personally and not shared in common with the public at large or a particular set or class of persons.12

Proximate cause. It is not just that one should be made pecuniarily responsible for the negligence of another and the further condition must therefore exist that the injury complained of must be the proximate and immediate result of the negligent act and that the one injured must be free from any want of care which directly contributed to the injury.13

§ 953. Liability of the state or sovereign.

Organized government is established for the benefit and advantage of the community at large and is engaged in carrying out purely governmental powers or functions,-those which are assumed exclusively by it for the benefit of the public. The proper performance of these duties requires an application of the privilege of sovereignty, which is beyond the realm of a legal duty. The state or sovereign, therefore, is not subject in the exercise of any of its powers or the performance of its duties to the judgment of the courts which it creates or the principles of law applying to private persons which it establishes and enforces, and further, as negligence is based upon a lack of care, the sovereign is not liable because there is no standard or measure of care which can be applied to it. Freedom from liability attaches both in respect to transactions of a contractual nature or those sounding in tort. The sovereign may, however, by express assent,

14

12 See 993, post. Chidsey v. Town of Canton, 17 Conn. 475; Sohn v. Cambern, 106 Ind. 302, 6 N. E. 813; Brant v. Plumer, 64 Iowa, 33, 19 N. W. 842; Houck v. Wachter, 34 Md. 265; Smith v. Inhabitants of Dedham, 62 Mass. (8 Cush.) 522; Griffith v. Sanbornton, 44 N. H. 246; Gold v. City of Philadelphia, 115 Pa. St. 184, 8 Atl. 386; Williams v. Tripp, 11 R. I. 447; Hale v. Town of Weston, 40 W. Va. 313, 21 S. E. 742.

13 See §§ 993, 1026, 1043 and 1059, post.

14 State v. Hill, 54 Ala. 67; Peo

ple v. Talmage, 6 Cal. 256; Pattison v. Shaw, 6 Ind. 377; Metz v. Soule, 40 Iowa, 236; Sinking Fund Com'rs v. Northern Bank, 58 Ky. (1 Metc.) 174; Garr v. Bright, 1 Barb. Ch. (N. Y.) 157; Clodfelter v. State, 86 N. C. 51; Williamsport & E. R. Co. v. Com., 33 Pa. 288; Treasurers v. Cleary, 3 Rich. Law (S. C.) 372; State v. Ward, 56 Tenn. (9 Heisk.) 100. A state does not guarantee the fidelity of its officers. Hosner v. De Young, 1 Tex. 764. But a state may sue. See Spencer v. Brockway, 1 Ohio, 259.

permit the bringing of actions against it in certain prescribed cases. The United States has established a court of claims for the determination of cases of a contractual nature.15 The state of New York has also made provision for the establishment of an official body for the consideration of claims which may be urged against it.16 The same condition also exists in other states.17

§ 954. Public corporations defined and classified.

In sections 4 to 8, both inclusive, of this work, a classification of public corporations has already been given with definitions. and a statement of the distinguishing characteristics of each class and to these sections the reader is referred. To understand, however, more clearly, the basis of a liability for negligence, a brief resume of those sections is now given. Public corporations are divided into quasi corporations and municipal corporations proper. Each is regarded as an agency of government. This character, quasi corporations sustain solely. They are political agencies; subdivisions of the state such as counties, townships, road and school districts or like bodies created by the sovereign power of the state of its own sovereign will without the particular solicitation, consent or concurrent action of the people who inhabit them; organized almost exclusively with a view to the policy of the state at large for the purpose of political organizaton and civil administration in purely governmental matters like finance, education, provision for the poor, military organization, or the general administration of justice.18 All of their powers and functions have a direct and exclusive reference to govern

15 Langford v. United States, 101 U. S. 341; United States v. Lee, 106 U. S. 196; United States v. Great Falls M. Co., 112 U. S. 645; Hart v. United States, 118 U. S. 62; United States v. Irwin, 127 U. S. 125; Thayer v. United States, 20 Ct. Cl. 137; Burke v. United States, 21 Ct. Cl. 317; Cumming v. United States, 22 Ct. Cl. 344; Act March 3, 1887 (24 Stat. p. 505) c. 359.

16 Laws N. Y. 1876, c. 444; Laws 1883, c. 205; Laws 1884, c. 85; Laws

V.

1888, c. 435; Silsby Mfg. Co.
State, 104 N. Y. 562, 11 N. E. 264.
But see Coster v. City of Albany, 43
N. Y. 399; Lewis v. State, 96 N. Y.
71; Locke v. State, 140 N. Y. 480, 35
N. E. 1076.

17 State v. Hill, 54 Ala. 67; Clodfelter v. State, 86 N. C. 51; Clark v. State, 47 Tenn. (7 Cold.) 306.

18 Jones v. City of New Haven, 34 Conn. 1. See authorities cited from §§ 1 to 8, ante.

1

mental affairs and they are, in fact, but branches of the general administration. Their duties are exclusively governmental. As a rule they include large areas sparsely settled and the relations of life and business within them are comparatively simple. Municipal corporations proper are not only governmental agents but are also organizations created under authority of law and possessing the power to provide for local necessities and conveniences for their own communities. They are created mainly for the interest, advantage and convenience of a particular locality and its people; they comprise ordinarily, congested centers of popula tion in which the relations of private life and business are exceedingly complex. Their powers and functions in the latter respect are not, as a rule, arbitrarily imposed by the sovereign but secured through their own affirmative action or by their consent. The people residing within their limits are given a greater latitude and degree of local self-government in adopting measures looking to their local advantage. The duties which rest upon them are more in number and more burdensome than those which devolve upon quasi corporations.19

955. Duties performed by each.

From the discussion in the sections cited above and also in the preceding section, the chief points of differentiation can be logically deduced, namely, the element of consent as to form of government, simplicity or complexity of private life and business relations within their limits and the right of exercising a greater or less number of powers and functions. Because of these difference also in their relative duties and obligations. The liability, obligations, and duties of a municipal corporation are justly increased and of a higher character than those which rest upon public quasi corporations. (a) Quasi corporation; liability. Since the government of a quasi corporation is ordinarily imposed by the sovereign, its business and private relations simple and further, because it performs solely governmental duties, the universal rule obtains that no

19 See authorities cited §§ 1 et

seq.

See Williams, Mun. Liab.

Tort, §§ 1 et seq.; Jones Neg Mun.
Corp. §§ 20-25.

liability exists in respect to the performance of its duties and obligations 20 unless one is expressly imposed by statute.21

(b) Municipal corporations; liability. A municipal corporation proper as a governmental agent in performing the duties appertaining to that relation is subject to that rule of law just given in respect to public quasi corporations. There rests in addition, however, upon municipal corporations proper, certain obligations and duties which are the direct result of their private, local or proprietary character and in respect to their liability the rule above does not apply and they are almost universally held liable for a failure to properly perform these duties.22 Such a liability may, however, be created solely by the result of some statutory provision. 23

8956. Character of duty.

In a preceding section it was stated that to give rise to actionable negligence the character of the duty must be established as one on account of which a failure to perform or perform properly will give cause to a cause of action. There can exist no liability in respect to the performance of a governmental duty by either class of public corporations. In performing duties of this character they are acting as a part of the sovereign and the same rule

Winchester, 32 N. H. 435; Wakefield v. Village of Newport, 60 N. H. 374; Hughes v. Monroe County, 79 Hun, 120, 29 N. Y. Supp. 120; Markey v. Queen's County, 154 N. Y. 675, 49 N. E. 71, 39 L. R. A. 46; Jacobs v. Hamilton County, 1 Bond, 500, Fed. Cas. No. 7,161. County not liable for infringement of patent. Crause v. Harris County, 18 Tex. Civ. App. 375, 44 S. W. 616; Field v. Albermarle County (Va.) 20 S. E. 954. But see May v. Mercer County 30 Fed. 246, and May v. Logan County Com'rs, 30 Fed. 250, where counties are held liable for infringement of patent rights.

21 City of Little Rock v. Willis, 27 Ark. 572.

22 Weightman

V.

Washington

Abb. Corp. Vol. III — 16.

Corp., 1 Black. (U. S.) 39; City of Chicago v. Norton Milling Co., 97 Ill. App. 651; Bennett v. City of New Orleans, 14 La. Ann. 120. A municipal corporation is not liable for damage to private property unless the act which caused it was done without lawful authority or being authorized by law was improperly or wantonly executed. Boye v. City of Albert Lea, 74 Minn. 230, 76 N. W. 1131; Conway v. Beaumont, 61 Tex. 10. A petition seeking to charge liability must clearly show that the act complained of was unlawful. See, also, §984, post, with many authorities cited.

23 City of Little Rock v. Willis, 27 Ark. 572.