for the reason that such corporations are considered the representatives of the government, and that their exemption from suit is necessary to make the prerogative available to the government itself;" citing Stewart Case and other

cases.

In the case of Howe v. New Orleans, 12 La. Ann. 482, the supreme court of Louisiana said:

"The city is no general warrantor against the acts of individuals.

Its police may be applied to for the purpose of preventing injuries, but if such police err in their judgment, or if injuries are occasioned because they are inefficient in the exercise of the powers with which they are vested, the city at large cannot be held responsible for acts of third persons, which, under a more sagacious and efficient police, might possibly have been prevented.' (Underlining mine.)

In the case of New Orleans, M. & C. R. Co. v. New Orleans, 26 La. Ann. 478, the supreme court of Louisiana again recognized the doctrine that a municipal corporation possesses two classes of rights, -public and private. In all that relates to the one class, it is merely the agent of the state, and subject to its control,—and that, as to the other class, it is the agent of the inhabitants of the place,— the corporators. The court adopted the language of Judge Dillon, to the effect that municipal corporations possess a double character, -the one, governmental, legislative, or public; the other, in a sense, proprietary or private,-and that the distinction, though sometimes difficult to trace, is highly important, and is frequently referred to, particularly in the cases relating to the implied or common-law liability of municipal corporations for the negligence of their servants, agents, and officers in the execution of corporate duties and powers. The distinction, which is fully recognized by the supreme court of Louisiana, between the public and the private powers and obligations of municipal corporations, has been just as fully recognized by the highest courts of many of the states. I refer only to a few of the many cases which state the distinction:

The case of Western College v. City of Cleveland, 12 Ohio St. 377, was an action against the city of Cleveland for damages caused to property by a mob. There being no statute in Ohio similar to the Louisiana Act No. 51 of 1855, it was attempted to hold the city of Cleveland responsible by reason of its city charter, which provided that:

"It shall be the duty of the city council to regulate the police of the city, preserve the peace, prevent disturbances and disorderly assemblages. (Underlining mine.)

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The supreme court of Ohio held that the duty intended was that properly appertaining to an administrative and legislative body acting in the government of a city,—the making regulations, by-laws, and ordinances for the purposes specified, to be enforced by the appointment of officers, and that neither on general principles, nor from the effect of that enactment, was the city of Cleveland responsible for the destruction of property by a riotous assemblage, or for the neglect of the officers in not preserving the peace, and preventing such destruction. The court said:

"It is the duty of the state government to secure to the citizens of the state the peaceful enjoyment of their property, and its protection from wrongful and violent acts. For the proper discharge of this duty, power is delegated in different modes. One of these is the establishment of municipal corporations. Powers and privileges are also conferred upon municipal corporations to be ex

ercised for the benefit of the individuals of whom such corporations are composed, and, in connection with these powers and privileges, duties are sometimes specifically imposed. It is obvious that there is a distinction between those powers delegated to municipal corporations to preserve the peace, and protect persons and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation, and its adaptation to the purposes of residence and business. As to the first, the municipal corporation represents the state,-discharging duties incumbent on the state. As to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done or omitted is governed by the same rule of responsibility which applies to like delegations of power. As to the second, the rules which govern the responsibility of individuals are properly applicable." A demurrer to the petition was sustained.

The case of Ulrich v. City of St. Louis, 20 S. W. 467, decided by the supreme court of Missouri, was an action in which the plaintiff alleged that, while incarcerated in the workhouse of St. Louis, he was disabled for life by the negligence of the jailer. A general demurrer having been filed to the petition, the demurrer was sustained by the lower court, and the cause dismissed. The action of the lower court was sustained by the supreme court. In the course of its decision the court said:

"The rule of law is well settled in this state that a municipal corporation is not answerable in damages for the negligent acts of its officers in the execution of such powers as are conferred on the corporation for the public good;" citing cases.

The court cited approvingly the language of Judge Dillon, as follows:

"The police regulations of a city are not made and enforced in the interest of the city, in its corporate capacity, but in the interest of the public;" citing

numerous cases.

In the case of Rusher v. City of Dallas, 18 S. W. 333, decided by the supreme court of Texas, it was held that a complaint, in a suit against a city, which alleges the arrest of the plaintiff by a city policeman for a supposed violation of a city ordinance, of which violation he was in fact innocent; that the arrest was made without a warrant or an affidavit; that unnecessary violence was used by the policeman; and that the policeman was incompetent, to the knowledge of the city,-states no cause of action. The court said, inter alia:

"A distinction is made where the act is done in promotion of the interest of the city, in its special corporate rights, and when done in the interest of the public. Where a city has special powers granted by charter, other than those concerning the public good and government of its citizens, so that its officers' acts thereunder are the acts of agents, and not of public officers, the city may become liable; but not where the act is that of an officer in enforcing ordinances of social government, or a general law of the land."

In Whitfield v. City of Paris, 19 S. W. 566, decided by the supreme court of Texas, where a policeman appointed by the city to kill dogs, negligently and recklessly discharged his gun at a dog, and seriously injured the plaintiff, a demurrer to the petition was sustained, and the action of the lower court affirmed by the supreme court. The court said:

"The enactment of the ordinance referred to in the petition [an ordinance áirecting the killing of dogs by a policeman] was an exercise by the city of its police power. Its purpose was to secure the safety, health, and welfare of the public. The man whose act was complained of was not, therefore, a mere servant or employe, though the petition so denominates him. He occupied the attitude of a policeman engaged in the enforcement of an ordinance of the city. In such a case the maxim, 'respondeat superior,' does not apply. Where a city acts as the agent of the state, it becomes the representative of sovereignty. It is not acting in the management of its private or corporate concerns, but in the interest of the public, and as the guardian of the health, peace, convenience, and welfare of the public. Under such circumstances, it is not liable for the acts of its officers or employes engaged in the execution of its ordinances;" citing numerous cases.

In the case of O'Rourke v. City of Sioux Falls (S. D.) 54 N. W. 1044, a demurrer was sustained to a complaint setting out that plaintiff had suffered great personal injuries by the firing of a cannon in the streets of the city in violation of a city ordinance. The complaint alleged that the city had appointed and continued in office a careless, inefficient, and negligent police force; that, with the full knowledge on the part of the members of the common council that it was to be done, the police officers permitted said cannon to be fired in the street after dark, and at a time when it could not be discovered by travelers on the street. The court said:

"There are two kinds of duties imposed upon a municipal corporation, in respect to which there is a clear distinction: One is imposed for governmental purposes, and is discharged in the interest of the public; and the other arises from the grant of some special power, in the exercise of which the municipality acts as a legal individual. In the latter case, the power is not held or exercised by the municipality as or because it is one of the political subdivisions of the state, and for public governmental purposes, but as and because it is, as an individual might be, the grantee of such power for private purposes. In such case the municipality is on the same footing with a private grantee of the same power, and is, like him, liable for an injury caused by the improper use of such power. But where the power is conferred upon the municipality as one of the political divisions of the state, and conferred, not for any benefit to result therefrom to such municipality, but as a means in the exercise of the sovereign power for the benefit of the public, the corporation is not answerable for nonjeasance or malfeasance by its public agents." Cases cited. (Underlining mine.)

Similarly, it has been held that a city is not responsible for the destruction of a building to stop the spread of fire (Correas v. San Francisco, 1 Cal. 452); that the city of New Orleans was not liable for the neglect of firemen in not extinguishing fires (Yule v. New Orleans, 25 La. Ann. 394); that a municipality is not responsible for neglecting to take precautions to prevent the spread of smallpox (Iowa Case; Field, Dam. p. 33, § 37). The cases cited are but a few of the adjudications on the subject, but they are amply sufficient to show that the distinction between the public and private duties and powers of municipal corporations is well established throughout the country.

But four cases have come under my observation in which actions have been brought against municipalities for loss of human life: Ritz v. City of Austin, 20 S. W. 1029–1031, in which the court of civil appeals of Texas held that a Texas statute which allows actual damages for the death of any person through the wrongful act, neglect, or default of "another" allows recovery only against natural

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persons, and not against corporations; City of Atchison v. Twine, 9 Kan. 356; Dale Co. v. Gunter, 46 Ala. 118; and Luke v. Calhoun Co., 52 Ala. 115. The three cases last cited were brought under special statutes distinctly giving a right of action against a munici pality or county for loss of life at the hands of a mob.

It is true, as Judge Dillon remarks, that it is sometimes difficult to determine whether a particular case comes under the operation of the governmental, or of the private, powers and duties of a municipal corporation. The difficulty naturally increases as particular cases approach nearer to the line which divides the two sets of powers and obligations. But the instant case presents no difficulty in that respect. It seems to me that it would be impossible to state an instance of public or governmental duty and power which would be plainer or more obvious than that which the instant case presents. I am perfectly clear that the duty, the nonperformance of which is here complained of, was a duty of sovereignty, transferred by the sovereign to the city of New Orleans, and that in its performance the city was merely the representative of the sovereign. I am equally clear that in the exercise of this governmental power the city officers, quoad their acts, under that power, are virtually state functionaries, acting for and on behalf of the state.. In my judg ment, the same exemption as to liability exists in this case in favor of the city as would exist in favor of the state, if state officers, by the nonperformance of duty prescribed by a state law appertaining to the governmental powers and duties of the state, had been guilty of the nonfeasance here complained of.

It may be that there are cases of extreme hardship where no redress can be had because of the malfeasance or nonfeasance of the officers of a municipality in the exercise of its governmental powers. The law of Canute the Dane making the vills responsible for the homicides committed within their limits, and King Alfred's law making the inhabitants of the tithings free pledges to the king for all offenses committed in their districts, may have been wise laws. It may be that every one should have an interest in preventing violence, and maintaining the public peace. But these are considerations which address themselves exclusively to the lawmaker. The courts cannot legislate. They can but apply the law as they find it. To summarize my conclusions:

1. Act No. 51 of 1855, providing that municipal corporations shall be liable for the destruction of "property" by mobs, does not sustain an action for the taking of human life.

2. The obligations of the city of New Orleans are of two kinds: The first consists of public or governmental duties; the second, of private or proprietary duties. As to the former the city is the representative of the sovereign, and enjoys the exemption of sovereignty from liability to suit. As to the latter, the city may be sued for tort, or on contract, as a private corporation might be sued. 3. The duty of the city, upon the nonperformance of which this action is founded, is a public, governmental duty.

Therefore, the exception of no cause of action must be sustained, and the cause dismissed.

STANDARD GASLIGHT CO. v. WOOD et al.

(Circuit Court of Appeals, Second Circuit. April 19, 1894.)

1. ASSUMI'SIT-PLEADING PERFORMANCE OF CONTRACT.

Where one has performed work in good faith, though not in the manner or within the time prescribed by the contract, and it has been accepted, he may recover its reasonable value under the common counts in assumpsit.

2. CONTRACTS-INTERPRETATION-CONDITIONS-PENALTIES.

Plaintiff contracted to do work for defendant, and complete it "by November 15th, under a penalty of $100 per day, provided you have foundation ready by June 15th." Held, that the completion of the foundation was a condition precedent, in default of which defendant could not claim the penalty as liquidated damages for plaintiff's delay.

3. APPEAL-REVIEW-HARMLESS ERROR.

In an action on a contract which embodied a penalty for delay in performance on plaintiff's part, the court ruled during the trial that defendant need not show actual damages arising from delay; and afterwards, in its charge, it called the jury's attention to the fact that no actual damage to defendant was shown. Held, that the error was without prejudice where defendant had admitted that it was impracticable to show actual damages.

In Error to the Circuit Court of the United States for the Southern District of New York.

Action by Richard Wood and others, constituting the firm of R. D. Wood & Co., against the Standard Gaslight Company. There was judgment for plaintiffs, and defendant brings error.

Delos McCurdy, for plaintiff in error.

Henry Galbraith Ward, for defendants in error.

Before LACOMBE and SHIPMAN, Circuit Judges.

SHIPMAN, Circuit Judge. On April 11, 1891, the firm of R. D. Wood & Co., the defendants in error, made a written proposition to the Standard Gaslight Company, the plaintiff in error, to construct for it à gas holder, which proposition was accepted in writing on the same day. The portion of the contract which is important in the present case is as follows:

"We propose to deliver and erect on a foundation furnished by you, on your property on 131st and 132d Sts., west, a three-lift gas holder and steel tank, the holder to have a capacity of 2,000,000 C. F. General dimensions as follows: * Specifications to be submitted for approval. Workmanship and materials to be of the best, and the entire work to be completed by Nov. 15th, 1891, under a penalty of $100 per day, provided you have foundation ready by June 15th, all complete, for the sum of one hundred and forty-nine ($149,000) thousand dollars, payable as follows: [Then follow the terms of payment.]"

The contractors entered upon the work, but it was not completed and accepted until February 16, 1892, or, in the opinion of the gas company, until February 27, 1892. The gas holder and tank were subsequently, and when the need for their use required, used by the company. R. D. Wood & Co. brought suit against the gaslight company in the circuit court for the southern district of New York to recover $52,293.06, the amount claimed to be due from it for work and material upon the structure.