dissenting.
It is unquestionably, I think, a rule of sound public policy, that a municipal corporation which is vested with full control of the public streets within its limits, and chargeable with the duty of keeping them in repair, and which also possesses by law the means of repair, should be held liable to an individual who has suffered injury by'a failure to perform this duty. If we sat here as legislators *118to determine what the law ought to be, I think we should have no difficulty in coming to this conclusion.
But we sit here in a judicial capacity, and the question presented is, Avhat is the law, and not Avhat ought the law to be. This question is to be determined upon common-law principles, and the most satisfactory evidence of what those principles are is to be found in the decisions of the courts.
The decisions which are in point are numerous; they have been made in many different jurisdictions, and by many able jurists, — and there has been a general concurrence in declaring the law to be in fact what we have already said in point of sound policy it ought to be. We are asked, nevertheless, to disregard these decisions, and to establish for this State a rule of law different from that Avhich prevails elsewhere, and different from that which, I think, has been understood and accepted as sound law in this State prior to the present litigation.
The reason pressed upon us for such a decision is, not that the decisions referred to are vicious in their results, but that the reasons assigned for them are insufficient, so that, logically, the courts ought to have come to a different conclusion.
I doubt if it is ,a sufficient reason for overturning an established doctrine in the law, Avhen its results are not mischievous, that strict logical reasoning should have led the courts to a different conclusion in the beginning; if it is, we may be called upon to examine the foundation of many rules of the common law which have always passed unquestioned.
I concur fully in the doctrine that a municipal corporation or body is not liable to an individual damnified by the exercise, or the failure to exercise, a legislative authority; and I also agree that the political divi*119sions of the State, which have duties imposed upon them by general law without their assent, are not liable to respond to individuals in damages for their neglect, unless expressly made so by statute. Upon these two points the authorities are generally agreed, and the result is well stated in the opinion of the Chief Justice.
The question for us to decide is, whether a different rule applies where a municipal corporation exists under a special charter which confers peculiar powers and privileges, and imposes special duties, from that which prevails in the case of towns and counties. The authorities have found reason for a distinction, and I am not yet prepared to say that their reason is baseless.
The leading case on the subject is Henley v. The Mayor and Burgesses of Lyme Regis, which went from the Common Pleas through the King’s Bench to the House of Lords, and is reported in 5 Bing., 91; 3 Barn. and Ad., 77, and 1 Bing. N. C., 222. In that case it appeared that the King, by letters patent, had granted to the Mayor and Burgesses of Lyme Eegis the borough or town of that name, and also the pier, quay, or cob, with all liberties, profits, etc., belonging to the same, and remitted a part of their ancient rent, expressing his will therein, that the said Mayor and Burgesses and their successors, all and singular, the buildings, banks, sea-shores, etc., within the, said borough, or thereunto belonging, or situate between the same and the sea, and also the said pier, etc., at their own costs and charges, should repair, maintain and support. All the courts held that the defendants, having accepted the charter, became legally bound to repair the buildings, banks, etc., and that as this obligation was one which concerned the public, an action on the case would lie against them for a direct and particular damage sustained by an individual in consequence of a neglect to perform it. The *120reasoning was, that the things granted by the charter were the consideration for the repairs to be made; and that the corporation, by accepting the letters patent, bound themselves to do these repairs. This decision is the unquestioned law of England to the present time, and is referred to with approbation in the American cases.
I do not understand this decision or the previous and analogous one of Mayor of Lynn v. Turner, Cowp., 86, to be questioned in the present case; but it is contended that neither is applicable, because the grant was one for the benefit of the corporators, which they might accept or refuse at their option, but which, if accepted, must be taken cum onere, and the acceptance was in the nature of a covenant to perform the duty imposed. Moreover, that duty, it is said, Avas. individual, not governmental; and the responsibility for failure to perform it would not depend on negligence, notice, or any other contingency not expressed in the coA'enant; and in any point of view it is argued that these decisions have no more bearing upon the question of public duties and public responsibilities, than if the grants to the corporations in these cases had been made to individual residents.
This is not the first time that this view of the cases referred to has been presented to the courts. It was very fully examined by Mr. Justice Selden in Weet v. Brockport, 16 N. Y., 161, note, and in his opinion there was nothing in it which should exempt municipal corporations from the principle declared, even when the neglect of duty relates to a governmental power. “It is well known,” he very truly says, that “charters are never imposed upon municipal bodies except at their urgent request. While they may be governmental measures in theory, they are, in fact, regarded as privileges of great value, and the franchises they confer are usually sought for *121with much earnestness before they are granted. The surrender by the Government to the municipality of a portion of the sovereign power, if accepted by the latter, may with propriety be considered as affording ample consideration for an implied undertaking on the part of the corporation, to perform with fidelity the duties which the charter imposes.” Ibid., 171.
Now it does not appear to me to be a sufficient answer to this position, that the State might, if it saw fit, impose a municipal charter upon the people without their consent and even against their remonstrance. That is not the ordinary course of events, and the question for us to consider is — What is the legal significance of things as they actually occur ? We find, as matter of fact, that people apply for a charter conferring such privileges as they deem important, in view of their actual circumstances, and that many of these privileges are quite superior to, and more valuable than, those possessed by the people generally. When the Legislature grants these privileges it imposes concurrent duties. What is the fair construction of these acts of the people and the Legislature respectively, — the people in soliciting the privileges, and the Legislature in attaching the duties to the grant which it makes ? This is the question which we are to consider.
The New York courts have invariably held that when the people of the municipality accepted the charter which they had thus solicited, a contract was implied on their part to perform the corporate duties. They have always denied that in this respect there was any difference between a municipal corporation and a private corporation or private individual, who had received from the sovereignty a valuable grant, charged with conditions.—Hutson v. N. Y., 9 N. Y., 163; Weet v. Brockport, 16 N. Y., note, 161; Conrad v. Ithaca, 16 N. Y., 158; Storrs v. Utica, 17 N. *122Y., 104; Mills v. Brooklyn, 32 N. Y., 489; Lee v. Sandy Hill, 40 N. Y., 442. The same decision has frequently been made in other States. Meares v. Wilmington, 9 Ired., 73; Pittsburgh v. Grier, 22 Penn. St., 63; Erie v. Schwingle, Ibid., 388; Ross v. Madison, 1 Ind., 281; Stackhouse v. LaFayette, 26 Ind., 17; Smoot v. Wetumpka, 24 Ala., 112; Browning v. Springfield, 17 Ill., 143, in which the question is very fully and carefully considered by Mr. Chief Justice Scates. Commissioners v. Duckett, 20 Md., 468; Sawyer v. Corse, 17 Grat., 241; Richmond v. Long, Ibid., 375; Bigelow v. Randolph, 14 Gray, 541, which, though not an express authority, recognizes the doctrine: Jones v. New Haven, 32 Conn., 1; Cook v. Milwaukee, recently decided by the Supreme Court of Wisconsin, and to be found in 9 Law Reg., N. S. 263 [24 Wis., 270].
The same question has also been frequently and fully examined by the Supreme Court of the United States, and no doctrine is more firmly settled in that Court than that municipal corporations are liable for negligence- in cases like the present. It will be sufficient, perhaps, to refer to the case of Weightman v. Washington, 1 Black, 39, in which the English and American cases were examined, but the same question has frequently been brought to the attention of the Court since, and uniformly with the same result.
And it is remarkable that in all the cases which have upheld this doctrine there has scarcely been a whisper of judicial dissent. It would be difficult to mention another so important question, which has been so often, so carefully, and so dispassionately examined, and with such uniform result. In no State is the doctrine of Henley v. Mayor, etc., of Lyme Regis, as applied in Weet v. Brockport, denied except in New Jersey, and in that State the authorities I have referred to seem to have been passed over in silence and perhaps were^not observed.
*123We are asked, therefore, to overrule a rule of law which is safe, useful and politic in its operation, and which has been generally accepted throughout the Union, not through inadvertence or by surprise, hut after careful, patient and repeated examination upon principle, by many able jurists, who have successively given due consideration to the fallacies supposed to underlie it. For my own part I must say that the fallacies are not clearly apparent to my mind, and I therefore prefer to stand^with the authorities. And I deem it proper to add also, that, inasmuch as the rule of responsibility in question seems to me a just and proper one, I should he inclined, if my judgment, of its logical soundness were otherwise, to defer to the previous decisions, and leave the Legislature to alter the rule if they should see fit.