Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 64 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 64 of 73)
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the city and county of San Francisco. They do not purport,
upon their fa"ce, to be such, and there was no authority in
the board to make them such. The only provisions in the
whole act which bring the municipal corporation, in its cor-
porate capacity, into any relations with the opening of the
avenue are the provisions in sections i and i6 relating to its
disposition, after the work is both done and paid for, as
provided in the act — after the will of the State has been
carried out, and the purpose of the act fully accomplished.
The provision of section i is that the land described ** taken
and dedicated for an open public street," " when paid for, as
hereinafter provided, the title hereto shall vest in said city
and county for such purposes forever, as the title of other
public streets in said city and county is vested." Thus, after
opening and dedicating the avenue to public use, and paying
for it, in the manner provided, which was the task assumed
to be performed by the State, the street is donated to the
city ; and until all this is fully accomplished, the city, in its
corporate capacity, has nothing at all to do with the matter.
And then, as a consideration for opening and dedicating the
land for the avenue, procuring and vesting the title in the city
and county, section i6 imposes an obligation on the corpora-
tion to thereafter sewer, grade, sidewalk, plank, or pave the
avenue, as in the case of other streets already dedicated to
public use. The provision is, " The said Montgomery Avenue,



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LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO. 617

when opened, shall be sewered, graded, sidewalked, and
planked and paved by the municipal authorities in accordance
with the rules, regulations, statutes, and ordinances applicable
to the other public streets of the city and county of San
Francisco.

Thus the State assumes the duty and work of dedicating and
opening Montgomery Avenue, and providing for payment by
a fund assessed upon the property determined by itself to be
specially benefited by the improvement, and, when its task is
fully accomplished, turns the avenue over to the municipal
corporation, to be thereafter improved under its direction
and authority in the same manner as other public streets are
improved, in pursuance of the powers conferred on it by its
charter. And, until the avenue was thus opened, and turned
over to the municipality, the city and county, through its
legislative controlling body, or otherwise, had no corporate
control over or relation to the matter, and had nothing to do
with it.

These bonds were issued in connection with that portion of
the work assumed by and carried on exclusively by the State,
and under its direction, and with which the corporation had
no concern.

The board of public works, and other parties designated by
the Montgomery Avenue act to perform the duties therein in-
dicated, performed such duties solely by authority of that act.
The duties were not performed by virtue of any authority of
the municipal charter, or of any other act conferring power
or authority upon the municipal corporation. The consent
of the corporation was in no way obtained or asked. The
acts were solely performed in pursuance of the express direct
command of the statute itself, wholly irrespective of the will
or the charter powers of the corporation. They were not
performed in the exercise of corporate powers, and they were
in no sense corporate acts. The authorities are numerous
establishing the proposition that parties so acting by express
direction of the statute, without the authority of the municipal
corporation, and not acting by virtue of the powers conferred
on the corporation by its charter, do not act as oflBcers or
agents of the corporation, and the corporation not being the
principal, their acts are not the acts of the corporation ; they



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6l8 LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO.

are but the agencies employed by the directing power for the
accomplishment of its own purposes.

The following are some of the authorities establishing this
self-evident proposition, and it will be sufficient to cite the
cases without analyzing or commenting upon them in detail :
Sheboygan County v. Parker, 3 Wall 96 ; Horton v. Town
of Thompson, 71 N. Y. 521 ; Board of Park Commissioners z^.
Detroit, 28 Mich. 244-5 ; People, etc., v. Chicago, 51 111. 17;
Hoagloud V. Sacramento, 52 Cal. 149; Tone v. Mayor, 70
N. Y. 165 ; N. Y. & B. S. M. & L. Co. v. Brooklyn, 71 N. Y.
584. In Horton v. Town of Thompson, supra^ the court said :
" In the present case no action on the part of the town in its
corporate capacity, or on the part of any of its officers, was
required by the act, or was taken. The money was to be
borrowed and the bonds issued by commissioners to be ap-
pointed in the manner prescribed by the law. These commis-
sioners were in no sense town officers, nor did they represent
the town." P. 521.

The strongest case cited in opposition to the views expressed,
and to support the position that the opening of Montgomery
Avenue was a municipal and not a State undertaking for
which the municipal corporation is liable, is that of Sage v.
City of Brooklyn, 89 N. Y. 189. But there were several
clauses in the statute involved in that case, upon which the
court relied, and rested its decision, that are wholly wanting
in the Montgomery Avenue case. "Thus," says the chief
justice, who delivered the opinion of the majority of the court,
"by the third section it is declared that the lands 'shall be
deemed to. have been taken by the city of Brooklyn for public
use.' " Id. 197. " That the improvement of Sackett Street
was regarded by the legislature of the State as a city and not
a State improvement, also plainly appears from the supplemen-
tary act, chapter 592, Laws of 1873. The park commissioners
were, by that act, authorized and directed to improve Sackett
Street by grading, paving, planting shade-trees, constructing
carriage-ways, etc.; and by the fourth section the city was
required to issue its bonds for the purpose of raising money
to pay the expenses of the improvement, and the money col-
lected on assessments was directed to be paid to the commis-
sioners of the sinking fund, for the redemption of the bonds."
Id. 198. Thus, by the express terms of the statute, the land



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LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO. 619

was " deemed to be taken by the city," and the city was ex-
pressly made primarily liable, and required to issue its own
bonds, and reimburse itself from assessments on the property
benefited. There is nothing of this kind in the Montgomery
Avenue act, and nothing even looking in that direction. So^
also, referring to section 16, of another act, as applicable,
the chief justice says : '* The direction of section 16, that
the comptroller shall pay the land damages, is absolute and
unqualified. It is not a direction to pay them out of the
assessments when collected, or out of any particular fund."
Id. 199. Again : " The city, under that atatute (supplemental
act of 1873), was required, primarily, to advance the necessary
fund. The provision in the act of 1873 furnishes a strong in-
ference, in favor of the claim, that the legislature, by incor-
porating section 16 of the charter into the act of 1868, intended
to impose upon the city the duty, either primary or ultimatet
of paying the landowners." Id. 200. On these, and other
similar provisions, the decision was rested. Yet, in the face
of these strong provisions of the statutes, showing that the
acts in question were intended to be municipal, and not State
acts, and expressly imposing the liability on the city, those
two able judges, of long service and ripe experience. Earl
and Rapallo, dissented, in a clear and cogent opinion, and
held the work to be a State and not a municipal work, for
which the corporation was not liable. Said Mr. Justice Earl
in the case : " The land was taken and appropriated by the
direct act of the legislature, and, by the same act, the park
commissioners were appointed to enter upon the land and
make the improvement. They were not agents of the city>
but State agents. They were not officers of the city, and, in
what they did, they did not represent the city, and had no
authority in any way to bind it, and could in no way make it
responsible for these awards. They had the precise author-
ity conferred upon them by the act, and no other ; and the
liability of the city for their acts, or for the land taken or
awards made, is not so much as hinted at by the act."

" For the position that the park commissioners were not
agents of the city for whose acts the city could be made re-
sponsible, the cases of Maxmilian v. The Mayor, 62 N. Y.
160; Tone V. The Mayor, 70 Id. 157; and New York and



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620 LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO.

Brooklyn Sawmill and Lumber Co. v. The City of Brookljrn,
71 Id. 580, are abundant authority. The general rule, as de-
duced from these cases, is that a municipality is not liable for
the acts or omissions of an oflScer in respect to a duty spe-
cifically imposed upon him which is not connected with his
duties as agent of the corporation, and that such a corpora-
tion is only liable for the acts or omissions of officers in the
performance of duties imposed upon the principal." — Id.,
204.

But, conceding the case to be well decided, the court, in
its decision, rested upon express provisions of the statute
making the city of Brooklyn responsible, and the case now
in hand is entirely different. There is no such provision in
the Montgomery Avenue act. That act is, absolutely, barren
of any such or similar provisions.

The other cases apparently most confidently relied on to
show the liability of the city are Jordan v. Cass County, 3
Dill. 185, and Davenport v. County of Dodge, 105 U. S. 238.
The bonds in the former case were issued by the county
in the name of the county, by express direction of the stat-
ute. In the latter case the bonds were issued by the county
commissioners, the governing body of the county, in pursu-
ance of an express provision of the statute, for a precinct in-
debtedness. It was held by the supreme court, following the
construction adopted by the supreme court of Nebraska,
that the county was liable upon the bonds, under the statute
authorizing the issue of county bonds, for the precinct in-
debtedness, but it was held that the indebtedness was to be
satisfied out of funds collected from the precinct. In Meath
V, Phillips County, 108 U. S. 555, the supreme court, refer-
ring to this case and the case of Cass County "o. Johnson,
said : " In the case of Cass County, the law provided in terms
for an issue of bonds in the name of the county ; and in that
of the county of Davenport we construed the law to be, in
effect, the same. Consequently there were, in those cases,
obligations of counties, payable out of special funds." These
cases are, therefore, entirely different from the case under
consideration. On the contrary, the case of Meath v. Phillips
County just cited is decisive in favor of the proposition
maintained in this opinion — that where the State, or some
other district or organization, employs certain officers, desig-



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LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO. 62 1

nated by their official names, of a city or county, in pursu^
ance of the statute, as agents or instrumentalities for accom-
plishing their own proper purposes, such officers, in per-
forming the acts thus required, do not act as officers or agents
of such city or county, but as agents or instrumentalities of
the State, or other district or organization for which the ser-
vices required by the statutes are performed. 108 U. S. 554-5.

It is clear to my mind, both upon principle and authority,
that the city and county of San Francisco is not, in sub-
stance or in form, an obligor on, or party in any fE^ci^ohI^
sense to, the bonds and coupons sued on ; that un- Soxd^'^*^ °*
der the Montgomery Avenue act it could not have been le-
gally made an obligor on, or party to, the bonds issued in
pursuance of the act ; and that, in its corporate capacity, it
has no relation to those bonds, and no duties to perform in
connection therewith. The duties to be performed, what-
ever they may be, in connection with the bonds and coupons
in suit, by parties who are also officers of the city and county
of San Francisco, are, in my judgment, to be performed by
them, under the provisions of the statute, as agencies or in-
strumentalities of the State, and not as agents or officers of
the city. It follows, necessarily, that the city and county of
San Francisco, in its corporate character, is in no respect
chargeable with any liability of any kind upon the instru-
ments sued on.

There being no liability of any kind, and no duty to per-
form by the municipality, in its corporate capacity, in relation
to said instruments, no action or judgment can be rendered
in the case that could avail anything as a foundation for pro-
ceeding by mandamus to compel the assessment and collec-
tion of a fund for the payment of the coupons and ultimate
redemption of the obligations in question. For that, or any
other purpose looking to the collection of the money claimed
to>be due, the action might just as properly be brought
against the city of Oakland as against the city and county
of San Francisco.

The property-holders of the district liable to be assessed,
under the Montgomery Avenue act, with respect to their
lands and the indebtedness in question do not, juDamifr
under the act, stand in any respect in privity with to^^SSdwo^
the corporation, the city and county of San Fran-



PBOFEBTT-HOLD



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622 LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO.

CISCO ; and, in relation to the instruments in suit, the munici-
pality does not represent either the owners or the lands.
Any judgment against the city in this action could not bind
or conclude the owners or their property, neither being in
any sense parties, or privies to parties, to the suit The judg-
ment, under such circumstances, could not afford anyvahd
or legal foundation for proceedings by mandamus against the
parties charged with the duty of assessing and collecting the
Montgomery Avenue bond tax ; for in that capacity they are
not officers, agents, or instrumentalities of the municipal cor-
poration, and they are not in privity with it. A mandamus
in the national courts is in the nature of process to execute a
valid judgment ; and it must be against the judgment debtor
or obligor, or some one representing the judgment debtor or
obligor. A proceeding by mandamus against the parties
charged with assessing and collecting the tax in question,
based upon a judgment in this case, would be very much like
proceeding by an execution against B to satisfy a judgment
against A, between whom there is no legal relation whatever
affected by or affecting the judgment

If the views expressed are sound, the complaint presents no
cause of action against defendant, and the facts alleged and
offered to be proved are wholly immaterial.

It would be but a waste of time to occupy the attention of
the court in taking testimony which cannot prove or tend to
prove any valid cause of action. The complaint is wholly in-
sufficient and the pleadings present no material issue. For
the reasons stated in this opinion and in the opinion of the
presiding justice, in which I concur, the objection to the in-
troduction of the evidence offered must be sustained.

When Public Agencies appointed to Exercise Public Duties
within the llmit§ of a municipality are not agencies of the
Municipality. — In the principal case it was held that the board of pub-
lic works for the opening of Montgomery avenue was a separate a^ncy
created by the State to act for the State independently of the municipal
corporation of the city and county of San Francisco. The opening of the
avenue in question being clearly an appropriate exercise of the powers of
the sovereignty, the State had the right and power to employ either the
agency of the municipal corporation in opening the street, or it could
establish an independent special agency for that purpose. It does not,
however, follow that because a special agency has been created by statute
to exercise some public function or duty, that such special agency is the



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LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO. 623

independent agency of the State. It may well happen that the State may
create the agency to exercise the public function or duty as the agency of
the municipal corporation ; and whether such agency is to be regarded
as the agency of the State or that of the municipal corporation is often
one of great difficulty. In the case of Maxilian v. Mayor, etc., of the City
of New York, 62 N. Y. 160, it was held that the Commissioners of Public
Charities and Correction, a body created by statute and vested with the
control, management, and direction, over all real and personal property of
the alms-house, etc., with power of appointment and removal of inferior
officers, and to require of the supervisors of the county the levy by tax of
such moneys as should be needed by them, and of control of the poor, etc.,
was an agency of the State and not of the municipal corporation, though
it exercised its jurisdiction wholly within the limits of the corporation,
and though the commissioners were appointed by the mayor. The deci-
sion was based on the fact that the functions exercised by the board were
not exercised for the benefit or mterest of the municipal corporation as
such, and that said functions were purely governmental in their character.

In Tone v. Mayor, etc., of the city of New York, 70 N. Y., 157, a board
created by statute to revise and correct assessment lists in the city of New
York, and composed of the comptroller, counsel to the corporation, and
recorder of said city, was said not to be an agency of the municipal cor-
poration. The court say : " In the discharge of their duties, the members
of that board acted as independent public officers, engaged in the public
service. They were not selected by the corporation, and it could not con-
trol their acts. Their powers were clearly defined by the legislature, and
were not what might properly be called corporate powers, and they were
not to be exercised for the peculiar benefit of the corporation in its local
or special interest, but for the public good, in obedience to the mandate of
the legislature."

In New York and Brooklyn Saw-mill and Lumber Company v. City of
Brooklyn, a statute entitled ** An act to provide for the assessment and
collection of the costs of the improvement of the Gowanus canal in
the city of Brooklyn, and for the reconstruction of the docks in the said
improvement which have become sunk and unfit for use," it was provided
that the common council of the city of Brooklyn should cause to be re-
paired or rebuilt, at the expense of the city, the docks constructed by the
commissioners, where the same had sunk and become unfit for use. The
plaintiff claimed that by reason of this act it became the duty of the city
of Brooklyn to rebuild the docks on his land which had sunk, and sued
the pity for omitting to do so. It was held that the common council acted,
in regard to the rebuilding of the sunken docks, as the agent of the State
and not as that of the corporation of Brooklyn, and, consequently, that
the city was not liable for their omission to rebuild the docks. The fact
that the repairs were to be made at the expense of the city of Brooklyn
was deemed immaterial. New York and Brooklyn Saw-mill and Lumber
Company v. City of Brooklyn, 71 N. Y. 580.

In Meath v, Phillips County, 108 U. S. 553, an act of a State legislature
was passed to provide for the reclaiming of overflowed lands by the con-



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624 LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO.

struct ion of levees, and for this purpose such lands were divided into levee
districts, and levee inspectors were appointed. Provision was made for the
taxation of lands to be benefited, said tax to be collected in the same
manner as county taxes. Payment of expenses of the work was to be
made by means of drafts drawn by the levee inspectors on the levee
treasurer. It was held that the levee inspectors were not agents of the
county, and that the county was therefore not liable on drafts drawn by
the levee inspectors.

In the case of Sage v. City of Brooklyn, S9 N. Y. 189, the commissioners
of Prospect Park were directed by statute to open, g^^de, and improve
Sackett Street, and to apply in court, on notice given to the city counsel,
for the appointment of commissioners to estimate the expense of the im-
provement and to assess the same upon a district to be fixed by the park
commissioners. The State took the lands required for widening Sackett
Street, by direct legislative enactment, gave the park commissioners the
initiation of proceedings for opening the street, and gave them the control
of the street when completed. The majority of the court held that the
improvement in question was a municipal as distinguished from a State
improvement, that the park commissioners acted as agents of the city and
not as agents of the State direct. The following extract from the opinion
of the court will show the line of reasoning adopted by the majority : "A
municipal corporation is the creature of the State, deriving its public facul- '
ties and political powers from the legislature. The legislature may, in
place of remitting the question to the discretion of the city authorities,
prescribe what local improvements shall be made, and create special agen-
cies for their execution. It is not required to commit their execution to
the ordinary representatives of the municipal body; and it may charge the
expense of such improvement upon the locality. It does not, therefore,
go far towards establishing the claim that a street improvement within a
city is a State and not a municipal work, to show that it was directed by
the legislature, and that its execution was committed to special agents
appoiifted by the legislative act. In the case of Sackett street, the im-
provement was not one in which the State at large was specially interested,
nor did the State assume the burden of the expense. The people at large
were interested in the same sense and no other, in which they are inter-
ested in the opening of every highway within the State. But the improve-
ment was peculiarly for the local convenience and advantage of the city of
Brooklyn. When the act of 1868 was passed (providing for the improve-
ment in question) Sackett Street was designated on the commissioners*
map of the city as one of the city streets. The improvemeat to be made
was limited territorially to the city. The unusual width of the proposed
avenue was fixed, as may be inferred, not because the accommodation of
public travel required so wide a street, but because it was supposed that a
wide avenue, set with trees and otherwise improved, would enhance the
beauty and attractiveness of the city, and promote the pleasure and com-
fort of its citizens. The improvement was, as we have said, a part of the
park system, and it was with great propriety placed under the control of
the park commissioners."



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LIEBMAN V. CITY AND COUNTY OF SAN FRANCISCO. 625

The State may Empower a Municipal Corporation to act as
ITS Special Agent in the Exercise of a Special Public Duty
OR Function. — Where the State wishes to exercise some public function,
or perform some act of sovereignty through a special agency, it may, in-
stead of appointing or creating a special agency for the purpose, employ
as its agent a municipal corporation already in existence. In such a case,
if the State by statute provides for a liability on the part of such agent,
contractual or otherwise, this liability will not be a municipal liability.
Thus in Jordan v. Cass County, 3 Dill. (U. S. C. Ct.) 185, it was held that
a statute relating to the furnishing of aid by townships to the building gf
railroads, which provided for the holding of a township election to decide
whether such aid should be furnished or not, and, in case it was voted to
furnish the aid, provided that the county court should make the subscrip-
tion voted in behalf of the township, and, if so voted, should issue in pay-
ment of such subscriptions bonds in the name of the county, created the



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 64 of 73)