298

I'EDERkL'RlllPORTER,

vol. 63.

fourth circuit at the October term, 1894.

placed., Hind .that the libelants have failed to make out their case, andthel,ibel must be dismissed. ; TIll$ Case" wall reversed on appeal.by the circuit court of appeals for the
v. MAYOR, ETC" OF TIlE CITY OF NEW YORK et 11.1. (DlstrlctCourt, S. D. New York. August 15, 1894.)

1.

COLLISlON':"'NEGLlGENCE OF FIRE BOAT.

The fire boat New Yorker, belonging to New York City, in hastening to t'e{lclla: fire opposite pler48, .East river, collided with a barl;:entlne which wlls properly moored to the dock. At the time of the collision another fire boat was alreadYll.t·:work on the fire. Held, that the urgeucy created by the duty to extlngliili\htlle fire was not so extreme as to excuse the New to exerc}se, .reasonable care. .Yorker's traUoD.lI:lld governmenh>f'the city of New York, shall continue to be in, and to be performed by tlle corporation aforesaid," i. e. the mayor and a.lde.r.m.e. n... section 34 cr.,ea.,.tes "the f01.'0. Wing. oth.erl,departments"'--:-amo?g . .. .. them. tIle fire department,-and act decIates the powers and duties of thl!Se departments to and governmental." 'Held, that the eXtinguishment of fires is a wQrk of local·· administration, within the nreaningof thestatutc; l,\nd assucb, though assigned to the fire department of a, duty of to bf' performed by that deplt1;tJnent as its a,gent,@d that the ,corporation 1s liable for a tort committed;l;r itsagenniliu;:gligeI).tly performing such duty; and is also liable as "ownerofthe vesse!l"under the:maritime law.

2. SUUl:-LIABILITY OF MUmCP-,.\L COltPQRATION-Fnujl DEPARTMENT. IJaws 1882, c. 410.§ 27; declares that. "for all purposes, the local adminis-

In Admi,ralty. Libelp'y RoberlW.,Workman against the mayor and aldermen of the city of New York, the fire department of said damages caused by a collision. city, and James A. Wing, Shoudy & Putnam andMl'.:nurlingham, for libelant William,H. Clark, Gorp, Counsel, and James M. Ward, Asst. Corp. Oounsel, for Mayor, etc. William L.Findlay,fol';Fire Departlllentand Gallagher. BR0w:N:,DistI;,ct Juqge. In the. afternoon of July 11, 1893, a fire side South street, about opposite pier broke out on the 48, East For the purpose. of assisting in putting out the fire, the fire,boat New Yorker, belonging to the mayor, aldermen, etc., made her way into the adjoining slip, and in the haste of the occasion Shl:t was run into the bow of the barkentine Linda Park, causing thehttter considerable da-mage, for which the above libel was filed. 1. For the is contended, that,ll. less rigid rule of care is applicable in the urgencies of such an occasion, and that considering the cil'cv.mstances, the collision should not be held to have proI haye no doubt that some acts which ceeded from might properly be <ieemed negligent .under ordinary circumstances . ought not to be held; the stress of :fires. But the :rule is, I to b.e applied as the test of what i$duecare, viz., the. care ,that a man of ordinary prudence would 'be reaslj)nably supposed-to f;l;tercise under like circumstances, if the burnblg, property, and the property damaged, had been his, own. at the factsfrom1;hat ,point

WORKMAN

v.

MAYOR, ETC., OF THE CITY

ot

NEW YORK.

299

of view, I still think, considering that the Linda Park was properly moored at the dock, that the fire boat Havemeyer was already at work in the slip, and the urgency not being extreme, that the mnning into the Linda Park arose through lack of reasonable prudence, and was unnecessary, and negligent. The fire boat belonged to the city, but. was under the control and management of the fire department, the beads of wbich are appointed by the mayor. It is contended that neither the mayor, aldermen, etc., nor the fire department, is legally answerable for these damages; not the mayor, etc., it is said, because though owner, it had no control over the management of the vessel; and its duties werp. not corporate duties. The fire department, it is said, is not liable, because not a corporation capable of being sued, nor baving any funds for the payment of any decree. 2. It is certainly a startling proposition, that all the shipping of this port, foreign alid domestic, should be at the mercy of the city fire boats, and liable to be negligently run down and sunk at any moment, without responsibility for damages. By the maritime law, both the vessel and the owner are ordinarily liable for such a marine tort. But if the .vessel is in the public service, s,he is not al-' lowed to be withdrawn therefrom by arrest and sale, for reasons of the public convenience (The Fidelity, 16 Blatcht 569, Fed. Cas. No. 4,758); or, if the owner, by whose authority and consent she is navigated, can show any other independent legal principal in control of the navigation, such, for example, as a charterer in possession, then the latter only is personally responsible, on the principle of · respondeat superior. If the legal principal at the time of the injury was the state; that is, if the vessel was strictly in the service of the state, and in the performance of state duties. the state as sovereign not being suable, there is, perhaps, no redress, except by action against the particular individual in fault, and an appeal to the grace and the moral obligation of the sovereign foreompensation by legislative act But it is obvious that the fire boat New Yorker, at. the time she inflicted this injury, was not in the service of the state, nor performing any duty of the state. The extinction of fires is not a duty of the state, nor a wprk which the state has ever undertaken to perform, as a part of its general governmental functions. The state was certainly not the principal in the navigation of the New Yorker. Only the corporation, or the fire department, as an independent legal entity, could, therefore, be the principal; and if the fire 'department is not an independent legal entity capable of being sued, as the defendant contends, then, inasmuch as the city corporation owned the vessel, appointed the heads of the fire department, and . put the vessel in their charge to be navigated for this very work, the corporation :must be responsible, in the view of the maritime law, as the only legal. principal in the case. To absolve itself, it must show some other independent legal principal in charge of the navigation. The F. C. Latrobe, 28 Fed. 377. 3. The relations of the city corporation and the fire department. to each other, and to the state; and their respective rights and ,

300

FEDERAL REPORTER,

vol. 63.

of local municipal law, upon which the deof appeals, a\'l the highest tribunal of the state, the federal courts. Detroit v. Osborne, 135 U. S. '492, 1012; Claiborne Co. v. Brooks, 111 U. S. 400, 410, 4 Sup. Ct489. . The co-q.rt of appeals has made .no adjudication as to the status of the fire.d;epartment of this city .under the consolidation act of 1882, or as responsibility of the corporation for the acts or negligence' of that department. As respec:ts. the general responsibility of municipal corporations for tortli!lJthe,$ettled law of this state, since the decision of the court of, appeals in COnrad v. Trustees, 16 N. Y. 158, adopting the opinion Qf, Seldon,J., in Weet v. Brockport (see note, 16 N. Y. 163), is that tbe conferring of corporate powers, privileges and duties, if accepted and acted upon by the corporation, i\'l a sufficient con· sideration for the implied agreement to exercise such duties with :fidelity, and that "whenever the corporation assumes to exercise its corporate powers, it is bound to Bee tp.atdue care and caution are used to avoid injury to (Id. p. 172). In all subsequent the decisions have turned essentially upon the question, whether the work or duties in the execution of which the negligence were properly corporate duties, intended to be imposed by law on the corporation; or whether they were duties of a general governmental nature, appropriate to the state, and imposed, not upon- the corporation itself, but only upon certain officers of the corporation, or a department of the corporation, as an independent agency of the state, as the state might have appointed any other individuals, or board, to perform the same duties. In the former case, the corporation is held liable; in the latter, To the latter class, under the acts prior to 1882, belong the duties. of the of .charities and correction, in charge of the poor, the criminal and the insane, (Maxmilian v. Mayor, etc., 62 N. Y. 160); those of the police department (Swift v. Mayor, 83 Y. 535); those of the board of education (Ham v. Mayor, 70 N. Y. 459); in: all which cases the corporation was held not liable. See, also, New York, etc., Sawmill Co. v. City of Brooklyn, 71 N. Y..5$0, and Bieling v. City of Brooklyn, 120 N. Y. 105, 106,24 N. E. 389. The doctrine of the. first three cases was; that the duties question were a part of the general governmental functions the state, ,liluch duties as the state was accustomed to provide for, and to enforce; by means ,of some officers, throughout the state, alll1. in the most retired townshipg...-"such duties as are to be perfq1'1.lled ineyery political division of the state, not for its peculiar b,nefit, but for the public"at large (per Folger, J., in Maxmilian. v.!1;l;tyor, etc., 62 Y.,1(8);and th,at when the duties are of such by the in question, "are "not laid upon the cora 11,at,ure, pqrate'b,Qdy," do not inure to its peculiar benefit, profit or adthe imposing .qf 'on individual officers, or a department, of the corporation, isnott() be construed as imposing anXnew .or liabilities upqll. corporation itself, and therefore not make the corporation legally responsible as principal.

WORKMAN 'IJ. MAYOR, ETC., OF THE CITY OF NEW YORK.

'301

On the other hand, where the nature of the work and of the duties required by the statute to be performed, are no,t of the above character, but are essentially local, in which the municipality has a special interest, as distinguished from the public at large; or where the corporation derives therefrom some emolument, profit or advantage, then the imposition of duties upon officers, or a department, of the corporation, though not expressly laid upon the corporation itself, is construed as intended to create corporate duties, to be performed by the corporation through the designated instrumentalities as the agents of the corporation. Bieling v. City of Brooklyn, 120 N. Y. 105, 106, 24 N. E. 389. Such has been held to be the nature of the duties of the street department and the park department, in the case of the public streets, the bridges, and the sewers; of the dock department, as respects the docks, and of the Croton water commissioners, on the introduction of Croton water; in all which cases, the city, on similar statutory provisions, has been held liable. See Ehrgott v. Mayor, etc., 96 N. Y. 271, and the cases there cited; Barney Dumping-Boat Co. v. Mayor, etc., 40 Fed. 50; Philadelphia & R. R. Co. v. Mayor, etc., 38 Fed. 159. Upon the numerous cases cited, and the full discussion of the general subject by Earl, J., in Ehrgott v. Mayor, etc., supra; by Folger, J., in Maxmilian v. Mayor, etc., supra; and by Mr. Justice Hunt in the case of Barnes v. District of Columbia, 91 U. S. 540, upon a statute in all respects analogous to the New York statutes prior to the act of 1882 (cited by Earl, J., with evident approval), there seems to me no doubt that the present case belongs to the latter class, and that the corporation is liable for the negligence of the fire department, not only from the local nature of the duties of that department, and the special benefits therefrom to the municipality, and the advantages to the corporation, but also from the language of the consolidation act itself (Laws 1882, c. 410, §§ 27, 34, 123, 193, 424). The court of appeals, as above mentioned, has not adjudicated this question, under the act of 1882. On the contrary, in the most recent reference to the subject that I have found, viz., in the case of Fire Department v. Atlas Steamship Co., 106 N. Y. 566, 13 N. E. 329, though that act in some of its relations was there fully considered in the opinion of Earl, J., the question was left undetermined, as immaterial in that case, "whether it [the fire department] acts independently as a distinct entity with corporate powers, within the doctrine of Maxmilian v. Mayor, etc., 62 N. Y. 160, or whether it acts as an agency of the city, representing it." Page 577, 106 N. Y., and page 333, 13 N. E. This language is of itself a sufficient answer to the respondent's contention that the exemption of the city from liability for the fire department's acts undel' the existing statute, has been already adjudged by that court. It further shows that there was present in the mind of court the language and the views presented by the same experienced judge in his opinion in Ehrgott v. Mayor, etc., supra, in which he said that Halthough this duty [to keep the streets of the city in repair in the annexed district] is to be exclusively performed by the

802

FEl)ERAL lUl:PORTER,

yolo 63.

yef:it'Jisa duty which they perform for it [the city], 'and it remaina,responsible for the condition of its streets." , The duties of the 'fire department are not, I think, within the v.MayOr, etc.; they come rather within the other class of cases, sucl!l.'as, streets, sewers, etc. Their nature stamps' :them as essentially local, and mainly of local concern, like the duties relating to the' sewers, bridges, and streets; and as being of even more distinctly local concern than the streets, which, in a 'measure, are for the use and benefit of all the people ol the state. There is' no benefit that can be affirmed to result tathe corporation from the care of the streets, that does not inure Dlore largely and more directly from the extinction of fires.' In the' case of Bates v. Inhabitants, 151 Mass. 184, 23 N. E. 1070, a state whose courts have pushed furthest the doctrine of municipal -exemption,Holmes, J., says: "The interest of towns in the sewers is so distinct from that of thepubUc at large, that they are held''With reason to the ordinary responsibilities of owners." This is manifestly equally true of the instrumentalities used, and of the .work· done, in extinguishing fires. Again, the work of the ifire department is not in the .least of a general governmental nature, enforced in some form throughout the state for the benefit ot the public'at large. The extinction of fires isnot,iandne"9'er has 'been, a state function. It has always been done either by volunteer companies, or by such special local organizations as have been formed, ,and authorized to perform this service ; else byloea1 municipalities or boards similarly authorized in particular hrcalities. Public governmental duties are such as pertain to the administration ofgenerallawsfol' the benefit and protection of the whole public. "Private or corporate powers are those which the city is authorized to execute 'for its own emolument, and from which it deprives special advantage; or for the increased comfort of its citizens; or for the well ordering and convenient regulation of particular classes of the business of its in.habitants; but are not -exercised in the discharge of those general and recognized duties which are undertaken by the government for the universal benefit." Per Shipman: J., in Hart v. Bridgeport, 13 BIatchf. 293, Fed. Cas. No. 6,149; Greenwood v. Town of Westport, 60 Fed. 571, 572. In thecase of Jewettv. New Haven, 38 Conn. 389, Chief Justice Butler says: ,

or·

"There is no mode by which to determine :whether a power or duty Is govto Inq\J.ire it is in its pll<ture, such as all wellernmental or fpr the good Of all, and one whose ordered rt,ght to req$'e, or by munic(pal agency; exercise all (:ltlzeps and whether Itha:s'e'V,er beell'll.ssmlled ot'4mposed, as such, by the government of this.state, 'and· Would, btlVEibeen e:x:er(!ised by the state, if It bad not been by these the extinguishment of tires Is not a pubby the city. lic governmelltal q,uty." . ' .

Nothing could' observations in

last citedi

to the present case, than these:

WORKMAN V· .MA YOR, ETC., Olf THE CITY OF NEW YORK.

303

The extinction .of fires is, moreover, not merely for the ben.efitof the individual owners; but for the immediate pecuniary benefit of the corporation as well, whose y.early revenues of $35,000,000, and upwards, c9me mainly from the annual taxation upon improved property-taxation that amounts on the average to about one-sixth ·of the entire annual value of the property, which is more or less directly saved to the city by the extinction of fires. Here, again, the interest and the advantage to the corporation are more special .and peculiar than in the care and preservation of the streets. The whole course of reasoning in Maxmilian v. Mayor, etc., .supra, plainly, as it seems to me, excludes the work of the fire department from the analogy of that case. The extinction and prevention of fires seem peculiarly appropriate to the localities immediately concerned. The usage and past history of fire companies attest it; so that in the absence of any indication of a contrary intent in the statute of 1882, there seems to me no doubt that the duties as to fires imposed by the act of 1882 on the fire department ·of the corporation, were designed to be made a duty of the corporation, to be performed by that department, as the agent of the city, and representing it,as intimated by Earl, J. See, also, per Bradley, J., in Bieling v. City of Brooklyn, 120 N. Y. 106, 24 N. E. 389. In this respect the case of Barnes v. District of Columbia, 91 U. S. 540, 545, 547, is precisely analogous, and its reasoning convincing. In that case every argument here adduced to exempt the city from liability, seems to me to be fully met and answered. That case has been repeatedly followed, and says Mr. Justice Harlan, in District of Columbia v. 'Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, has "never .since been questioned." See, also, per Mr. Justice Bradley, in Metropolitan R. Co. v. District of Columbia, 132 U. S. 9, 10 Sup. Ct. 19, and the learned and exhaustive opinion of Judge Townsend in Greenwood v. Town of Westport, 60 Fed. 560, 572-574. 4. Aside from the above general considerations, however, the intent of the act of 1882, to make the work of the fire department a duty of the corporation, seems clearly indicated in the very language of the consolidation act (Laws 1882, c. 410, §§ 27, 34, 424, et seq.). Section 27 of that act declares that "for all purposes, the local administration and government of the city of New York, shall continue to be in, and to be performed by the corporation aforesaid," i. e.: the mayor, aldermen, etc. Section 29 invests the board of aldermen with certain legislative powers, and section 34 provides that there shall be "the following other departments in said city," naming 11, of which the fire department is one. The powers and duties of these departments, as defined in th.e other sections of this act, are ,all "administrative and governmental i" and almost the whole field of municipal duties is distributed among these various departments. frhe different provisions of this act are to be construed harmoniously "and so as not to bring them into conflict with each other." Per Earl, J., in Fire Department of New York v. Atlas Steamship Co., 106 N. Y. 576, 13 N. E. 329. 'When section 27, therefore, declares that "for all purposes, the local administration and .government shall be performed by the corporation," it must mean

, 804

FEDERAL REPORTER,

vol. 63.

'. and governmental duty found distributed among any of the departments afterwards named in the same act, is intended to be made a corporate duty, "to be performed by the corporation." The only duties that can be excepted from the effect of this provision are such administrative and governmental duties as are not ('local;" and even if that exception can properly and consistently with the language of the act, be made to include such duties as have been previously recognized as state functions, and enforced as such by the state in onefol'ID or another throughout the state, such as the work of the departments of charities and correction, of the police, and of the board of education-duties which in that sense are not ('local"-still, it is manifest, that the work and the duties of the fire department, in the inspection and regulation of buildings in the city of New York, in order to prevent fires, as well as its work in extinguishing fires, are not, and never have been of that general nature; but that they are strictly (llocal," and that consequently by the language of section 27, the duties of the fire department are by the very terms of the act of 1882 ('laid upon the corporation," as corporate duties. The few cases as to the status of the New York fire department cited for the defendant all arose prior to. the act of 1882, and under different statutes. O'Meara v. New York, 1 Daly, 425, arose in 1862, when the fire department was a distinct cOrpQration. People v. Pinckney, 32 N. Y. 377, 389-392. The case of Woolbridge v. Mayor, etc., 49 How. Pr. 67, arose under the metropolitan fire department, also a distinct corporation. Clarissey v. Fire Department, 1 Sweeney, 224. In Terhune v. City of Rochester, 88 N. Y. 247, the case was of acts ultra vires" and decided on that ground. The Massachusetts cases are no guide here, because the doctrine of municipal responsibility there is essentially different from that of New York. The intent of the act of 1882 being sufficiently clear from its language, to make the work of the New York fire department a corporate duty, there is no occasion and no room for the application of principles of legal "construction," such as are appropriate upon ambiguous or doubtful statutes, in order to convert that department, which in itself is a mere, branch of the corporation, into an independent legal entity, acting as an agency of the state, instead of being an agency of the corporation. . The'decisions of the court of are clear and uniform, as I understand them,that as soon as it appears that the duties in question "are laid upon the city," or "rest upon the corporation," the city is answerable for negligence in performing them. So says Folger, J., in Maxmilian v. Mayor, etc., 62 N. Y. 169. To the same effect are Kennedy v. Mayor, etc., 73 N. Y. 365, 368; .Ham v. Mayor, 70 N. Y. 464; Rehberg v.' Mayor, etc., 91 N. Y. 142, 145; Ehrgott v. Mayor, etc., 96 N. Y. Bieling v. City of Brooklyn, N. Y. '98,106,24 N. E. 389; People v. State Board of Canvassers (per Earl, J.) N. Y. 368, 29 N. E. 345. For these reasons, the libelant is entitled to a decree against the mayor, aldermen, etc., and the defendant Gallagher, with costs.

CORNELLS

'I).

BHANNON.

805

OORNELLS, Judge, et at v. SHANNON et at (Circult Court of Appeals, Eighth Circuit. No. 409.
CREEK NATION-JUDGMENT-JURISDICTION OF PARTIES.

September 10, 1894.)

In a suit by the owners and mortgagees of cattle to declare void a judgment of a court of the Creek Nation imposing a fine on the owners for bringing the cattle into the Nation contrary to its law, and making it a lien on the cattle in accordance with such law, it will, on demurrer to the answer, be held that the Creek court had jurisdiction to render the judgment, the answer alleging that such court had jurisdiction of the owners of the cattle.

'Appeal from the United States Court in the Indian Territory. Suit by G orge Shannon and others against Temaye Cornells, judge, and others, to declare a judgment void. Decree for plaintiffs. Defendants appeal. Reversed. N. B. Maxey (S. S. Fears and G. B. Denison were with him on the brief), for appellants. G. W. Pasco, for appellees. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. OALDWELL, Circuit Judge. An act of the council of the Creek Nation entitled "An act establishing quarantine regulations against foreign .cattle, and to prevent smuggling cattle into the Creek Nation," approved October 29, 1891, makes it unlawful for any citizen of the Nation "to introduce or invite into the Creek Nation cattle of any kind at any time," except between the first day of January and the last day of March of each year, and declares that any citizen violating this provision of the. act "shall be fined a sum that will be the equivalent of three dollars per head for each and every head of'cattle" unlawfully introduced. The act makes the judgment a lien on the cattle unlawfully introduced, and prov1des that, if the judgment is not paid in 30 days, the cattle shall be sold to satisfy it. In a proceeding instituted in the criminal court of the Muskogee district against George Shannon and James Willison, charging them with introducing 10,000 head of cattle into the Nation in violation of this act, that court entered the following judgment:
"Judge's Office, Muskogee Nation, Wellington, 18 Aug., '92"Muskogee Nation VB. George Shannon, James Willison. "For Violating Creek Cattle Law of Oct 29, 1891. "In Case No. 111, the Muskogee Nation vs. George Shannon and James wnlison, the court orders and adjudges that the sum of thirty thousand dollars be adjudged against George Shannon and James Willison to be well and truly paid, that sum being the amount of fines, to wit: Three dollars on each of ten thousand head of cattle introduced by them into the Creek Natlon, and into the Muskogee district thereof. And it is further ordered that this jUdgment of thirty thousand dollars, by virtue of the statute made and provided, is made and become a lien upon all the cattle unlawfully introduced, of the brand [brand here given]. It is also ordered that the defendants, to wit,

v.63F.no.3-20