dissenting: The case of Asbury v. Albemarle, decided at this term, and the one now being considered, illustrate the difficulty of marking the line between the ministerial duties of a municipal corporation, in the performance of which it acts as a private corporation, and its governmental powers.
In the Albemarle case the Court said: “It is well settled that local conveniences, and public utilities,' like water and lights, are not provided by municipal corporations in their political or governmental capacity, but in that gmsi-private capacity in which they act for the benefit of their citizens exclusively,” and upon this principle held an act of the Legisla*423ture unconstitutional because it interfered with, the discretion of the municipal corporation in the establishment of a system of waterworks, this being done in its private capacity; while in this case it is held that throwing garbage in a hole in the street is governmental.
I do not agree to the decision in either case. I think the act in the Albemarle case constitutional, and that it is just and wise, as it simply requires a municipal corporation, when it has induced another corporation to establish a private system of waterworks within its limits, to buy or condemn such system, paying only what it is worth, before it consti'ucts0 a system of its own, and thereby confiscates property, devoted to a use within the corporation by its consent.
In the present case the Court admits that the defendant is liable, but restricts the recovery to damages to property, and denies the right to recover for sickness of the plaintiff or his family, or for expenses incurred in restoring them to health.
I admit that there is authority in favor of the opinion of the Court, but to my mind no good reason has been shown for the distinction, or for departing from the principle, well-nigh universal, that one who does a wrong is liable for all the damages caused naturally and* proximately thereby.
The rule adopted by the Court is, as it appears to me, illogical, and has been, arbitrarily established, because of the fear that if recoveries are allowed for sickness, municipal corporations may become bankrupt, and also because of the growing tendency to sacrifice the rights of the individual to some idea of public policy.
We are warned that “public policy is a dangerous guide in the discussion of a legal proposition,” and that those who follow it far are apt “to bring back the means of error and delusion”; but if it should be considered at all, I think it wiser and better for a loss to be distributed among all the citizens of a municipality than to leave it, where the municipality has placed it, on the shoulders of one man, and that the best public policy includes justice to the individual.
I cannot believe it is in accordance' with law or justice' that ■ a municipal corporation may throw garbage, sewage, etc., on *424the land of a citizen, against his will, and bring death and sickness to his wife and children, and that the citizen may recover damages for injury to his land, but can recover nothing for injury to his wife and children..