The opinion of the court was delivered by
Tyi/er, <7.The defendant is a municipal corporation, organized under a charter granted by the Legislature in November, 1882. Section 1 of its charter defines its boundaries. Its corporate relation to and control of the streets and highways within its limits are set forth in section 46, which is as follows: “ All the territory embraced within the limits of said village is hereby constituted a highway district of the town of Rutland, and all the highway taxes assessed upon the polls and ratable estate thereof shall be paid in money, and the selectmen of the town of Rutland shall make out a tax bill thereof and deliver the same seasonably, as required by law, with a warrant for its collection, to the collector of said village, who shall collect the same as *181other taxes of said village are collected, and pay the same over to the treasurer of the village, which money shall be drawn from said treasury by said trustees, and shall be expended by them in building, constructing, maintaining and repairing the streets, highways, walks, alleys, sewers and lanes of said village, and no ■surveyors of the said highway district shall be required or ■chosen by said town.”
It is provided that its trustees may appoint and remove at pleasure, among other officers, a street commissioner, who shall ¡superintend the construction and repair of streets, walks, culverts, sewers and drains, subject to the authority and discretion of the trustees.
It will be observed that the charter imposes no liability on the village corporation for damages sustained by individuals upon its streets and highways in consequence of defects therein, and it has long been settled law that in the absence of express statutes declaring liability, such defects are not actionable. In Hill v. Boston, 122 Mass. 344, Mr. Justice Gray makes a very thorough •examination of the authorities on the subject and says: “ The result of this review of the American cases may bo summed up as follows: There is no case in which the neglect of a duty imposed by general Jaw on all cities and towns alike has been held to sustain an action by a person injured thereby against a •city when it would not against a town. * * * In the absence of such binding decisions, we find it difficult to reconcile the view .that the mere acceptance of a municipal charter is to be considered as conferring such a benefit upon the corporation as will render it liable to private action for neglect of the duties thereby imposed upon it, with the doctrine that th'e purpose of the creation of municipal corporations by the State, is to exercise a part of its powers •of government.” * * * See also Parker v. Village of Rutland, 56 Vt. 224; Weller v. City of Burlington, 60 Vt. 28.
The town of Rutland was bound by law to maintain all the -streets and highways within its boundaries. It maintained those within the village of Rutland, through the instrumentality of the village corporation, which was a mere highway district of the town.
*182It is needless to decide or discuss the question whether the defendant had a legal right to purchase a stone crusher. Pursuant to the provisions of the charter all the highway taxes assessed upon the polls and ratable estate of the village were collected and paid into the village treasury, and were drawn out by the trustees and expended by them in maintaining walks, streets, etc. The question is whether the trustees and street commissioner, while engaged in work upon the streets, were public officers, or servants and agents of the village. If the former, the defendant is not liable ; if the latter, it is liable for their acts of negligence.
It must be conceded that the defendant corporation is a political subdivision of the State, chartered and organized mainly for governmental purposes. Then, were the trustees and street commissioner, at the time of the accident, engaged in a public service, or in a work that was for the peculiar benefit of the defendant in its local or special interests ? The character of the employment is determinative of the defendant’s liability for the acts of these officers. This subject is elaborately discussed in Bailey v. Mayor, etc., of New York, 3 Hill, 531, and in Scott v. Mayor, etc., of Manchester, 2 H. & N. 204; Hill v. Boston, supra. In the case last cited, Justice Gray says: “ The result of the English authorities is that when a duty is imposed upon a municipal corporation for the benefit of the public, without any consideration or emolument received by the corporation, it is only where the duty is a new one, and is such as is ordinarily performed by trading corporations, that an intention to give a private action for a neglect in its performance is to be presumed.” 2 Dill, on Cor. s. 974 et seq.; Weller v. City of Burlington, supra.
By an act of the Legislature of Massachusetts the selectmen of towns were authorized to establish and maintain such drinking-troughs within public highways as in their judgment public necessity and convenience required, and towns were authorized to raise and appropriate money to pay the expense of the same. In a case where troughs, painted in such a manner as to frighten horses, were put up by selectmen, it was held that the *183selectmen were public officers, that the town was not liable, that it had no corporate interest in the work.
The line of distinction between corporate duties that are governmental and performed in behalf of the public, and those that inure to the special advantage of municipalities is defined in Welsh v. Village of Rutland and Weller v. City of Burlington, supra. The reasoning of the Chief Justice in the former-case is applicable to the facts in the one at bar. The defendant was engaged in the public work of repairing its streets. The-officers by whom the work was being performed were, for this-purpose, public officers, and for their negligent acts an action does not lie against the defendant. This view is in accordance with the decision in Wilkins v. Village of Rutland.
We think the court should have directed a verdict for the defendant as requested ; therefore,
The judgment is revei'sed and judgment for the defendant.