Full opinion text
FISHER, Chief Justice.— Opimos. — Appellant sued the city of New Braunfels in damages, for the value of a certain building and its contents, the property of appellant, which the petition avers was destroyed by fire without the fault or negligence of appellant, and was so destroyed by reason of the negligence and want of care of appellee in this: that at the time of the fire, and before, the city was the owner of, and actually operating, a system of water-works, and that said works were erected by means of taxation of the property situated in said city, and that the city charged its inhabitants tolls and rates for the use of water from said system and was thereby maintained, and that the city was then operating said works and supplying water as a business for its gain and advantage, and that the appellant was a patron of said works, paying the usual and customary rates, and was a taxpayer of said city. That the city by reason of these facts assumed the duty and became bound to supply its public hydrants and those controlled and owned by appellant and other patrons of the system for the general purpose for which water is used and for the extinguishment of fires. That there was located and convenient to the property destroyed public hydrants used by said city for extinguishing fires and also private hydrants of appellant which connected with said water system. That at the time of the fire the city negligently permitted the water to get so low in the stand-pipe that sufficient pressure was not furnished to throw the water upon the burning building from the hydrants aforesaid, and that the city negligently permitted its water-works to get out of repair and so remain, and that but for the negligence as stated, water could and would have been used through the hydrants and the fire extinguished and as a consequence the property saved. It is also alleged that the city was incorporated under the general laws of this State relating to the incorporation of cities of over one thousand inhabitants. From the averments as a whole the inference is permissible that if the water had been supplied through the hydrants, those in use by the city as well as those in the control of appellant, that he would and could have used and operated them by means at his control and thereby extinguished the fire. This in effect is about the case made by the petition, and it is possible that it is somewhat vague and indefinite and not full enough in some respects; but the demurrers were not, it seems, sustained for these reasons, but were sustained, as we are led to believe from the manner in which the case is here treated, upon the ground that a city would not be liable under the circumstances stated. It is from the ruling of the court in sustaining the demurrers that this appeal is prosecuted. A city or town incorporated under the general laws of this State voluntarily assumes its incorporated and municipal status. And its powers and privileges with reference to supplying the city and its inhabitants with water are authorized by article 374, Sayles’ Civil Statutes, and such rights and privileges and responsibilities when assumed are voluntary, as the law does not require the city as a public duty to furnish water. There are similar statutes authorizing the city to construct streets, sidewalks, sewers, drains, bridges and to furnish lights, markets, hospitals, work houses, etc. In the matter of streets and highways and of some other named public property, the city is given exclusive control and is empowered to keep in repair and proper condition. The statute concerning the supply of water does not give the city exclusive authority to so furnish and supply the city with water. It says that the city may furnish water or cause it to be provided for the extinguishment of fires and for the convenience of the inhabitants. The question to be decided is, can a city so voluntarily incorporated as appellee, which for its advantage and gain has voluntarily assumed the duty of supplying its inhabitants water for general purposes and for the extinguishment of fires, be held liable to the injured party, who is a patron of the works, for its negligence in operating its works whereby a failure to supply water resulted and thereby caused the damages complained of, when by a system of works, supposed to be adequate and in actual operation, the duty could have been and would have been performed but for the negligence complained of. At the outset it may be said that where it has been sought to hold municipal corporations liable for a failure to furnish water, or the negligent operation of its waterworks or appliances for the extinguishment of fires, or for the failure of those charged with such service to perform it with care and whereby property has been destroyed by fire, the great majority of cases upon the subject have denied liability. These cases deny liability upon several grounds; some hold that supplying the city with water is purely a public governmental duty; and in some, where the liability was sought for the negligence of the fire department in operating the apparatus or of the works, it was denied for the reason that those so charged with the negligence were officers of the city and therefore the doctrine of respondeat superior did not apply. Others are based upon the proposition that furnishing and supplying water is an act legislative in character and a matter of discretion with the city, therefore it cannot be coerced in this respect and no action lies for the failure to perform this service. And there is a further reason stated in nearly if not all of these cases, which is more in the nature of an apology than the statement of a principle of law, and this is to the effect that to admit liability would be to cause serious financial embarrassment to incorporated cities and towns, and thereby impair their efficiency to perform the functions of municipal governments. Municipal liability for negligence or want of care has been denied in many other instances when the complaint was based upon negligence in the conduct of other municipal affairs, and in addition to the reasons stated others have been given. In a few jurisdictions liability has been denied for the reason that it does not exist except by an express statute to that effect. Some few cases draw a distinction between a positive act of negligence committed which may cause injury to another, and the passive conduct of the corporation in the nature of an act omitted which in a negative way may result in harm. In the former the municipal government is held liable, in the latter not liable. There are instances in which liability was denied upon the ground that the city was exercising the particular function from which the negligence arose under a general statute that applied alike to all cities, and not a special charter or grant of power applicable to that particular locality. But however numerous the reasons may be that have been given for denying municipal liability, those courts that have denied it in cases like the present, as well as the great majority of the courts of the States of the Union and of the United States, together with a number of cases in England, admit that municipal corporations are liable for the negligence in the conduct of a corporate business that concerns the municipality locally, and especially so when they are engaged in it for gain and advantage, although the public is served in its performance, which is not strictly of a public governmental character and which does not involve the exercise of a legislative discretion. And in this view, with some other reasons that have induced them to hold, these courts have steadily held that for negligence in the control and management of its streets, sewers, gas-works, electric plants, bridges, docks, piers and other public works used by the cities in their corporate capacity, they were liable; and have denied the rule that exists in some few States that liability exists only when fixed by statute, and place the liability upon the principles of the common law. City of Greensborough v. McGibbony, 20 S. E. Rep., 38; Barnes v. Dist. Columbia, 91 U. S., 551; Galveston v. Posnainsky, 62 Texas, 133. It must be admitted that if the negligence arises out of the exercise of functions purely of a public, governmental nature, or is based upon acts or conduct which is legislative in character and which the city may or may not exercise as its discretion may direct, or involves the act or conduct of an officer in the discharge of an official duty, as contradistinguished to an act of the agent or employe of the city in relation to its municipal affairs, then the city will not be held liable. And in ascertaining, in the present case, whether the city is or not liable, we must necessarily determine whether the act or conduct complained of falls within either of the principles stated, and whether any of the other reasons stated for not holding cities and towns liable are applicable to the present case, or are rules to be observed in this and other cases of a like nature why a city should not be held responsible. This brings us properly to a consideration of the question whether the operation of the water-works in question was of a public governmental nature, or was the operation of a work in behalf of the city and its inhabitants for the business and local benefit of the city in its corporate capacity. In view of the doctrine admitted and the principles discussed and decided in the authorities hereafter stated, we are clearly of the opinion that the works in question fall within the latter class. If municipal liability is admitted, which undoubtedly it is in cases of damages sustained by reason of negligence in the control and management of streets, sewers, drains, docks, bridges, gas and electric works, and other corporate property used for the local advantage of the city, what reasoning upon principle may be advanced that will distinguish these cases-which so establish liability upon principles of common law, from the case at bar? The same reasons that are given for establishing liability in those instances equally apply in this case, and what real difference is there between works of that nature and a water system voluntarily operated by the city for its gain and advantage. The general public or the" government has not the same interest in the operation and management of a water system, which is only local in the benefits to be derived from its operation, as they have in the control and operation of the streets and bridges, and docks and waterways under the control of the city. In these latter instances the general public, in the furtherance of commerce- and a use by the traveling public, have a direct interest to the extent that such property should be kept in safe condition, so that it may be-used in the manner in which such property was intended, while upon the other hand only the city locally and its inhabitants are interested in the operation of a water system. What special privilege or prerogative-of sovereignty is there in the operation of a water plant, and what special governmental public purpose is to be accomplished in the operation of such works? The statute law does not require the city to operate such works for the public good, but the duties and functions they perform are assumed voluntarily, not as a necessary public arm of the city government, but more nearly than otherwise to subserve a corporate and local purpose. The functions that such- works perform are not an attribute-of sovereignty nor do they arise because the service they render is purely of a public governmental character. For the same service may be rendered to the public and the city and its inhabitants by individuals and. private corporations. It is true that some of the uses and benefits which arise from such works in part aid in preserving the health of the-inhabitants of the city by furnishing in part a means to preserve proper-sanitary conditions and in preventing the destruction of property by fire, but this benefit and use is simply one of the many incidents that arise from the general service, as it is a well known fact that in towns of the class and population of appellee there are generally wanting sewer systems and drains by which the water may be used for public sanitary purposes, and that the principal benefit to be derived from such works is to the inhabitants locally and individually and to the profit and advantage of the city in its business and corporate capacity. It is not enough to say that because the city by its water system serves the public it is a public governmental function, for if such was the case every work or service engaged in or carried on by a municipal corporation could be called a part of its general governmental machinery, for all the property held and used by cities is more or less for public purposes. The fact that the public receives a benefit from the operation and use of such property is not a criterion to determine its character and liability, for if such was the case railways and other public enterprises of that, character, which in their relation to the public are more nearly asso■ciated with the general welfare of the public than are water systems of many of the towns and cities, could be classed solely as public enterprises. But the public service they render and their duty and relation to the general public in the conduct of their business has never been urged as a defense to their liability for negligence. Judge Dillon, section 27, page 46, volume 1, of his work on municipal corporations, in speaking of whether the powers exercised are of a public nature, says: “Thus, for example, a city may be expressly authorized in its discretion to erect a public wharf and charge tolls for its use, or to supply its citizens with water and gas, charging them therefor and making a profit thereby. In a sense such powers are public in their nature because conferred for the public advantage. In another sense they may be considered private, because they are such as may be, and often are, conferred upon individuals and private corporations and result in a special advantage or benefit tó the municipality as distinct from the public at large. In this limited sense, and as forming a basis for the implied civil liability for damages caused by the negligent execution of such powers, it may be said that a municipality has a private as well as a public character.” By referring to the reasons given in the many cases subsequently noticed there is no substantial difference between the operation of a system of water-works, and streets and sewers and other like Avorks, and if it is true, as there repeatedly held, that cities are liable for negligence in the operation of such works and the management of such ¡property, the same rule of liability should exist for negligence in operating its water-works. The benefits and the purposes to be accomplished in the operation of these works are no more advantageous and useful to the public and the government than is the case in the operation of streets, sewers, docks, etc. Under the averments of the petition there is an aspect of the case when considered clearly, in our opinion, takes the operation of these works out of the realm of governmental functions. It is alleged that the city was operating these works for its profit and advantage and that the appellant was a patron of it for hire and that the city owed him the duty to furnish water, etc. It follows from this that while the city may have been serving the public, it was doing so voluntarily, in a matter and in a way that was locally confined to the inhabitants of the town for their advantage and for the money to the corporation there was to be had in the performance of this service. It is admitted, with only a few exceptions, that a municipal corporation that engages in a business for its gain and advantage, although the public are served in its performance, will be held liable as an individual for its actionable negligence in the conduct of its business. This is even admitted in those courts that adopt the extreme rule of the limited liability of municipal corporations. There can be.no question under the averments but that these works are a business concern carried on by the city. It is as much so as any work or enterprise that a city may engage in. The same elements exist, the same service is performed, the same duties are required, and the same benefits result in the operation of these works, as is the case where similar works are owned, operated and conducted by individuals, and private corporations. The reasons employed and facts considered in order to determine in these latter instances if such an enterprise was a business concern, in the main, apply and govern in ascertaining if a like enterprise conducted by the city is a corporate business concern. “The liability of the corporation for its negligence, or that of its servants, is especially clear, and in fact indisputable, where it has received a consideration for the duty to be performed, or where, under permissive authority from the Legislature, it voluntarily assumes and carries on a work or undertaking from which it receives or derives a profit.” 2 Dillon, Munic. Corp. (4th ed.), sec. 981 and notes. The question next in order to be considered is whether, under the averments of the petition, the operation of the water-works was a legislative function and a discretionary matter with the city. It is well settled that if the conduct of a business out of which the alleged negligence arises is a matter legislative in character, and about which the city may exercise a discretion, it will not be held liable, and the courts have no power to control them in such matters, but this rule is subject to-the qualification that if the act passes beyond the discretionary and legislative stage, and the city actually engages in the business with no purpose to abandon it, the performance of the service and duties assumed becomes ministerial to the extent of the exercise of ordinary care, in the execution of such work, to those to whom they are owing this duty. The city could not have been held liable for failure to construct and operate the water-works in question, nor can it be controlled in the exercise of its privilege to abandon such works if it sees proper to do so. But such is not the case here, for the averments are to the effect that the city is actually operating its works, and by its negligence failed to perform a duty that it owed to appellant in the performance of the service that it was then engaged in. The duty of the city in this respect ought to be held ministerial. The failure to furnish the water was not from the bona fide exercise of the privilege to abandon the operation of the works, but arose from its negligence when engaged in their present and actual operation. If the city originally constructed and subsequently intended to operate an adequate system of water-works, capable, by the exercise of ordinary care, to furnish a supply of water reasonably adequate to the extinguishment of fires that may occur in that locality, it rested under the duty it had assumed to its patrons that it would exercise ordinary care in the performance of this service, and would not, by its negligence in operation, defeat the purposes intended to be accomplished by a use of the works. “The doctrine may be considered as established, where a given duty is a corporate one, that is, one which rests upon the municipality in respect of its .special or local interests, and not as a public agency, and is absolute and perfect, and not discretionary or judicial in its nature, and is one owing to the plaintiff, or in the performance of which he is specially interested, that the corporation is liable in a civil action for the damages resulting to individuals by its neglect to perform the duty, or for the want of proper care or want of reasonable skill of its officers or servants acting under its direction or authority in the execution of such a duty; and, with the qualifications stated, it is liable, on the same principles and to the same extent, as an individual or private corporation would be under like circumstances. For illustration, if a city neglects its ministerial duty to cause its sewers to be kept free from obstructions, to the injury of a person who has an interest in the performance of that duty, it is liable, as we shall see, to an action for the damages thereby occasioned. So, if a city owns a wharf or pier and receives wharfage or profit therefrom, it is liable, like an individual or private corporation, for injuries caused by a failure to keep it in proper condition- and repair. & in respect-to its failure to keep its streets in a safe condition for public use, where this is a duty resting upon it. The liability of the corporation for its own negligence, or that of its servants, is especially clear and in fact indisputable, where it has received a consideration for the duty to be performed, or where, under permissive authority from the Legislature, it voluntarily assumes and carries on a work or undertaking from which it receives tolls or derives a profit.” This is the language of Judge Dillon upon the subject, in his second volume, section 980, on Municipal Corporations. In determining the duty and liability of corporations that undertake to perform service of this character to those who are for a valuable consideration its patrons, the only reasonable rule is that, by reason of the duties assumed by the corporation which it has undertaken to perform to the individual and the public, they have the right to demand that in the exercise of these functions reasonable care and diligence be observed and that the corporation shall not be guilty of negligence that will defeat the performance of this duty. The situation of the parties and their relation to each other clearly raises an implied obligation to this extent, and a contract insults between the corporation and water rent payer that such duty will be observed. The same rules of measuring the duties and responsibilities that exist in other cases where parties impliedly or expressly rest under obligations to perform duties to others, should govern in this case. Intimately connected with this feature of the case is the discussion of the question whether the negligence for which the municipal corporation will be liable is limited to acts committed which endanger the rights of persons or property of another, or whether it will, in addition, be held liable for the omission or failure to perform an act when confessedly the duty rests upon it to do so and from its failure in this respect injury results. It seems to us the statement of the question is an answer to it, and that those cases that draw a distinction between negligence committed and that that arises by reason of failure to performs duty are not supported by reason. In the conduct and operation of a work or enterprise, the omission or failure to do an act that is imposed by duty often embraces the elements of an act committed. Take the case here, for instance: the city permitted the works to get out of order, and permitted the water in the stand-pipe to get so low as to not afford a pressure. The acts committed were in permitting the water to get low and in permitting the works to get out of repair; the acts omitted were the failure to repair the works and raise the water in the standpipe in order that its use would be serviceable. So, in this case, it may be said the negligence embraces both elements and grows out of both affirmative and negative conduct. But, to get back to the question, we clearly think there should be no distinction and that liability exists as well when the negligence arises from failure or omission to perform a duty as when the injury is traceable to some positive act or wrong which immediately occasions damages. Take the relation of parties in their business affairs: When one undertakes the performance of a service for the other he rests as much under the implied duty that he shall perform the service in the way useful and intended and that he will repair and correct the situation that his fault has occasioned, as well as he is held liable if in the conduct of the business he is guilty of some positive act of negligence from which injury results. In either event the consequence to the injured-party is the same, and in both instances it is the fault of the other that occasions the damages. “Negligence is the absence of proper care, caution and diligence, — or of such care, caution and diligence as, under the circumstances, reasonable and ordinary prudence would require to be exercised. It may consist as well in not doing the thing which ought to be done as in doing that which ought not to be done, when in either case it has caused loss or damages to another.” This definition is given in a case in which it was held that the city was •liable for failing to repair a defective gas-pipe under the control of the city, by which an explosion resulted and caused damages. Kibele v. City of Philadelphia, 105 Pa. St., 44. We may next consider the question whether liability in this case may be denied upon the universally admitted ground that the city will not be held liable for the conduct of its public officers. Shanewerk v. City of Fort Worth, 32 S. W. Rep., 918, and cases there cited. This doctrine cannot be applied to this case. The petition does not complain of the conduct of an officer of the city, but charges the city directly with negligence in the conduct of a business that does not necessarily have to be performed by a public officer, but may be in the charge of an employe or servant of the corporation. No complaint here is made as to the negligence of the fire department of the city or those engaged in the public service of extinguishing fires; and if such was the case a different ruling might be made, for it is properly held by the weight of authority that those engaged by the city to perform that duty are its officers, for whose conduct it would not be liable. Shanewerk v. City of Fort Worth, supra. The petition alleges that public hydrants were located in the street in reaching distance of plaintiff’s property and that plaintiff had in operation private hydrants on his premises which, if supplied with water by sufficient pressure, could and would have been used in extinguishing the fire. There is no complaint that the city did not furnish the apparatus and force of firemen to use it so that the fire could have been prevented or extinguished, but the complaint is in the failure to furnish water, and the inference is clear from the averments that if this had been done the appellant would and could have operated the hydrants and used the water by means under his control and thereby have prevented the loss. Does the fact that the city in question was incorporated under a general law that applies alike to all cities of the class to which it belongs, relieve it of liability? The doctrine is established in the well considered case of City of Galveston v. Posnainsky, 62 Texas, 119, that a city acting under a special charter as a municipal corporation and voluntarily assuming its corporate status as well as undertaking to perform certain corporate duties and functions is liable to those who are injured by its negligence to perform the duties assumed. This case is full upon this subject and later on will be stated at length. The principles decided in this case, when considered in connection with the later case of Baugus v. City of Atlanta, 74 Texas, 630, settle the question as to the liability of cities incorporated under the general laws. In this last case it is said: “It is not seen, however, why a city or town which incorporates under the general laws of this State, through the voluntary act of its inhabitants, for the benefit of the particular locality and its residents, should not be held responsible for an injury inflicted under circumstances which would fix liability on a city or town incorporated by a special act of the Legislature clothed with same powers and charged with same duties. In the one case as in the other the charter, is special and, in either case, in fact or presumably, obtained through the request or voluntary act of those who seek benefit through the execution of the powers conferred. If there be any difference it is not in favor of such cities and towns as by the voluntary act of their inhabitants incorporated under the general law, for, as to them, there is wanting the element of compulsory incorporation, and their inhabitants must be presumed to have weighed the local benefit to be obtained by incorporation before they asked that the powers be conferred upon them which fix the corresponding duty carefully to exercise them.” The principle announced in this case, together- with those discussed and approved in Galveston v. Posnainsky, supra, upon this question, as well as the other questions there noticed, are in the main applicable to the prominent features of this case, and in our opinion are authority for holding the city liable here. The effect of these two cases is that the duty resting upon a city operating under the general law to keep its streets in repair is ministerial and that such duty, being voluntarily assumed, relates to a matter corporate and local in character and is not the exercise strictly of a public governmental function, and ‘ ‘that when such a corporation accepts a charter giving defined powers the law imposes the duty of faithfully exercising them and gives an action for misfeasance or neglect in this respect to any person who may be injured by such failure of duty.” Klein v. Dallas, 71 Texas, 284. In response to the reason for non-liability of cities and towns in cases of this character given in most of the decisions that deny it, to the effect that it will create against such municipal corporations liabilities greater than they should bear, much might be said, and the same reason could as consistently be given in a number of other instances to. deny liability in cases where it is now admitted by all courts to exist. Admitting liability against railways and other quasi public corporations in the great number of instances in which liability exists has proved disastrous to many of those bodies and has forced them into the hands of receivers, but it has never been urged that this misfortune absolves them from responsibility. If such a reason would hold good in one class of cases why not urge it in all? If it is a good defense against municipal liability for negligence in the management of its water system that to-admit it would burden the city with a liability, why, upon principle, should not the same defense be available in bar to liability for its negligence in the control of its streets and other property, for which nearly all the courts admit liability. Damages arising from these causes may impose upon some towns and cities financial burdens as disastrous to-the municipality as fires would occasion to other cities. “The old argument that to admit liability would give rise to a multiplicity of suits is of trifling value. If there is a multiplicity of wrongs-there should be a multiplicity of suits, and one and the same principle applies to allowing an action for any wrong. So then, the argument that it inconveniences the public to allow the action is of little force. The public does not feel the inconvenience, if it exists, and the individual who has suffered the loss can ordinarily less afford to bear it than the public. And without sufficient reason no individual should be deprived of bis right that others must exercise reasonable care in all their actions so far as they affect him. This fundamental right requires that municipalities should respond in damages when they negligently injure individuals.” Jones, Neg. Mimic. Corp. sec. 58, page 112. Other reasons in this line are stated in Springfield Ins. Co. v. Reeseville, hereafter quoted. It seems to us that the reason for non-liability here criticised should never be given in any case which falls within the principles-of law and equity that govern the rights and liabilities of parties and which if applied determine the rights of one with the corresponding liability of the other, and these reasons should never be urged in any court of law and equity, as they have no place there, but if at all reasons of merit, which is doubtful, should be addressed to the legislative branch of the government. As relating to the views generally expressed in this opinion we refer to the following cases, which, if not directly, by analogy support our rulings. In reviewing the decisions of our own State attention is directed to the City of Galveston v. Posnainsky, 62 Texas, 124, a leading and well considered case upon the subjects discussed and one which is generally cited with approval. For this reason we quote at length from that case: “The near approach of the close of the term makes it necessary that we content ourselves with a statement of what we understand to be the law on the question raised, as settled by the great weight of authority, and upon principle, in regard to the liability of a municipal coiq oration created by a special law, granting such powers as are given to the City of Galveston by its charter, and giving such means as are therein given to execute the powers, for damages to an individual, resulting from an injury received through the neglect of such a municipal corporation to keep in repair its streets, other public ways, sewers and like public works over which it is given full control by its charter. “In this State such corporations are not made liable for injuries resulting from neglect, by any express statute; and if liable, they are so solely on the ground that the proper application of the principles of the common law makes them so liable. To determine what the common law rule upon the subject is, we will refer to the great body of the common law decisions on this question, which for the reasons given, we cannot to any considerable extent review, but will to some extent cite; feeling that a conclusion thus reached will more likely be correct than the conclusion of a single court based upon such course of reasoning as it might pursue. “It has often been held that no action lies against a subdivision of a State, created solely for a public purpose, by a general law, applicable to all such subdivisions, for an injury received by a person through the neglect of the officers of such subdivision, even though, by the general law, such subdivision may be given a quasi corporate existence, the better to enable it to perform the public service imposed by the law. “The English cases, the cases in the New England States and in some of the other States in which such quasi municipal corporations exist, illustrate this rule. Those cases are but the practical application and proper extension of the rule that a State cannot be made liable to an action for the neglect or misfeasance of its officers, through which a person sustains injury, unless by statute the action is given. “In so far as a quasi corporation exercises powers exclusively public in their character, forced upon it without its consent, simply because the State can thus,, through such local agencies, more easily and effectively discharge duties essentially its own, it is but proper that no action should be maintained against it for the negligence, or even misfeasance of its officers, unless the action be given by an expression of the same sovereign will which arbitrarily imposed the duty. “The necessity for imposing, even on such quasi corporations, a liability for the negligence and misfeasance of their officers, and for giving actions against them, through which such liability maybe enforced, has generally been felt, and hence statutes ordinarily have been enacted, fixing the liability and giving the action. “The rule is very clearly presented in the case of Bigelow v. Inhabitants of Randolph, 14 Gray, 543, in which the court said: ‘It was said by Chief Justice Parsons half a century since, in Riddle v. Proprietors of Locks and Canals, 1 Mass., 181, and adjudged by a full court in Mower v. Inhabitants of Leicester, 9 Mass., 241, that a private action cannot be maintained against a town, or other quasi corporation, for a neglect of corporate duty, unless such action be given by statute. And so it has since been held by this and other courts. This rule of law, however, is of limited application. It is applied, in case of towns, only to the neglect or omission of a town to perform those duties which are imposed on all towns, without their corporate assent, and exclusively for public purposes; and not to the neglect of those obligations which a town incurs when a special duty is imposed on it, with its consent, express or implied, or a special authority is conferred on it at its request. In the latter cases, a town is subject to the same liabilities for the neglect of those special duties, to which private corporations would be if the same duties were imposed or the same authority were conferred on them — including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents. See the cases referred to in Eastman v. Meredith, 36 N. H., 295; Conrad v. Trustees of Ithaca, 16 N. Y., 158.’ “The case of Eastman v. Town of Meredith is one of much interest upon the subject under consideration, and may be consulted with much profit, as may the following cases and authorities: Rowe v. Portsmouth, 56 N. H., 291; Commissioners v. Duckett, 20 Md., 469; Commissioners v. Gibson, 36 Md., 229; Commissioners v. Baker, 44 Md., 1. “The tendency of the decisions is evidently to recognize the liability of even quasi corporations to suit not expressly given by statute, when injury results from the negligence of officials or agents exercising powers purely ministerial in reference to matters which cannot be said to pertain to duties purely public; to matters which, though in a restricted sense, are public, yet more directly affect the welfare and pecuniary interest of the inhabitants of the quasi corporation, upon whose will rests the determination whether the given act shall be performed and how it shall be performed, and upon whom rests solely the expense of the work put in operation by themselves, through wdiich, at least indirectly, they receive benefit in which the general public, if at all, but slightly participates. . ‘ “Counties and like quasi corporations are created by the Legislature by general laws without reference to the wish of their inhabitants, and thus for essentially public purposes. “Not so with towns and cities which are incorporated through special charters, which, like most special laws, are exacted at the request of those who are to be most directly benefitted by them and with a view to this end. “The one is created for a public purpose as an agency of the State, through which it can most conveniently and effectively discharge the duties which the State, as an organized government, assumes to every person, and by which it can best promote the welfare of all. “The other, while to a given extent created for a public purpose, is so mainly for the reason that the existence of large towns and cities makes a system or degree of police there necessary which is not so in villages nor with a rural population; but the main and essential purpose for which they are created is the advantage of the inhabitants of the corporation, and in so far as such corporations receive and exercise powers other than such as would be exercised by the State in and through the county organizations, this is essentially true. “Counties are declared by the laws of this State to be corporations; and they are municipal corporations in the sense that they are agencies ‘to regulate and administer the internal concerns of the locality in matters peculiar to the place incorporated, and not common to the State or people at large,’ but at the same time the State makes use of the corporation, and of its property, such as jails and court houses, and of its officers, to exercise power not strictly municipal, but in fact State powers, exercised for the State through the local officers within prescribed territorial limits. 1 Dillon Munic. Corp., 93. “Counties are created by general laws, and while they are municipal corporations in a restricted sense, they are involuntarily so, and sustain to the State a relationship which a town or city incorporated does not sustain. They are created to carry out a policy common to the whole State, and not mainly to advance the interest of the particular locality, and to bring advantage or emolument to the inhabitants of the municipality. “It would seem that, in so far as municipal corporations of any class, and however incorporated, exercise powers conferred on them for purposes essentially public — purposes pertaining to the administration of general laws made to enforce the general policy of the State, — they should be deemed agencies of the State, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute, the action be given; that, in reference to such matters, they should stand as does sovereignity whose agents they are, subject to be sued only when the State, by statute, declares that they may be. “How far counties, as municipal corporations, if at all, may be liable for injuries resulting from misfeasance or neglect, it is unnecessary in this case to inquire. “In so far, however, as they exercise powers not of this character, voluntarily assumed — powers intended for the private advantage and benefit of the locality and its inhabitants,- — -there seems to be no sufficient reason why they should be relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for a purpose essentially private would be liable. “Persons and corporations that voluntarily assume and undertake the performance of a work, even though it be quasi public in its character, ought to be held to impliedly contract that they will exercise due care in its performance, and for a neglect in this respect should be liable for -the resulting damage. “We do not wish, however, to be understood to assert that there is a contract between the State and a municipal corporation accepting a charter, but simply to assert that, when such a corporation accepts a charter giving defined powers, the law imposes the duty of faithfully exercising them, and gives an action for misfeasance or neglect in this respect to any person who may be inj ured by such failure of duty. “After having considered the true nature and liabilities of counties, towns, townships, boroughs, school districts, road districts and other organizations existing in some of the States, under general laws for the performance of public duties, as a part of the machinery of the State government, Judge Cooley thus speaks of municipal corporations accepting special charters from the State: ‘The reason which exempts these public bodies from liability to private actions based upon neglect to perform public obligations, does not apply to villages, boroughs and cities which accept special charters from the State. The grant of the corporate franchise, in these cases, is usually made only at the request of the citizens to be incorporated, and it is justly assumed that it confers what to them is a valuable privilege. This privilege is a consideration for the duties which the charter imposes. Larger powers of self-government are given than are confided to towns or counties; larger privileges in the acquisition and control of corporate property; special authoi’ity is conferred to make use of the public highways for the special and peculiar convenience of the citizens of the municipality in various modes not permissible elsewhere. “ ‘The grant by the State to the municipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise on the part of the corporation to perform the corporate duties, and as imposing the duty of performance, not for the benefit of the State merely, but for the benefit of any individual interested in its performance. “ ‘In this respect these corporations are looked upon as occupying the same position as private corporations, which have accepted a valuable franchise on condition of the performance of certain public duties, are held by the acceptance to contract for the performance of those duties. In the case of public corporations, however, the liability is contingent on the law affording the means of performing the duty, which, in some cases, by reason of restriction upon the power of taxation, they might not possess. But assuming the corporation to be clothed with sufficient power by the charter to that end, the liability of a city or village, vested with control of its streets, for any neglect to keep them in repair, or for any improper construction, has been determined in many cases. “ ‘And a similar liability would exist in other cases where the same reasons would be applicable.’ “The Supreme Court of the United States, in a number of cases, has held that municipal corporations with powers no broader, means no greater, and duty not more clearly imposed, than we find m the charter of the city of Galveston, are responsible for injuries which result from neglect to keep streets and other like public works in repair. Weightman v. City of Washington, 1 Black, 39; Chicago v. Robbins, 2 Black, 418; Mayor v. Sheffield, 4 Wall., 189; Evanston v. Gunn, 99 U. S., 660; Barnes v. District of Columbia, 91 U. S., 551. In the case last cited the court uses the following language: 6It is denied that a municipal corporation (as distinguished from a corporation organized for private gain) is liable for the injury to an individual arising from neg ligence in the construction of a work authorized by it. Some cases hold that the adoption of a plan of such a work is a judicial act; and if injury arises from the execution of that plan, no liability exists. Child v. City of Boston, 4 Allen, 41; Thayer v. Boston, 19 Pick., 511. Other cases hold that for its negligent execution of a plan good in itself, or for mere negligence in the care of its streets or other works, a municipal corporation cannot be charged. City of Detroit v. Blackeby, 21 Mich., 84, is of the latter class, where it was held that the city was not liable for an injury arising from its neglect to keep its sidewalks in repair. “ ‘The authorities establishing the contrary doctrine, that a city is responsible for its mere negligence, are so numerous and so well considered that the law must be deemed to be settled in accordance with them. English authorities: Mayor v. Henley, 2 Clark & Fin., 331; Mersey Docks v. Gibbs; Same v. Penhallow, 1 H. Ld. Cas. (N. S.), 93; 7 H. & N., 439; Lan. Canal Co. v. Parnaby, 11 Ad. & Ell., 223; Scott v. Mayor, 37 Eng. Law & Eq., 495. United States authorities: Weightman v. Washington, 1 Black, 39; Nebraska City v. Campbell, 2 Id., 590; Robbins v. Chicago, 4 Wall., 658; Supervisors v. United States, Id., 435; Mayor v. Sheffield, Id., 194. New York: Davenport v. Ruckman, 37 N. Y., 568; Requa v. Rochester, 45 N. Y., 129; Rochester W. L. Co. v. Rochester, 3 Id., 463; Conrad v. Ithaca, 16 Id., 158; Barton v. Syracuse, 36 Id., 54. Illinois: Browning v. City of Springfield, 17 Ill., 143; Clayburgh v. City of Chicago, 25 Id., 535; City of Springfield v. Le Claire, 49 Id., 476. Alabama: Smoot v. Mayor of Wetumpka, 24 Ala. (N. S.), 112. Connecticut: Jones v. City of New Haven, 34 Conn., 1. North Carolina: Meares v. Wilmington, 9 Ired., 73. Maryland: County Commissioners of Anne Arundel County v. Duckett, 20 Md., 469. Pennsylvania: Pittsburg City v. Grier, 22 Pa. St., 54; Erie City v. Schwingle, Id., 388. Wisconsin: Cook v. City of Milwaukee, 24 Wis., 270; Ward v. Jefferson, Id., 342. Virginia: Sawyer v. Corse, 17 Graft., 241; City of Richmond v. Long, Id., 375. Ohio: Western College v. Cleveland, 12 Ohio St., 377; McCombs v. Akron, 15 Ohio, 476; Rhodes v. Cleveland, 10 Id., 159. “The following cases and authorities maintain the same proposition: Bailey v. Mayor, etc., 3 Hill, 538; Mayor, etc. v. Furze, 3 Hill, 612; Weet v. Brockport, 16 N. Y., 161n; Lloyd v. Mayor, etc., 1 Seld., 374; Storrs v. City of Utica, 17 N. Y., 104; Ring v. City of Cohoes, 77 N. Y., 83; Noonan v. City of Albany, 79 N. Y., 470; McCarthy v. City of Syracuse, 46 N. Y., 194. Illinois: City of Lacon v. Page, 48 Ill., 499; City of Champaign v. Patterson, 50 id., 62; City of Bloomington v. Bay, 42 id., 503; City of Sterling v. Thomas, 60 id., 265; White v. County of Bond, 58 id., 298; Town of Waltham v. Kemper, 55 id., 346. Alabama: Albritton v. Mayor, 60 Ala., 486. Wisconsin: Kenworthy v. The Town of Ironton, 41 Wis., 647; Milwaukee v. Davis, 6 Wis., 377. Virginia: Noble v. The City of Richmond, 31 Gratt., 271. Ohio: City of Dayton v. Pease, 4 Ohio St., 94. Indiana: City of Logansport v. Wright, 25 Ind., 513. Missouri: Blake v. City of St. Louis, 40 Mo., 570; Murtaugh v. The City of St. Louis, 44 id., 480. Michigan: Dewey v. City of Detroit, 15 Mich., 311. Connecticut: Jones v. City of New Haven, 34 Conn., 1. Minnesota: Kobs v. City of Minneapolis, 22 Minn., 160; Simmer v. City of St. Paul, 23 Minn., 408. Tennessee: Mayor, etc., v. Lasser, 9 Humph., 757. Georgia: Mayor, etc., of Savannah v. Waldner, 49 Ga., 316. Louisiana: O’Neil v. City of New Orleans, 30 La. Ann., 220. New Hampshire: Wheeler v. Troy, 20 N. H., 80; Gilman v. Laconia, 55 N. H., 130. Iowa: Wallace v. City of Muscatine, 4 G. Greene (Ia.), 373, Massachusetts: Child v. City of Boston, 4 Allen, 52; Oliver v. Worcester, 102 Mass., 489. “In the last case cited, the court thus clearly stated the rule: ‘The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, in the management of property or rights voluntarily held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public. “ ‘To render municipal corporations liable to private actions for omissions or neglect to perform a corporate duty imposed by general law on all towns and cities alike, and from the performance of which they derive no compensation or benefit in their corporate capacity an express statute is doubtless necessary * * *. “ ‘But this rule does not exempt towns and cities from the liability to-which other corporations are subject, for negligence in managing or dealing with property or rights held by them for their own advantage or emolument. Thus, where a special charter, accepted by a city or town, or granted at its request, requires it to construct public works, and enables it to assess the expense thereof upon those immediately benefited thereby, by way of tolls or otherwise, the city or town is liable, as any other corporation would be, for an injury done to any person in the negligent exercise of the powers so conferred.’ See, also, Dillon on Municipal Corporations, 764; Cooley on Torts, 625; Cooley’s Con. Lim., 303; Wharton on Negligence, 956 et seq.; Shearman and Red field on Negligence, 125-133; Thompson on Negligence, 731-768, in which the cases bearing on the question are collected. “The character of corporate existence possessed by New England towns and cities, not existing under special charters, is very fully considered by Judge Dillon in his work on Municipal Corporations, 11-14, 763-796; and in the cases cited from those States, the decisions are all affected by the fact that the towns, cities or counties possessed only such corporate powers as were given to all such corporations by general laws, and were not municipal corporations created by special charters, at the wish of the inhabitants. This is true in the following cases". Oliver v. Worcester, 102 Mass., 490; Chidsey v. Canton, 17 Conn., 478; Reed v. Belfast, 20 Me., 248; Baxter v. Turnpike Co., 22 Vt., 114; Mower v. Leicester, 9 Mass., 247; Providence v. Clapp, 17 How., 161. Several of these cases, however, recognize the common law liability of municipal corporations created by special charter. “Chosen Freeholders v. Strader, 3 Harr. (N. J. L.), 108; Cooley v. Chosen Freeholders of Essex, 3 Dutch., 415, and Livermore v. Chosen Freeholders of County of Camden, 29 N. J. L., 245, are all cases in which injury resulted from failure to keep in repair county bridges, and were decided on the same grounds as the New England cases. “The case of Pray v. The Mayor, etc., 32 N. J. L., 394, probably rests on the same grounds, but the report of the case does not render this certain; but as the cases above referred to are given as authority for the decision, we take this to be true. “Brinkmeyer v. City of Evansville, 29 Ind., 187, decides that a city, incorporated by special charter, is not responsible for property destroyed by fire, where the city had not exercised such legislative or judicial power as it might have exercised under its charter; but in the opinion the court recognized the liability of a municipal corporation for injury resulting from its neglect to keep in proper repair streets which had been opened, in the following language: ‘There is but little, if any, analogy between the powers and duties devolving on these municipal governments in the organization of a fire department and those in relation to the improvement of streets and the construction of bridges, culverts and sewers. A street, when improved, is a public highway, open to the free use of all; and it is an old and well established principle that a corporation is bound to keep it in proper repair or condition, and is responsible for the damage caused by a neglect of that duty.’ “Duke v. Mayor, etc., of Rome, 20 Ga., 635, only decides that a municipal corporation is not liable for an error of judgment by a mayor and council in refusing to grant a license. “In City of Richmond v. Long, 17 Gratt., 375, it was held that the city was not liable for the value of a slave placed in the city hospital to be treated for small pox who escaped therefrom and came to his death by exposure; and so, because the city in establishing the hospital seems to have acted under a general law which was intended to provide means to prevent the spreading of contagious diseases, the servants of the city in this respect being considered public officers for whose neglect the city was not responsible. “Prather v. City of Lexington, 13 B. Monroe, 559, and Western College v. City of Cleveland, 12 Ohio St., 375, only decide that a municipal corporation is not responsible for property within its territorial limits destroyed by a mob. “Dargan v. Mayor, etc., 31 Ala., 469, simply holds that a municipal corporation having authority under its charter to pass ordinances forbidding slaves to be abroad at night or to assemble together without lawful permission, was not liable, at the suit of an owner, for the loss of a slave who was negligently killed by an officer of the city guard in attempting to arrest him for a breach of such ordinance. “The English cases referred to in the brief of counsel for appellant are either cases not against municipal corporations incorporated by special charter, or cases in which the liability of heads of departments of the government, for the defaults or neglects of persons appointed by them, was under consideration. “The case of Detroit v. Blackeby, 21 Mich., 84, goes to establish fully the non-liability of municipal corporations for injury resulting from neglect to keep streets in repair; but it cites for its support a line of decisions which to us seem not the most applicable, and ignores the line of English and American cases to which we have partially referred in support of an opposite rule; besides, the case is much weakened by the dissenting opinion of Judge Cooley, and it seems to be in conflict with the decision of the same court in Dewey v. City of Detroit, 15 Mich., 311. “In the case of City of Navasota v. Pearce, 46 Texas, 527, much of the reasoning of the court would lead to the same result as that reached in the case of Blackeby v. Detroit; but in the case it does not appear that the streets of the city of Navasota were not in good repair, nor that the ditch into which the horse fell was within the street over which the city, by its charter, was given control nor so near to the street as to make it the duty of the city to erect protection against it; nor does it appear that there was any want of due care in the city. We cannot now have access to the transcript to ascertain what the facts really were; but we know from the opinion itself that it was not intended to lay down the broad rule that a municipal corporation, created by a special charter, or by the voluntary action of the inhabitants of a given territory, under the laws of this State, which permit incorporation under the general law enacted for that purpose, is not liable to an action for an injury which may result from the neglect of such corporation to keep its streets in proper repair; for the opinion in the case expressly limits its application to the very case then before the court. That such corporations in many respects may be responsible for their neglects or misfeasances is recognized in Peck v. City of Austin, 22 Texas, 265. The question involved is incidentally noticed in Keller v. Corpus Christi, 50 Texas, 628, and in Conway v. City of Beaumont, decided at last Galveston term (61 Texas, 10). “The question is one to be decided by the application of common law principles, and to ascertain what those principles are, we can and ought to resort to common law authorities, and doing so, to our minds, the weight of authority holding that such a corporation, created by special charter, is liable for an injury resulting from its neglect to keep its streets in repair, is so overwhelming that we feel constrained to hold the law so to be, and that an action lies for such an injury without its being expressly given by statute.” In Ysleta v. Babbitt, 28 S. W. Rep., 703, it is held that when a city voluntarily undertakes to furnish water for irrigation purposes, to the public, by virtue of article 374, Sayles’ Civil Statutes — the same provision of law under which the appellee is operating its water-works — and wrongfully withholds water from a consumer, it is liable therefor in tort. In Aaron v. Broiles, 64 Texas, 316, it is held that a city has the undoubted right, under its legislative authority, to enact and enforce an ordinance to remove from the limits of the city persons afflicted with contagious diseases, and that such a right cannot be questioned; but that the act of removing such persons is ministerial and must be done with due care, otherwise the city will be liable if injury results through its negligence. In City of Fort Worth v. Crawford, 74 Texas, 404, the city was held liable for the negligent manner of keeping its dump-yard, by reason of which the noxious odors arising therefrom caused sickness. In City of Austin v. Emanuel, 74 Texas, 623, the city was held liable for its negligence in constructing a bridge, by reason of which water was diverted from the stream and destroyed plaintiff’s property. In Gross v. City of Lampasas, 74 Texas, 195, the court holds that a city will be liable for its negligence to one whose property is injured in draining its streets. In keeping with these cases are Barber v. City of East Dallas, 83 Texas, 148; City of Hills