The principal ground taken at the circuit against this action, and the one upon which it is understood the cause there turned was, that the defendants were not chargeable for negligence or unskilfulness in the construction of the dam in question ; inasmuch as the water commissioners were not appointed by them, nor subject to their direction or control. In other words, the commissioners not being their agents in the construction of the dam, the rule respondeat superior could not properly be applied.
Another ground is now taken, which I will first notice, viz. that admitting the water commissioners to be the appointed agents of the defendants, still the latter are not liable, inasmuch as they were acting solely for the state in prosecuting the work in question, and therefore are not responsible for the conduct of those necessarily employed by them for that purpose. We admit, if the defendants are to be regarded as occupying this relation, and are not chargeable with any want of diligence in the selection of agents, the conclusion contended for would seem to follow. They would then be.entitled to allj the immunities of public officers charged with a duty whichj from its nature, could not be executed without availing themselves of the services of others; and the doctrine of respondeat superior does not apply to such cases. If a public officer authorize the doing of an act not within the scope of his authority, or if he be. guilty of negligence in the discharge of duties to be performed by himself, he will be held responsible; but not for the misconduct or malfeasance of such persons as he is obliged to employ. (Hall v. Smith, 2 Bing. 156 ; J. B. Moore, 226, S. C. ; Humphreys v. Mears, 1 Man. & Ryl. 187 ; Bolton v. Crowther, 4 Dowl. & Ryl. 195 ; Harris v. Baker, 4 Maule & Selw. 27.)
But this view cannot be maintained upon the facts before us¿
The argument of the defendants’ counsel confounds the powers in question with those belonging to the defendants in their character as a municipal or public body—such as are granted exclusively for public purposes to counties, cities, towns and villages, where the corporations have, if I may so speak, no private estate or interest in the grant. As the powers in question have been conferred upon one of these public corporations, thus blending in a measure those conferred for private advantage and emolument with those already possessed for public purposes, there is some difficulty, I admit, in separating them in the mind, and properly distinguishing the one class from the other, so as to distribute the responsibility attaching to the exercise of each. But the distinction is quite clear and well settled, and the process of separation practicable. To this end,, regard should be had, not so much to the nature and character, of the various powers conferred, as to the object and purpose, of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation, quoad hoc, is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred. (Dartmouth College v. Woodward, 4 Wheat. 668,672 ;
Regarding the defendants then in the light of any other private company upon whom the like special franchises had been conferred, the next question is, whether the water commissioners charged with the immediate superintendence and execution of the work stand in the relation of agents deputed by the defendants to perform this duty. If they do, it is not denied, in this aspect of the case, that the defendants are answerable to the plaintiffs for any damages sustained through the negligence or unskilfulness of the commissioners. The question depends mainly upon a construction of the act of 1834, (Sess. Laws of 1834, p. 451,) as the several other statutes relating to this work have no material bearing upon the point. By this act, the water commissioners are to be appointed by the governor and senate. (§ 1.) It is made their duty to examine and consider all matters relative to supplying the city with a sufficient quantity of pure and wholesome water; (§ 2 ;) for which purpose they are empowered to employ engineers, surveyors, and such other persons as may be necessary &c. (§ 3.) They are also required to adopt such plan as in their Judgment may be most advantageous for procuring a supply of water, and to ascertain as nearly as practicable what amount of money it will cost to carry the plan into effect 3 and for this purpose, they are empowered to make conditional contracts, (subject to the ratification of the common council of the city,) with the owners of lands &c. required for the work 3 the con-»
We have already given our views of the character of this work, and of the capacity in which the defendants hold the powers under which it has been executed. If we are not mistaken in that conclusion, and they are to be regarded as a private company, like any other body of men upon whom special franchises have been conferred for their own private advantage—such as banking and rail-road corporations—then the appointment of the agents by the state did not make them less the agents of the defendants. The appointment in this way is but one of the conditions upon which the charter was granted3 and stands on the footing of any other condition to be found in | the grant, subject to which it has been accepted. By accepting 1 the charter, the defendants thereby adopted the commissioners ‘! as their own agents to carry on the work. The acceptance was entirely voluntary; for the state could not enforce the grant upon the defendants against their will. This would be so upon general principles 3 (Angel § Ames on Corf. 46— 50, and cases there cited;) but here, the charter itself left it op tional with the common council of the city to accept or not. (§ 7,) The undertaking of the work was made to depend upon the approval of the plan of the commissioners, which necessarily involved the right to adopt or reject the work itself altogether, if they disliked the system prescribed by the legislature. The approval having taken place, this* together with the subsequent
It is also insisted that, assuming the defendants are liable and bound to make compensation for the damages sustained by the plaintiffs, the statute has provided a remedy by appraisement, to which alone they must resort, as the common law remedy is thereby superseded.
The act (Sess. Laws of 1834, p. 453, § 12,) provides that the commissioners may enter upon any land or water for the purpose of making surveys, and may agree with the owners of any property which may be required for the purposes of the act, as to the amount of compensation &c. In cases of disagreement between the commissioners and the owner of any property which may be required for said purposes, or affected by any operation connected therewith, as to the amount of compensation &c., the vice chancellor of the first circuit may, upon the application of either party, appoint three indifferent persons to examine such property, and to estimate the value thereof, or damage sustained thereby, See. (§ 13.) It is quite apparent, from a perusal of these provisions, that they apply, and were intended to apply, only to cases where property was necessarily taken and appropriated, or its use and value necessarily impaired, in the course of the execution of the work ; not to damages occasioned beyond this, through the mere carelessness and unskilfulness of the defendants or their agents.
New trial granted.