I can not concur in the result arrived at by my brethren in this case. It appears to me to come clearly within that class in which the employer, hawing made a fair and proper contract to do a lawful act in a lawful tvay, is not liable where the contractor violates his duty to the injury of a third person.
The city of Detroit is not a private corporation established for private ends, but a public corporation established for the better government of a particular district, and all its powers are given because deemed essential for public purposes. The duties imposed upon it are all coordinate, and while required to bo exercised harmoniously, are of equal dignity and importance. The law does not recognize any principle whereby one shall bo regarded as subordinate to another. In carrying out any public work it may often happen that easements and improvements of a differ*189ent character may be for the time interfered with. In such case one work must not stop because it interferes with another. No street can be paved, nor water pipe laid, nor sewer built, without an interference during the process with the ordinary use of the highway. The city is no more bound to keep up the highway, than it is to build the sewer, or lay the water pipe, when in the exercise of its discretion it has determined these to be required by the public health or necessity.
In the case before us, the city entered into a contract with private parties for the construction of the sewer in question. It is admitted to have been properly planned, and it is also beyond question that nothing- was omitted in the specifications or in the contract which was necessary either for convenience or safety. Had the contract been carried out fully, the accident could not have happened. The city, then, is not at fault for omitting any precautions in its powder, or any act which could be done to guard the faithful performance of the work without peril to others. And if it is liable at all, it is upon the theory that the contractor is so far a mere agent, that the city is responsible for his unfaithfulness, and its consequences to all third persons, and that such responsibility exists although the work itself was lawful and lawfully put under the contractor’s control. The charter contemplates that all expensive public improvements shall be made by contract upon biddings. The evident object was to secure the performance of such work by the lowest bidder, and to prevent the city from exercising favoritism, or using funds for corrupt purposes, as well as to prevent the employment of a host of persons under pretext of doing service. The suppression of fraud and the exercise of economy were both designed. But it was, for whatever reason, done to keep the city from having its own employees. The municipal authorities could plan all public works, and prescribe all their details, but they could not build them: that must be done by private contractors.
*190It certainly would strike most persons that, a power of this kind, which must, under the charter, be exercised by private parties, is not a public power, and can involve no public responsibility. The doctrine of agency is not compatible with the Avant of poAver in the principal. Neither do I perceive how, when such powers are taken from the city and put in private hands, they can be partially severed, allowing the city to do a portion of the Avork, and the contractors the rest. . The evil to be avoided would not be remedied by anyTsuch process. If a sower is to be constructed, the work must embrace everything essential to its proper and lawful completion. And if no seAver can be properly built in a city thoroughfare without certain guards and fences, the erection of these is a necessary precaution incumbent upon the contractor. They must be changed and removed daily as the work progresses, and involve the necessity of workmen, whose employment would not only interfere Avith the charter, but who could not safely or prudently be left independent of the management of the main work. The suggestion made by one of the recent decisions, that a city can not get rid of the performance of its duties by shifting them off under the pretext of a contract, loses all of its force, if it has any, where the law itself has fixed the duty elsewhere, and not only sanctions but inquires the contract.
The doctrine is not disputed by my brethren that, where the relation is'.merely one of contract, there is no. liability against the employer for the negligence or misconduct of the contractor. But the decision seems to be based upon the] theory that there is here more than a contract; that the city has received certain privileges Avhich are upon implied conditions, and that those conditions are not susceptible of performance without the action of the-city, through agente for which it is responsible. I can not accede to this doctrine.
The city is entirely the creation of statute. It holds. *191no privileges intact. All its powers may be removed, modified, or confided, to other hands at any time. The Legislature bestows upon each municipal corporation the powers which are deemed proper to be exercised by it, precisely as upon a township or other local body. Neither the city nor its inhabitants can set up, against a legislative removal of authority, that money has been expended or debts incurred relying upon it. The citizens have no voice in the matter. And the duties of such a corporation, imposed entirely by law, are in no sense distinguishable in their character from like duties exercised by any other local authority. They are not assumed by .contract, but imposed by authority. And why a contract made by a city within its sphere, differs from one made by any one else, I am not able to perceive.
It is undoubtedly true that in many cases where a franchise is granted to a private corporation for its own emolument, and express duties are connected with the exercise of that franchise, the corporation is bound to see them performed; and the same obligation would perhaps apply to duties arising by necessary implication. But this rule is by no means of universal application. A corporation authorized to do an act is usually authorized to do it as an individual could, and if he could do it by contract so as to shield himself from the contractor’s misdeeds, the corporation could also. Individuals have been held exempt from the consequences of breaches of duty by their contractors, in work done in highways as well as elsewhere, from the abuse of which accidents and nuisances have occurred. And corporations have not usually been held to any different liability. See Blake v. Ferris, 1 Seld. 48; Pack v. Mayor, 4 Seld. 222; Kelly v. Mayor, 1 Kern. 432; Clark v. Fry, 8 Ohio S. R. 358; Moore v. Sanhorn, 2 Mich. 528; DeForest v. Wright, 2 Mich. 368. There is nothing to prevent the Legislature from allowing any person whatever to do any act in derogation of what *192would be otherwise a public easement, so long as such act does not injure some private right not dependent on that of the public, and then no one but the holder of such private right can complain. If the Legislature authorize a highway to be obstructed or diverted, no one can complain of the obstruction merely because, as one of the public, he has been accustomed to pass.
The right, therefore, of doing acts which may temporarily or permanently interfere with the public passage, is not necessarily confined to a city or local corporation, but may be exercised by any one to whom it is granted. And in authorizing- drains and other usual private works to be carried on, I apprehend the city acts merely on behalf of the public, and not as the possessor of a franchise. These works are not city works in any sense of the term; and the city, in the cases cited, and numerous others cited on the argument, is not responsible. It does not follow, because a person prosecuted for digging up a highway must show his license, that his act is the act of the city, and that he is the agent of the city, any more than a broker is agent of the State Treasurer who gives him a license.
The distinction taken by my brethren, it seems to me, applies only where private property is interfered with, under some right arising under the principle of eminent domain. Thus, we held in the case of Gardner v. Smith, 7 Mich. 410, that where the law made a railroad corporation, and its agents, liable for losses from neglect to make the fences required by section 43 of the general railroad law, upon property adjoining the track, a contractor building the road had no right to enter upon land and open the track, except upon performance of those conditions, and was to be regarded as an agent of the company. But a franchise of this kind is neither negotiable nor assignable, and can only be exercised by the grantee from the State.
In the case before us, the contractor himself, and not *193the city, is the very person, and the only person, authorized by; the charter itself to do this work. He is expressly recognized i.in the grant of power. The city does not appoint him as an agent to do what it could do by any other agent. It acts in; prarsuanee of a strict legal duty, which is confined to making plans and lotting them out to bidders. And I think this recognition of the right and duty of letting out the work in this way would take this case out of the rule laid down by my brethren, even if it were thus broadly applicable.
But it has not been held applicable to prevent municipal corporations, any more than individuals, from making contracts with the same immunity. The English, and most of the New York oases cited on the argument, establish this right. There are some cases holding a different doctrine. The cases of Storrs v. Utica, 17 N. Y. 104, and Hickok v. Plattsdurg, 16 N. Y. 161, aro undoubtedly authorities the other way. But neither of these oases assumes to assail the correctness of the former decisions directly. They endeavor to draw lines of distinction, which, to my mind, are entirely untenable. And the case of Storrs v. Utica goes partly, if not mainly, upon an assumption which my brethren have very properly disapproved, that the duty of maintaining a highway in repair was paramount to that of constructing a sewer.
I think the court below erred in holding the city liable for the neglect of the contractor, and that the judgment ought to be reversed.
Judgment affirmed.