been expressly ruled by the Wisconsin Supreme Court. The case of Weisenberg v. Winneconne, 56 Wis. 667, 14 N. W. 871, has been called to our attention. The court in that case said: “These are two writs of error in the same case, in the first of which the demurrer to the complaint was sustained, and in the second it was overruled.

The complaint substantially charges that the deceased came to his death while navigating the Wolf river, in this state, with a vessel called the ‘North Star,’ of which he was part owner, by reason of the acts of malfeasance and misfeasance of the defendants in placing a bridge across said Wolf river, a navigable stream within said town and village, which obstructed the navigation thereof unless a certain draw therein had been opened, and. that by the negligence of the officers, agents, and employes of said defendants such draw was not opened.

In short, the complaint charges that the defendants obstructed said river and neglected to remove such obstruction, by reason whereof the deceased, while navigating the same, was killed. This would appear to be a straight common-law action, as well as warranted by

section .1698, Rev. St. 1898. .The defendant town became responsible for this obstruction by the purchase of the bridge, by virtue of

chapter 216, p. 424, Priv. & Loc. Raws 1859, which required the town to keep such bridge in repair ‘and attended.’ The only right which either the town or village had to maintain this bridge by the law, or could have, was conditional that a draw should be constructed in the same and opened when the river at this point should be required for the navigation of boats and vessels, and the town clearly assumed the duty to so attend and manage such draw.

When this duty was neglected, then the bridge became and was a complete obstruction to the navigation of the river, and the town was responsible therefor, and for all special damage occasioned thereby. The complaint alleges that the town did maintain and control this bridge when the accident occurred.

It is not claimed that this special power, right, and duty imposed upon this town by the statute to maintain and attend this bridge were ultra vires, and the state clearly had the right to grant and the town had the right to assume such power, right, and duty; and, this being so, the town is liable for neglect of such special duty, as any corporation or individual would be under the same circumstances. Dillon on Munic.

Oorp. § 763. ⅜ * * There is certainly enough in this complaint to charge both defendants with the responsibility of 'maintaining this bridge and attending its draw, and their officers, ^agents, and employes with negligence in not opening the draw of the bridge, or otherwise removing the obstruction to the navigation, on due and proper notice and signal given by the deceased, and that by reason of such obstruction and negligence the deceased came to his death; and that is sufficient.

There ar» no close or complicated questions of law in the case, and the. liability of the defendants rests upon the plainest of elementary principles.” In the course of its opinion the court further said: “The only highway in question in this case is this navigable river, and the liability of towns in respect to roads and bridges is not involved; for the deceased was not seeking- to use the bridge for the purpose of travel, and it is complained of only as an obstruction to the navigation of the river as a. common highway which he had the right to navigate and use without unnecessary obstruction.” The negligence charged was the negligence of the officers, agents, and employés of the town in not opening the draw.

The town was held liable for neglect of this duty “as any corporation or individual would be under the same circumstances.” The question whether the duty of the “officers, agents, and employés” of the town, to attend the bridge, was a public or governmental, or a municipal or corporate, duty, seems not to have been raised, but it is not easy to see how “the liability of the defendants rests upon the plainest of elementary principles” or how the town could be held liable “as any other corporation or individual would be,” unless, in the light of the cases heretofore referred to, the duty to attend the bridge and open the draw was considered a corporate and not a governmental duty.

One of two propositions would seem to be clear: Either the Weisenberg Case holds that the maintenance and attendance of the bridge in that case was a corporate, and not a governmental, duty, .or the question has not been decided by the Supreme Court of Wisconsin. In the latter event the question is one of general law. . The -rule by which this question is to be decided has been clearly stated in Maxmilian v. Mayor, 62 N. Y. 160, 20 Am.

Rep. 468, in which Judge Folger, speaking for the court, said: “There are two kinds of duties which are imposed upon a municipal corporation: One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law', in the exercise of which it is as a sovereign. The former power is private and is used for private purposes; the latter is public and is used for public purposes. Lloyd v. Mayor, 5 N. Y. 374, 55 Am. Dec. 347.

The former is not held by the municipality as one of the political divisions of the state; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly.

But where the power is intrusted to it as one of the political divisions of the state, and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser by the public agents. Eastman v. Meredith, 30 N. H. 284, 72 Am.

Dec. 302.” And after full discussion he continues: “This becomes the practical question: Are the acts, which are to be done by the commissioners of charities and correction, acts to be done by them in their capacity as public officers in the discharge of duties imposed upon them by the Legislature for the public benefit, or are they acts done for the defendant, in what might be called its private character, in the management of property or rights voluntarily held by it for its own immediate profit or advantage as a corporation, though muring ultimately to the benefit of the public? Oliver v.

Worcester, 102 Mass. 489, 3 Am. Rep. 485.” In Oliver v. Worcester, 102 Mass. 489, 499, 500, 3 Am. Rep. 485, cited in Maxmilian v.

Mayor, supra, the court said: “The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity, in the discharge of duties imposed upon them by the Legislature for the public benefit, and for acts done in what may be called tbeir private character, in the management of property or rights voluntarily held by them for their own immediate profit or advantage as a corporation, although muring, of course, ultimately to the benefit of the public.

To render municipal corporations liable to private actions for omission or neglect to perform a corporate duty imposed by general law on all towns and cities alike, and from the performance of which they derive no compensation or benefit in their corporate capacity, an express statute is doubtless necessary. * * * But this rule does not exempt towns and cities from the liability to which other corporations are subject for negligence in managing or dealing with property or rights held by them for their own advantage or emolument.

Thus, where a special charter, accepted by a city or town or granted at its request, requires it to construct public works, and enables it to assess the expense thereof upon those immediately benefited thereby, or to derive benefit in its own corporate capacity from the use thereof, by way of toils or otherwise, the city or town is liable, as any other corporation would be, for any injury done to any person in the negligent use of the powers so conferred. Henley v. Lyme, 5 Bing. 91, s. c. 3 B. & Ad. 77; 1 Scott, 29; 1 Bing. N. C. 222 ; 2 Cl. & Fin. 331; 8 Bligh (N. S.) 690; Weet v. Brockport, 16 N.

Y. 161, note; Weightman v. Washington, 1 Black, 39, 17 L. Ed. 52; Nebraska City v. Campbell, 2 Black, 590, 17 L. Ed. 271; Perley, C. J., in Eastman v. Meredith, 36 N. H. 289-294, 72 Am. Dec. 302; Metcalf, J., in Bigelow v. Randolph, 14 Gray (Mass.) 543; Child v. Boston, 4 Allen (Mass.) 41, 51, 81 Am. Dec. 680.” The city of Milwaukee is by its charter required to maintain, support and provide bridge tenders for the bridge in question.

The bridge tender’s duties and compensation are “fixed and determined by the common council” and “any bridge tender may be removed at pleasure by the board of public works or by the mayor.” The bridge is maintained, supported, and attended at the expense of the city.

The city derives benefit in its own corporate capacity from the use of. ' the bridge, not by way of tolls, to be sure, but otherwise; for example, in “the improvement of the territory within its limits,” and in “its adaption to the purposes of business and residence.” The bridge is maintained, supported, and attended primarily for the benefit and convenience of tire inhabitants of the city, though inuring ultimately to the benefit of the public. The right and privilege is given to the city for its own corporate benefit and immediate advantage.

The maintenance, support, and attendance of the bridge are charged upon the city because of particular benefits to it. The bridge could not be maintained at all over this navigable river, except upon condition that it be managed with a draw so as to permit navigation of the river. Therefore the state, in granting the right and privilege to the city to maintain the bridge, granted it upon this condition and imposed upon the city the specific duty of managing the draw. The Supreme Court of the United States has spoken upon this point. In Weightman v. Corporation of Washington, 1 Black, 39, 17 L.

Ed. 52, the question arose whether the city in the maintenance.of a bridge within its limits was invested with power over the bridge as a public agent merely, or possessed its powers and was charged with its duties in that regard in its municipal or corporate capacity. The charter of the city provided that the corporation should have the sole control and management of the bridge and should be chargeable with the expense of keeping it in repair.

The plaintiff alleged that the city negligently permitted the bridge to become out of repair, and unsafe and dangerous, and that,' while he was lawfully passing over the bridge, it broke and gave way and he was injured. The court below instructed the jury to return a verdict for the defendant. On writ of error the city maintained that it was invested with power over the bridge as agent of the public and for public purposes exclusively, and therefore was not liable. The Supreme Court in disposing of this contention said: “⅜ * ⅜ defendants insist that, being a municipal corporation created by

an act of Congress, they are invested with the power over the bridge merely as agents of the public, from public considerations and for public purposes exclusively, and they are not liable for the nonfeasances or misfeasances of the persons necessarily employed by them to accomplish the object for which, the power was granted.

Municipal corporations undoubtedly are invested with certain powers, which, from their nature, are discretionary, such as the power to adopt regulations or by-laws for the management of their own affairs, or for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of policemen and firemen, and for many other useful and important objects within the scope of their charters.

Such powers are generally regarded as discretionary, because, in their nature, they, are legislative; and although it is the duty of such corporations to carry out the powers so granted and make them beneficial, still it has never been held that an action on the case would lie against the corporation, at the suit of an individual, for the failure on their part to perform such a duty.

But the duties arising under such grants are necessarily undefined, and, in many respects, imperfect in their obligation, and they must not be confounded with the burdens imposed, and the consequent responsibilities arising, under another class of powers usually to be found in such charters, where a specific and clearly-defined duty is enjoined in consideration of the privileges and immunities which the act of incorporation confers and secures.

Where such a duty of general interest is enjoined,-and it appears, from a view of the several provisions of the charter, that the burden was imposed in consideration of the privileges granted and accepted, and the means to perform the duty are placed at the disposal of the corporation, or are within their control. they are clearly liable to the public if they unreasonably neglect to comply with the requirement of the charter; and it is' equally clear, when all the foregoing conditions concur, that, like individuals, they are also liable for injuries to person or property arising from neglect to perform the duty enjoined, or from negligence and unskilli'uluess in its performance.” The case was accordingly reversed.

The defendant in error cites four cases to support the proposition that in the operation of the bridge the city is engaged in the performance of a purely governmental duty: Daly, Adm’r, v. New Haven, 69 Conn. 644, 38 Atl. 397; Butterfield v. Boston, 148 Mass. 544, 20 N. E. 113, 2 L. R. A. 447; Corning v. Saginaw, 116 Mich. 74, 74 N. W. 307, 40 L. R. A. 526; and French v. Boston, 129 Mass. 592, 37 Am. Rep. 393. French v. Boston was an action for damages alleged to he caused by the detention of plaintiff’s schooner by the superintendent of a draw in a bridge.

The court held that the duty imposed was a public duty, and therefore held the city not liable. There is no discussion of the question, no recognition of the well-settled distinctions in such cases, and no authorities are cited. The conclusion reached in that case is precisely the opposite of that reached in the case of Weiscnberg v. Winneconne, supra, while in their facts the cases are practically identical. Butterfield v.

Boston in its facts is much like the case at bar, but the scope of the decision may be seen by the first sentence of the opinion: “This case was tried upon the second count in the declaration, and the only question before us is whether the defendant is liable by reason of a defect in a highway.” The opinion closes as follows: “The injury to plaintiff was caused, not by any failure of the city to perform its duty, but, as we have before said, by a momentary negligence of the gatemau or draw tender.

For this negligence the city is not responsible, and it cannot be indirectly held liable, upon the theory that this negligence created a defect in the street which the city by reasonable diligence might have remedied.” There was no discussion of the question whose servant the draw tender or gateman was, nor in what capacity, governmental or corporate, the city acted in the management and control of the bridge. Corning v. Saginaw involved a state of facts similar to those in French v. Boston, and, like the latter case, cannot he reconciled with Weisenberg v. Winneconne. Daly, Adm’r, v.

New Haven is in its facts much like the case at bar, and the court held the city not liable. In the course of the opinion it is said: “The duty to provide and maintain this bridge as a part of a public highway over the river, and'the duty to build, maintain, and operate a suitable draw in the bridge for the benefit of the public highway up and down the river, are public governmental duti&s” — citing several Connecticut cases and French v. Boston, Butterfield v. Boston, and McDougall v. City of Salem, 110 Mass. 21. McDougall v.

Salem was an action by one of the crew of a schooner, who received injuries while attempting to pass through a draw, by reason of the insufficiency of the draw. The court held that by the action of the county commissioners, under a certain statute, the bridge became a part of the highway, that the statute only required the city to keep the* bridge safe for travelers on the highway, that the plaintiff was not such a traveler, and there could be no recovery. This case, like French v. Boston and Corning v. Saginaw, cannot be reconciled with Weisenberg v. Winneconne. So far as the Connecticut cases cited in Daly v.

New Haven are concerned, it may be observed that the United States District Court for the District of Connecticut, in Greenwood v. Westport, 60 Fed. 560, after an exhaustive. review of the decisions of that state and elsewhere, held, in a case which in its facts was like the case of Weisenberg v.

Winneconne, that “the operating of a draw in a drawbridge was a mere private corporate duty.” In our opinion the duty to maintain, support, and attend the Grand Avenue Bridge in Milwaukee is not a governmental, but a corporate, duty, that the negligence of the bridge tender is the negligence of the city, and that the doctrine of respondeat superior applies.