Gilboy v. City of Detroit

Grant, J.

(after stating the facts). The record presents the sole question, Is a municipality liable for the negligence of officers of the board of health in the performance of their duty ? Counsel for the plaintiffs cite no authorities to support their contention, and probably for the vei’y good reason that none can be found. The authorities universally hold to the contrary. The universal rule is that such boards and officers are not acting for private, but for public, purposes. They represent the entire State, through the municipality, a political subdivision of the State; and municipalities, in the absence of express statutes fixing liability, are not liable for the negligence of such officers and boards. Maxmilian v. Mayor, etc., of City of New York, 62 N. Y. 160 (20. Am. Rep. 468); City of Richmond v. Long’s Adm’rs, 17 Grat. 375 ( 94 Am. Dec. 461 ); Brown v. Inhabitants of Vinalhaven, 65 Me. 402 ( 20 Am. Rep. 709 ); Barbour v. City of Ellsworth, 67 Me. 294 ; Mead v. City of New Haven, 40 Conn. 72 ( 16 Am. Rep. 14 ); Ogg v. City of Lansing, 35 Iowa, 495 ( 14 Am. Rep. 499 ); Sherbourne v. Yuba Co., 21 Cal. 113 ( 81 Am. Dec. 151 ); City of Detroit v. Blackeby, 21 Mich. 84 ( 4 Am. Rep. 450 ); Hill v. City of Boston, 122 Mass. 344 ( 23 Am. Rep. 332 ); 2 Dill. Mun. Corp. § 965. Brown v. Inhabitants of Vinalhaven is the counterpart of this in its facts.-

The rule is so clearly stated by Justice Folger in Maxmilian v. Mayor, etc., of City of New York , that we quote it:

“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. The former is not held by the municipality as one of the political *123 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 involve, 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.”

Judgment affirmed.

The other Justices concurred.