(dissenting):
I cannot concur. In no way are the defendants charged by the complaint with negligence except as they have omitted to perform certain duties respecting a sidewalk, within their legislative jurisdiction, as members of the common council of the city of Ogdensburg.
By the charter of the city, which is by the complaint made the chart of the defendants’ duties, jurisdiction is conferred upon the common council as the complaint recites, “ to direct the manner and superintend the making and repairing of the sidewalks and crosswalks in said city; to compel every person or corporation in the city to clear the snow and dirt from off the sidewalk in front of all premises .owned or occupied by such, person or corporation, and to exercise the duties of commissioners of highways of towns within the corporate limits of said city.”
"Whatever else is said in the complaint respecting the duties of the common council under the powers quoted, is the pleader’s conclusion of law thereupon, and therefore is not admitted by the demurrer, which only admits the facts pleaded.
By the charter it appears that “ the common council shall only transact business as a board sitting in public.” Any manual or physical labor connected with clearing snow from sidewalks or compelling others to do it, or in superintending repairs, is by the nature of the case excluded from their duties. To their judgment and discretion, to be exercised in an assembly of the whole, and after such discussion and consideration as they deem proper, is committed by the charter, the making of such prudential regulations respecting the streets and sidewalks, as they shall deem wise, within the powers quoted.
How and when, and to what extent, shall they make prudential regulations for the repairs of the sidewalks, and to compel persons to remove snow and ice from them ? Every one will agree that they should take a practical view of the situation. Ogdensburg *366is tbe most northerly city of the State. In the winter, constantly to keep the sidewalks free from snow and ice is an impossibility. Lex non cogit ad impossibilia. The statutory duty of the common council is subject to the laws of nature. This fact is recognized by the charter, which by express terms exempts the city from common-law liability to any person injured “ by slipping upon any snow and ice ” upon any sidewalk, “ or by reason of the same not being in repair.” It may be conceded that this exemption of the city does not also exempt any ministerial officer from the consequences of his own personal negligence, but it is important as affecting the judgment and discretion of the common council in making the prudential regulations to be executed by their ministerial officers. For if instructed by the statute that their omission cannot involve the city in liability, and taught by experience that their efforts would be practically fruitless, they neglect to promulgate regulations against the elements, their judgment and discretion would seem to be exercised with practical wisdom.
Now, the plaintiff was injured either because the sidewalk was out of repair or because it was slippery from snow or ice. If the view we have taken of their duties is correct the common council had no ministerial duty respecting either category. A ministerial duty, as was said in the case of Mississippi v. Johnson (4 Wall., 498), the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion.
Their duty under the charter was to make such legislative regulations as possibly might result in providing for the appointment, and defining the duties, of a ministerial officer, but they are hot, and from the nature of their body and duties they cannot be, ministerial officers with respect to the sidewalks. The legislature under the Constitution has intrusted, but not abandoned to the common council, so much of its legislative power as relates to the care of the sidewalks of the city of Ogdensburg. The legislature might have exercised that power itself. It may exercise it notwithstanding the charter. It is probable that the proper exercise of it, within the limits of the charter, will involve local legislation providing for the creation of ministerial officers and prescribing their duties. And thus the distinction between the legislative body which creates the *367ministerial office and prescribes its functions, and tbe ministerial office itself becomes manifest. Herein do we clearly discern the distinction between the case of this common council and the many cases in the boobs in which ministerial officers have been held liable to third persons injured by their negligence. These cases all instruct us that the maker of regulations, involving judgment and discretion, is not liable for his failure either of action or of wise action ; but that the executor of such regulations, after they are made, may be liable for his. failure to execute them or for his mis-execution of them. Just as a judge is not liable for a bad judgment or for no judgment, but if he pronounces one the sheriff is liable if he fail to do his duty in executing it. This common council is the judge with respect to what shall be done with these sidewalks, and when they direct what shall be done and who shall do it, the latter and not the former may be liable to any one injured by his negligent performance or non-performance.
The charter authorizes the jjommon council “ to exercise the duties of commissioners of highways of towns within the limits of the city,” but with this significant qualification: “ so far as those powers and duties are consistent with the other parts of the act.” That is, so far as a deliberative legislative body, acting only in session duly assembled, can provide by proper ordinances for the highways and appoint the ministerial officers to carry out their ordinances. As- such commissioners of highways they have no ministerial duties respecting sidewalks.
No precedent for this action is cited. It is believed that public policy strongly condemns it. This common council, in the exercise of its deliberative and legislative functions, should not be coerced or coercible, annoyed or threatened by the suit of a private party, who, from motives of gain, may too lightly charge an omission of duty. The duties of this municipal legislature differ in extent, but not in kind, from the duties of the State or national legislature. Not for the protection of the legislator, but for the protection of the people, the State and national constitutions declare that he shall not be questioned in any'other place for his official acts, and these constitutional provisions were but the formulation or what had long been the unwritten law. If any legislator needs this protection, it is the local legislator who is so constantly exposed to the pres*368ence and pressure, and sometimes the exasperation of passion and interest.
Tlie judgment should be affirmed.
Judgment reversed, demurrer overruled, with costs below and in this court, with leave to defendants in twenty days to withdraw demurrer and answer over, on payment of costs.