The following dissenting opinion was pronounced by
Elliot, J.:In my judgment, notice to an individual councilman is not notice to the municipal corporation, unless the councilman was at the time engaged in the business of the municipality.
The importance of the question, considered as an abstract matter of law, as well as the consequences which must necessarily flow from the enforcement of the rule declared in the opinion of the *790majority, must stand as my apology for a somewhat lengthy statement of the reasons which impel me to refuse assent to the prevailing opinion.
It is necessary at the outset to determine the relations which members of the common council sustain to the corporation. Municipal corporations are political organizations instituted for public and governmental purposes. The whole interest is in the public; neither corporators nor officers have any private interest either in corporate property or corporate affairs. Councilmen are quasi public officers, with powers, duties-and liabilities, very closely resembling those of public officers of the State. Newman v. Sylvester, 42 Ind. 106. The common council are the governing legislative officers, and possess in some degree the attributes of local legislative sovereignty; but no body of municipal officers constitutes the corporation, nor do all the officers combined constitute the corporation. The inhabitants constitute the body corporate. Mr. Grant says: “The common council are the ministers or agents of the corporation, but, it is to be remarked, they are neither the corporation, nor are they in themselves a corporation.” Grant Corp. 357. The same doctrine is declared in Louber v. Mayor, 5 Abbott Pr. R. 325; Clarke v. Rochester, 24 Barb 446.
The common council are not general agents; on the contrary, they are special agents with limited statutory powers. Johnson v. City, 16 Ind. 227. Their powers are defined by statute, and the mode of exercise explicitly prescribed. It is an elementary principle that where powers are conferred upon a corporation, public or private, and the mode, of exercise prescribed, the powers conferred must be exercised in the prescribed mode. Our general law for the incorporation of cities does prescribe the mode in which the powers devolved upon the common councils of the cities of the State shall be exercised
It cannot be doubted that our statute requires that all official acts of the common council shall be done by the members when convened in regular or special session. This is, indeed, the general rule, irrespective of express statutory enactments. It must follow from the familiar principles referred to that the councilmen act for and represent the city only when sitting in lawful session. If it be granted that councilmen represent the municipality only when *791engaged in the discharge of their duties in the municipal legislature, then it must also be, conceded that an individual councilman does not at other times and places act as the agent of the corporation. It seems clear to my mind that the minor proposition is necessarily bound up and involved in the principal one.
I may be pardoned, I trust, for referring to some considerations which support the proposition that councilmen are agents only when engaged in discharging the functions of their office. Less than a quorum of the council can do no valid act. Logansport v. Legg, 30 Ind. 315; State v. Wilkersmlle, 20 Ohio St. 288. A record of proceedings must be kept and signed in the manner provided by statute. School Dist. etc. v. Blakes Co., 13 Conn. 227; Beering v. Rome, 6 Wend. 651; Moses v. White, 29 Mich. 59. Their modes, of procedure are analogous to and governed by the rules applicable to legislative bodies. 2 Dill Munic Corp. § 288. Meetings must be held at the lawfully designated times. Powers of the council can not be delegated to individual members. White v. Mayor, Swan, 364; Day v. Green, 4 Cash. 433; Smith v. Morse, 2 Colf. 524. These examples are sufficient to show, although illustrations might be multiplied, that the council as a collective body are the agents, and not individual councilmen at their respective homes and places of business scattered about the city.
Turning for a moment to the law governing private corporations, we shall find strong confirmation of the general doctrine affirmed in this opinion. One director can not bind the corporation, by admissions, or contracts. It requires the vote of a majority of all the directors in regular and lawful session, to impose binding obligations upon the corporation. Price v. Grand Rapids etc. Co., 13 Ind.; Brooklyn Gravel Road Co. v. Slaughter, 33 Ind. 185. A contract made by a majority of directors at an informal and irregular meeting, imposes no liability upon the corporation. Barcus v. Hannibal etc. Co., 26 Mo. 102; Cram v. Bangor, 12 Me. 354. Without prolonging this discussion by citation of. cases, which, indeed, is not necessary, the principle is so firmly set-tied and well known, I affirm that the universal rule is, that the governing officers of a corporation, such as directors and trustees, must, in order to bind the corporation, act as a collective body and in regular and lawful session. If this be the rule applicable to *792corporations, where directors and trustees have direct pecuniary interests^ it certainly must be so in cases where officers of a municipal corporation are discharging duties for the benefit of the public, and not for the promotion of private interests.
Fundamental principles of the law are the same whether the corporation whose interests and rights are under discussion is a public or a private one. The general principle, as settled by a long line of discussions, is that notice to an individual director of a private corporation is not notice to the corporation unless the director was at the time engaged in the transaction of corporate business. Among these cases are: U S. Ins. Co. v. Shurer, 3 Md. Ch. 381; Washington Bank v. Lewis, 22 Pick. 24; Farmer’s Bank v. Payne, 25 Conn. 444; Farrell v. Dart, 26 Conn. 376; La Faize v. Bell, 22 Barb. 54; Fulton v. N. Y. etc. Co. 4 Paige, 127 ; Louisiana Bankv. Senscal, 13 La. Ann. 525; Ponies v. Paige, 3 C. B. 31; Edwards v. R. R. Co. 1 Myl. & Co. 659; Laney v. Bryant, 30 Me. 466 ; Sopes v. Buffalo, etc. Co. 19 Barb. 310; Loomis v. Eagle Bank, 1 Disney, 285; Penngewasset Bank v. Rogers, 18 N. JI. 255. The principle that notice to a corporate officer is not notice to the corporation unless the officer was at the time of the notice engaged in some corporate business, applies as well to public as to private corporations. There is, indeed, stronger reason for the rule in cases of public corporations. Private corporations are organized for selfish purposes, and officers are controlled by motives of self-interest, whereas public corporations are organized for govermental purposes, and the officers are vested with public trusts and are not influenced by pecuniary or personal interest. It would violate all just principles of law and equity to impose upon public corporations a broader responsibility for the acts of their officer than that devolved upon private corporations.
Recurring again to fundamental principles, we find that notice to an agent is sufficient only in cases where the admission of the agent would bind the principal. This is incontestably so with respect to the officers or agents of private corporations. Dr. Wharton says: “ Whenever an officer of a corporation can bind the corporation by his acts, then notice to him will be notice to the corporation.” Wharton Agt. § 184; Story Agt. (8th ed.) § 140c. This doctrine logically follows from the cases cited, and is the only *793one which can be harmonized with settled principles. It is certain that an agent’s admissions bind his principal only when made while engaged in transacting the buéiness of the principal. Accepting as correct these fundamental principles, it follows as an unavoidable logical conclusion that notice to an individual councilman not at the time engaged in the performance of an official duty is not notice to the municipality.
The conclusion just expressed is that reached by one of the soundest lawyers and thinkers of our day. Judge Dillon, speaking of the declarations of municipal officers, says: “ To render such declarations and admissions evidence, they must accompany acts, which acts must be of a nature to bind the corporation.” 1 Dill. Munic. Corp. 3 ed. § 237. The opinion of the eminent author quoted is sustained by many authorities; see authorities cited in section 237 and in note to section 305. There are other cases sustaining the doctrine here maintained. In the case of Bush v. Geneva, 3 T. & C., N. Y. Sup. Ct. 40, it was held that notice to two of several town trustees of a defect in a street was not sufficient, and in Peach v. Utica, 10 Hun. 477, it was decided that notice to an alderman was not notice to the corporation.
Cases decided by the Supreme Court of Maine are cited by the appellee as sustaining the doctrine sanctioned by the majority opinion. These cases go much farther, so far indeed as to carry their own condemnation upon their faces, for they hold that notice to an inhabitant is notice to a town. It is true that some of these cases speak of “a principal” or “the principal” inhabitants, but this qualification is of little practical force where all inhabitants are, in theory, if not in fact, sovereigns and equals. It would be, to say the least, a very hard and ungracious task, for a court to undertake to sift the inhabitants of even the smallest city, and single out the principal ones. Aside from this, the doctrine, if applied to such cities as New York, Philadelphia, Chicago or Boston, would work the rankest injustice. It would have the same effect even in cities such as Logansport, for it would be inequitable to hold that notice to one, ten or twenty out of twelve thousand inhabitants, should fasten a burden upon all the other corporators. I know that the majority opinion sanctions no such doctrine, but it does, as it seems to me, depart from settled, principles and when once this is done *794there is no longer certainty, for we are drifting without guides or restraints, and may at last reach some such erroneous result, as that to which the departure from settled principles has carried the courts of our sister State.
¡ The underlying principle of agency is that the agent derives his authority from the voluntary appointment of the person whom he represents. No one councilman is appointed by the municipality the agent of the corporation. All the councilmen are so appointed, because all the councilmen when assembled in legal session are the chosen or appointed agents of the whole number of corpor-ators. Individual councilmen are selected by the corporators of particular localities or wards, and it is only when acting in conjunction with councilmen chosen by other wards or localities that they can correctly be said to be agents of the city. The corporators of the municipality ought not to be bound by the acts or omissions of one man with whose appointment they have nothing at all to do. If the converse of the proposition which this opinion endeavors to sustain be true, then it would follow that a councilman from ward one could bind all the inhabitants by the receipt of notice of a defect in a street in ward twenty, although ward twenty was five or twenty miles distant from ward one. It would also follow, we suppose, if the converse of the proposition named be correct, that notice to the most dissolute and unworthy member of the common council, elected from a single ward, would impose a burden upon the inhabitants of a score of other wards, although they had no part in selecting him. Other considerations might readily be suggested in support of the proposition that the common council, as a collective body, are the agents of the city, and that individual councilmen are not, but this discussion has been already too much prolonged, and I shall neither suggest nor discuss them.
Councilmen are not in the continuous employment of the city. Their powers and duties do not require them to devote all their time to the corporate business. There is not the slightest resemblance between the authority of a councilman and that of a general agent, entrusted with the general management of his principal’s affairs. Nor is there any similarity between the authority and duty of a councilman and that of such officers as the mayor, street commissioner, treasurer or clerk, who are constantly and uninterruptedly *795in office for the time for which they were elected, and whose official duties are regular and continuous. The common council must meet in regular session within ten days after their election, § 46, General Act. They must fix regular times for meetings; stated meetings must be held twice in each month, § 47. A majority of the members constitute a quorum for the transaction of business, §—-. Without multiplying citations it may, as I think, be safely affirmed that our statute means that individual councilmen shall be deemed agents of the city only when engaged in some act expressly delegated to them, or when sitting as members of the council convened in lawful session. This conclusion is strengthened by the fact that other officers, such as the mayor, marshal and street commissioners, are continuously in office, charged with ministerial duties, while those of the councilmen are almost exclusively legislative.
It may be broadly granted that ministerial officers have no right to appropriate the money of the corporation to the repair of streets, and the force of the argument be in no respect impaired. The presumption is that the municipal legislature have made and placed within the reach of ministerial officers proper appropriations for guarding and protecting dangerous defects. It is not to be presumed that the councilmen have been derelict in this respect; upon the contrary the presumption is that they have done their duty in this, as in all other official matters.
Municipal corporations are not, as a general rule, bound to repair or improve; there is no such absolute duty resting upon them, but they are bound to make safe dangerous places in the highways. This may be done by placing about the dangerous places barricades or warnings and signals of danger; there is no imperative duty to rebuild or repair. A ministerial officer may well be charged with the duty of placing about a dangerous place the proper barricades or warnings, but one would hardly ascribe such a duty to a legislator. Notice to be effective should be given to the officer charged with the specific ministerial duty and invested with the requisite authority, and not to officers whose duties are never ministerial in the true sense, but always legislative.
The salary or compensation which the statute awards councilmen, shows very clearly that it was not intended that they should *796be general agents continuously representing the city. The compensation is explicitly limited to an annual salary not exceeding one hundred and fifty dollars per annum, and another provision prohibits members of council from directly or indirectly receiving any other compensation. Independently of such a provision, they could not rightfully receive any other compensation than that expressly provided by statute. Smith v. Albany, 61 N. Y. 444. It will hardly be contended that a man of average business capacity or ordinary intelligence could be expected to give all his time and attention to corporate affairs for such a paltry compensation as that prescribed by our statute. If councilmen are not general agents they cannot bind the corporation by admissions, nor will notice to them be effectual as against the municipality. It is well settled that notice to a special agent is not notice to the principal unless the agent was at the time engaged in conducting the transaction in behalf of his principal. Wharton Ev., § 1175. Notice to an individual councilman engaged about his own affairs upon the street, or in the shop, store, or at home, cannot, without doing violence to this settled principle, be deemed notice to the corporation of whose legislative body they are members.
If councilmen are the general agents of the city charged with the duty of receiving and acting upon notice of defects in public highways, then for culpable negligence in failing to perform that duty they are liable to their principal. It cannot be assumed that there exists a duty to act upon notice, without also assuming that for a wrongful refusal or a negligent failure to act, there is the corresponding burden of liability for injury resulting from such wrongful refusal or negligent omission. I cannot bring my mind to the conclusion that for the pitiful compensation provided, the legislature ever intended that there should be any such duty or any such correlative burden. It cannot be successfully asserted that there is such duty but no burden. It is a vain thing to imagine a duty without liability, save only in matters of a judicial nature. Let it once be understood that councilmen owe such a duty accompanied by its inseparable burden, and men of character and responsibility will shun the office, and the government of our cities fall into the hands of the unworthy and irresponsible, reckless alike of duty and liability. The office of councilman should not be in*797cumbered with any such grievous burdens, for it is evidently intended to be one of honor rather than of profit. Possibly, I grant, little of either in most cases.
It seems to me that undue importance is attached to the provision of the statute authorizing five councilmen to call a special meeting. This provision superadds no powers, creates no additional duties; it merely confers authority to call such meetings, for without it there would be no such power. It does not broaden the authority of the agents nor does it increase their liability. This isolated provision ought not, I submit with all possible deference and respect, to be allowed to overthrow the whole body of the statute and strike down long and firmly settled principles. It was never meant to have any such effect. It was not intended to require individual councilmen to carry into workshop, store, office or home their representative character. The burden imposed by such a construction would be almost as annoying to the ordinary man of business as was the “ old man of the sea ” to Sinbad the sailor.
There is no reason growing out of public policy requiring such a rule as that which the court has adopted. Persons who traverse the streets are well protected. Express notice to the chief executive officer, or to the ministerial officer or agent having direct charge of the streets is sufficient to charge the municipality. Not only this, but if the defect has existed for such a length of time as that the corporation ought to have taken notice, it will be held to have had notice. Even more than this, corporate authorities are charged with notice of the probability of material out of which street, bridges and crossings are constructed, to become unsafe by exposure and must take measures to guard against injury from such cause. Surely these rules guard sufficiently the rights of persons who travel upon the public highways, and to add other burdens will be to oppress our public corporations, the corporators of which receive . no personal interest whatever from the rights and powers conferred by the incorporating act.
Notice to councilmen, granting for argument’s sake, the correctness of the theory upon which the majority opinion proceeds, must undeniably be reasonable notice. Reasonable notice to a councilman of a defect and reasonable time for the council as a collective body to act, would of course be allowed. If this proposi*798tion is correct, then the instruction in this case is palpably erroneous, because it utterly ignores the element of the reasonableness of the notice.
I am not, however, for reversal upon this narrow ground, but upon the broader and more important one stated in the preceding pages.