O'Leary v. Board of Fire & Water Com'rs of Marquette

• Decision Date: 24 January 1890
• Citation: 44 N.W. 608,79 Mich. 281
• Parties: O'LEARY v. BOARD OF FIRE & WATER COM'RS.
• Court: Michigan Supreme Court

44 N.W. 608

79 Mich. 281

O'LEARY v. BOARD OF FIRE & WATER COM'RS.

Supreme Court of Michigan

January 24, 1890

Appeal from circuit court, Marquette county; C. B. GRANT, Judge.

Action by Jeremiah O'Leary against the board of fire and water commissioners of the city of Marquette. Judgment was rendered for plaintiff, and defendant appeals.

F. O. Clark, for appellant.

Mapes & Kinkade, for appellee.

CAMPBELL J.

Plaintiff was injured by falling into a ditch dug by the servants of defendant for laying water-pipes. He recovered damages to an extent not held by the trial judge to be beyond the merits of the case; and, if defendant is liable at all, there seems to be nothing in the record to show error in holding the judgment regular and proper in law, although, as not uncommon in such cases, the jury gave the plaintiff the benefit of all the disputed facts. But it is claimed that under the statutes regulating its powers, and those of the city of Marquette the defendant cannot be held legally responsible for the negligence of its servants in an action in tort for damages. That the individual wrong-doer, if there was one, by whose misconduct plaintiff was hurt, is responsible, is not disputed. Whether the corporation in charge of the public ways is liable is not before us. The sole question is whether this corporation, which is created to subserve certain important municipal purposes, has been made responsible by law for such accidents, when, if not incorporated, it is not shown that it would be, is the only matter for our consideration; and the differences existing under different charters are such as to leave the matter to be decided by its own facts. The defendant was incorporated by "An act to create a board of water commissioners in the village of Marquette, and to define its powers and duties," approved March 2, 1869. The subsequent incorporation of the city merely made the necessary changes to meet the change in government. Although not in terms declared to be a corporation, the powers given them are in such language as to make them such. They are liable, as well as competent, to be impleaded, to make contracts, and hold property, to have a seal, and make by-laws, and generally "to do all legal acts which may be necessary and proper to carry out the effect, intent, and object of this act." As all of their powers are confined legally to the scope of the statute, it is necessary to consider them. The members derive their appointment from the corporate body of the city, and not from the people. By section 6 they are required "to examine and consider all matters relative to supplying said [city] of Marquette with a sufficient quantity of pure and wholesome water for domestic use, also to provide suitable and efficient means for the extinguishment of fires." This is the general and sole purpose of all their incidental powers. By subsequent sections they are empowered, under approval of the electors by vote on that question, to issue bonds to a limited extent, and, if unable to pay, to renew them. They are authorized to report to the city council, which is empowered, but not expressly required, to raise by tax any sums beyond the revenue of the board necessary to pay principal or interest on the bonds, or "any deficiency in operating expenses." They are authorized, "after the necessary means have been procured, as herein provided," to purchase necessary lands and materials, and construct reservoirs, buildings, machinery, and fixtures to supply water, and to provide means for fire protection, and are given, for the purposes of the "fire department," the powers which were before possessed by the village. They are empowered to lay pipes for water, and to build hydrants, and to employ such persons as they deem necessary to perform their duties. They have power to levy water-rates on consumers on an equitable basis. They can procure lands by condemnation, where needed, and, on payment of the damages into the city treasury, may get the title. All materials contracted for or procured by them are exempt from execution.

It may be important, in this connection, to consider the legal position of this board in its functions. While it is a local corporation, created to serve municipal purposes, it is in no sense a municipal corporation, within the legal meaning of that term. It has been settled in this state that there can be no municipal corporation that is not the direct representative of the people of its locality. Attorney General v. Councilmen, 58 Mich. 213, 24 N.W. 887; Allor v. Auditors, 43 Mich. 76, 4 N.W. 492; People v. Hurlbut, 24 Mich. 44; Board v Auditors, 68 Mich. 576, 36 N.W. 743; Commissioners v. Detroit, 28 Mich. 228; Attorney General v. Detroit, 29 Mich. 108; Butler v. Detroit, 43 Mich. 552, 5 N.W. 1078. In several of these as in other cases the doctrine has been recognized that the establishment of corporations to act as municipal boards or agencies did not give them any...