The Maggie P.

• Decision Date: 22 September 1885
• Citation: 25 F. 202
• Parties: THE MAGGIE P. v. THE MAGGIE P. [1] CITY OF ST. LOUIS
• Court: U.S. District Court — Eastern District of Missouri

25 F. 202

THE MAGGIE P.

CITY OF ST. LOUIS v. THE MAGGIE P. ^[1]

United States Circuit Court, E.D. Missouri.

September 22, 1885

Leverett H. Bell, for libelant.

Chester H. Krum, for claimant.

BREWER J., (orally.)

Before calling the equity docket this morning I will dispose of the case of City of St. Louis against The Steamer Maggie P which was argued and submitted at the spring term. The important facts are briefly these: In the forepart of February, 1884, the steamer Maggie P. was lying at the levee in this city, just below the bridge. At the breaking up of the ice the boat was crowded up against some debris or refuse that had been thrown on the levee and frozen there, and was injured so that she partially filled with water and sunk. On February 4th some negotiations, alleged on the one side to have terminated in a contract, but denied on the other, were entered into between the master of the boat and the assistant harbor-master for immediately pumping the water out of the steamer and raising her at that time, February 4th. Nothing however, was then done, and the river rising, the water overflowed and filled the hull of the boat, and she remained there until the twenty-third of February, when again negotiations were entered into, and finally the harbor-boat came and pumped the water out, and the steamer was raised and towed to the dock for repairs. Thereupon the city filed a libel for these services. The claimant filed a cross-libel claiming that on the fourth of February a contract was entered into, as above stated, which the city failed to perform, and in consequence of which damages resulted.

On the trial of the cause in the district court the court found that there was such contract made, and awarded damages to the claimant in the sum of twenty-three hundred and odd dollars. The city appealed to the circuit court, and the appeal was argued last spring. In the mean time some additional testimony was taken. When the case was first argued before me the question arose in my mind as to whether the city could make, as a municipality, a valid contract for doing the work of pumping water out of the steamer and raising her,-- a contract entitling the city to compensation for performance and exposing to liability for non-performance; whether that was not a matter outside the scope of municipal powers; and I requested counsel to furnish briefs upon that question, which they have done. I have given the matter a good deal of thought and study during the summer, and after some wavering have reached this conclusion: The principle applicable to such cases, I think, is clear, and the only difficulty has been in its application to the case at bar. I suppose a city can make no contract for the discharge of a purely public duty; such a contract as in case of performance it can enforce compensation for, or for non-performance expose itself to liability. It cannot use public funds in any such direction. A city cannot contract with me to put out a fire in my building, and then exact a compensation from me for the extinguishing of that fire, nor thus expose itself to liability if it failed to put out that fire. It is discharging a purely public duty. At the same time, when it has in its possession instrumentalities, and hires employes for the purpose of discharging some public duty, I see no reason why, when the exigencies of public duties do not require the use of those instrumentalities and employes, it may not make a valid contract to use them in some private service. Thus, take the fire department. The city, having its engines and firemen, might make a valid contract with me to pump water out of a cellar, and compel me to pay for this service. The contract is binding on the one side as well as on the other, and there would be a liability on its part for non-performance, except so far as performance was interfered with by the exigencies of public duty, as by the sudden occurrence of a fire. Take the public school system. The city builds its public-school buildings, employes its teachers, paying therefor by means of taxation. Now, I see no reason why the city might not say to one living outside the city, 'You may send your children to one of these schools for a stipulated sum. ' In respect to such a matter the city would be keeping a private school, as it were,-- rendering private service,-- entitled to all the benefits and subject to all liabilities of a private contract. And, generally speaking, when public duty does not interfere with private service a city may make a valid contract for the use of its instrumentalities in the latter.

Now what power has the city given it in respect to this harbor and levee? The fourth subdivision of section 26 of article 3 of the scheme and charter gives to the city power 'to construct all needful improvements in the harbor; to control, guide, or deflect the currents of the river; to erect, repair, and regulate public wharves and docks; to regulate marine railways; to regulate and license all ferries and tow-boats, towing boats or other water-craft into or out of or within the harbor; to sell ferry privileges within the city limits, and to establish ferry...