LIABILITY OF WATER COMPANY TO CIT-
IZEN FOR BREACH OF CONTRACT
TO SUPPLY CITY.

A

VERY interesting and important question, under the law of contract, has almost simultaneously arisen and been similarly adjudged in three of the States of the Union. The case may be substantially stated as follows: A company, organized to supply the inhabitants of a city with water, contracted with the municipal authorities to supply their hydrants, but failing to do so, the fire department were unable to extinguish a fire in the city. Held, that the company were not liable in damages to the owners of the property destroyed. This was held in Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24; January, 1878; in Davis v. Clinton Water Works, Iowa Supreme Court, June 15, 1880; and in Foster v. Lookout Water Co., 3 Lea, 42, Tennessee Supreme Court, September, 1879. The first case was cited in the last two. The court in the Connecticut case take the case out of any obligation arising from implied duty, and discuss it solely on grounds of contract. On the point of duty the court said: "A corporation is organized to manufacture woolen goods and sell them in the market. Does this alone create an obligation to manufacture the goods, and supply them to A., whether he pays any thing for them or not?" Answering this in the negative, on the other ground the court said:

"It will be observed that the plaintiffs complained that the defendants did not supply with water the hydrants which had been supplied by the city and the Bridgeport Water Company under their contract, to enable the city through its fire department to perform a public duty which it owed to the plaintiffs and others, to extinguish their fires. Had the plaintiffs' fire been extinguished it would have been done by the fire department; for there is no allegation in the count that the plaintiffs had hose that might have been attached to the hydrants and the fire extinguished by their own efforts. Hence, whatever benefit the plaintiffs could have derived from the water would have come from the city through its fire department. The most that can be said is, that the defendants were under obligation to the city to supply the hydrants with water. city owed a public duty to the plaintiffs to extinguish their fires. The hydrants were not supplied with water, and so the city was unable to perform its duty. We think it is clear that there was no contract relation between the defendants and the plaintiffs, and consequently no duty which can be the basis of a legal claim."

In the Iowa case the court said:

The

contract, or create a privity between her and defendant. It is a rule of law, familiar to the profession, that a privity of contract must exist between the parties to an action upon a contract. One whom the law regards as a stranger to the contract cannot maintain an action thereupon. The rule is founded upon the plainest reasons. The contracting parties control all interests, and are entitled to all rights secured by the contract. If mere strangers may enforce the contract by actions, on the ground of benefits flowing therefrom to them, there would be no certain limit to the number and character of actions which would be brought thereon. Exceptions to this rule exist, which must not be regarded as abrogating the rule itself. Thus, if one, under a contract, received goods or property to which another, not a party to the contract, is entitled, he may maintain an action therefor. So, the sole beneficiary of a contract may maintain an action to recover property or money to which he is entitled thereunder. In these cases the law implies a promise on the part of the one holding the money or property to account therefor to the beneficiary. Other exceptions to the rule, resting upon similar principles, may exist. See National Bank v. Grand Lodge, 98 U. S. 123. The case before us is not an exception to the rule we have stated. The city, in exercise of its lawful authority to protect the property of the people, may cause water to be supplied for extinguishing fires and for other objects demanded by the wants of the people. In the exercise of this authority it contracts with defendant to supply the water demanded for these purposes. The plaintiff received benefits from the water thus supplied in common with all the people of the city. These benefits she received just as she does other benefits from the municipal government, as the benefits enjoyed on account of improved streets, peace and order enforced by police regulations, and the like. It cannot be claimed that the agents or officers of the city employed by the municipal government to supply water, improve the streets, or maintain good order, are liable to a citizen for loss or damages sustained by reason of the failure to perform their duties and obligations in this respect. They are employed by the city and responsible alone to the city. The people must trust to the municipal government to enforce the discharge of duties and obligations by the officers and agents of that government. They cannot hold such officers and agents liable upon the contracts between them and the city."

In the Tennessee case the court said: "If we place the right of recovery upon the negligent performance of a duty, the difficulty will be to connect any duty arising out of the stipulations of the contract between the city and the company, and the particular loss sued for. The stipulation is to furnish water. The company has not stipulated to extinguish fires. It is not averred that the plaintiff had the means of using the water for the extinguishment of the fire. Hence, to use substantially the words of an eminent court, whatever benefit the plaintiff would have derived from the water

would have come from the city through its fire department. The most that can be said is that the company was under obligation to the city to supply the fire plugs with water; that the city owed a public duty to the plaintiff to extinguish the fire; that the fire plugs were not supplied with water, and so the city was unable to perform its duty. We think it clear that there was no contract relation between the plaintiff and the company, and consequently no duty which can be the basis of a legal claim."

The court distinguish the case from that of a public officer or public contractor. The city having been joined as a defendant, the court absolved it from liability, instancing the parallel immunity in cases of misconduct of police officers, agents in a public hospital, and members of a fire department, and in cases of neglect to provide fire apparatus, repair public cisterns, or keep particular hydrants supplied. Citing Tainter v. Worester, 123 Mass. 311; S. C., 25 Am. Rep. 90; Lansing v. Toolan, 37 Mich. 152; Wheeler v. Cincinnati, 19 Ohio St. 19; S. C., 2 Am. Rep. 368.

These decisions find strong support in Atkinson v. Newcastle & Gateshead Water Works Co., L. R., 2 Ex. Div. 241, the circumstances of which were very similar, except that the defendant's charter imposed a penalty for neglect. The court observed:

"That this creates a statutory duty no one can dispute, but the question is whether the creation of that duty gives a right of action for damages to an individual, who, like the plaintiff, can aver that he had a house situate within the company's limits and near to one of their fire-plugs, that a fire broke out, that the pipes connected with the plug were not charged at the pressure required by the section, and that in consequence his house was burnt down. Now, a priori, it certainly appears a startling thing to say that a company undertaking to supply a town like Newcastle with water, would not only be willing to be put under this parliamentary duty to supply gratuitously, for the purpose of extinguishing fire, an unlimited quantity of water at a certain pressure, and to be subjected to penalties for the non-performance of that duty, but would further be willing in their contract with Parliament to subject themselves to the liability to actions by any number of householders who might happen to have their | houses burnt down in consequence; and it is, a priori, equally improbable that Parliament would think it a necessary or reasonable bargain to make. In the one case the undertakers would know beforehand what they had to meet as the consequence of their neglect, they would come under definite penalties; on the other they would virtually become gratuitous insurers of the safety from fire, so far as water is capable of producing that safety, of all the houses within the district over which their powers were to extend."

His lordship then examined the penalties in the statute, some of which were for the benefit of the public and others for the benefit of the water-rates payer, and continued: "Apart, then, from authority, I should say, without hesitation, that it was no part of the scheme of this act to create any duty

which was to become the subject of an action at the suit of individuals, to create any right in individuals with a power of enforcing that right by action; but that its scheme was, having laid down certain duties, to provide guarantees for the due fulfillment of them, and where convenient, to give the penalties, or some of them, to the persons injured, but where not convenient so to do, there simply to impose public penalties, not by way of compensation, but as a security to the public for the due performance of the duty. To split up the 43d section, and to say that in those cases in which a penalty is to go into the pocket of the individual injured there is to be no right of action, but that where no penalty is given to the individual there is to be a right of action, is to violate the ordinary rule of construction. There being here in a certain number of cases a penalty which the plaintiff himself admits excludes the right of action, the conclusion is irresistible that in the remaining cases also in the same section the Legislature intended to give no right of action.

"Now that would have been my opinion apart from authority. Is there then any authority which compels me to depart from that opinion? The only case which was cited to us in support of the plaintiff's contention was that of Couch v. Steel, 3 E. & B. 402. There a seaman of a merchant ship sued to recover damages for injuries sustained by him by reason of the omission of the defendant, a shipowner, to provide proper medicines for the ship company. The declaration in that case was not framed upon any act of Parliament, but on the argument of the demurrer, one of the Merchant Shipping Acts was referred to as creating a duty in the shipowner to provide certain medicines for the benefit of the crew, and the case was put very much as if there had been a parliamentary obligation to provide a great coat or some specific chattel for each particular member of the ship's crew. The same act which created the duty to provide the medicines imposed a penalty recoverable by a common informer for the omission to perform that duty; but it was there held, that notwithstanding the imposition of the penalty, an action lay at the suit of any one of the crew suffering special damage from such omission. With regard to that case, and the effect of that particular act, I will say this, that if the matter were brought before this court for review I should like to take time to consider whether, with reference to that particular act, that case was rightly decided. I will not go further than that, for it is unnecessary here to enter into that question, the act of Parliament under which the present action is brought being of a widely different character, and one which is open to observations which would not apply to the Merchant Shipping Act, which was before the court in Couch v. Steel. But I must venture, with great respect to the learned judges who decided that case, and particularly to Lord Campbell, to express grave doubts whether the authorities cited by Lord Campbell justify the broad general proposition that appears to have been there laid down- that wherever a statutory duty is created,

any person, who can show that he has sustained injuries from the non-performance of that duty, can bring an action for damages against the person on whom the duty is imposed. I cannot but think that that must, to a great extent, depend upon the purview of the particular statute, and the language which they have there employed, and more especially when, as here, the act with which the court have to deal is not an act of public or general policy, but is rather in the nature of a private legislative bargain with a body of undertakers as to the manner in which they will keep up certain public works. The case of Couch v. Steel therefore is no authority to regulate our decision in the present case. I am of opinion therefore that the declaration discloses no cause of action, and that the judgment of the Court of Exchequer must be reversed." Cockburn, C. J., and Brett, L. J., concurred.

It seems to us that Couch v. Steel is distinguishable on the ground that there the obligation was a general one, touching all the inhabitants of the realm, who should choose to "go down to the sea in ships," and not restricted to particular persons, or the residents of a particular place.

CONGRESS AND THE TREATY POWER.

CHAN

BY SAMUEL T. SPEAR, D. D.

HANCELLOR KENT, referring to a treaty of peace made by the President and Senate, says: "If the treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an act of the Legislature, the treaty is morally obligatory upon the Legislature to pass the law, and to refuse it would be a breach of the public faith. The department of the government that is intrusted by the Constitution with the treaty-making power is competent to bind the national faith in its discretion. * * * All treaties made by that power become of absolute efficacy, because they are the supreme law of the land." Kent's Com. (3d ed.), vol. 1, pp. 165, 166.

The same eminent jurist, in his lecture "On the President," further says:

"If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the government, or upon the people at large, so long as it continues in force and unrepealed. The House of Representatives are not above the law, and they have no dispensing power. They have a right to make and repeal laws, provided the Senate and President concur; but, without such concurrence, a law in the shape of a treaty is as binding upon them as if it were in the shape of an act of Congress, or of an article of the Constitution, or of a contract made by authority of law." Id., p. 286.

The substance of the doctrine contained in these extracts may be stated in the two following propositions: (1) That every treaty made by the President of the United States, with the consent and approval of the Senate, is, ipso facto, a supreme law of the land. (2) That if any legislative action on the part of Congress, including the action of the House of Representatives, be necessary for the execution of such a treaty, or any part of it, then it is the duty of Congress to supply this legislation, and thus provide for carrying the treaty into effect, accepting the decision of the treaty power as obligatory and conclusive on this point, and, of course, exercising no discretion as to the expediency or inexpediency of the legislation. On this ground the Chancellor condemns the resolution passed by the House of Representatives in 1796, when the Jay treaty with Great Britain was under consideration.

In regard to the matter involved in both of these propositions, Mr. Justice McLean, in Turner v. American Baptist Missionary Union, 5 McLean, 344, gives the following opinion:

"A treaty under the Federal Constitution is declared to be the supreme law of the land. This unquestionably applies to all treaties where the treaty-making power, without the aid of Congress, can carry it into effect. It is not, however, and cannot be the supreme law of the land where the concurrence of Congress is necessary to give it effect. Until this power is exerthe treaty is not perfect. It is not operative in the cised, as where the appropriation of money is required, sense of the Constitution, as money cannot be appropriated by the treaty making power. This results from the limitations of our government. The action of no department of the government can be regarded as a law until it shall have all the sanctions required by the Constitution to make it such. As well might it be contended that an ordinary act of Congress, without the signature of the President, was a law as that a treaty which engages to pay a sum of money is in itself a law. And in such a case the representatives of the people and the States exercise their own judgment in granting or withholding the money. They act upon ity of the treaty making power. their own responsibility, and not upon the responsibil It cannot bind or control the legislative action in this respect, and every foreign government may be presumed to know that so far as the treaty stipulates to pay money the legislative sanction is required."

This supposes that some treaties may require the legislative action of Congress for their execution. Such treaties, according to Mr. Justice McLean, are "not perfect," and not supreme laws, and "not operative in the sense of the Constitution," until the requisite legislation shall be had; and, as to the question of such legislation, the two houses of Congress are to exercise their own judgment, and act upon their own responsibility, and not upon that "of the treaty making power." This right of Congress every government, in making a treaty with the United States, may be presumed to know.

Chief Justice Marshall, in stating the opinion of the court in Foster v. Neilson, 2 Pet. 253, said:

A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any legislativo provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not to the judicial department; and the Legislature must execute the contract before it can become a rule for the court."

This opinion was subsequently referred to and reaffirmed in United States v. Arredondo, 6 Pet.691, and again reaffirmed in United States v. Perecheman, Pet. 51. Some treaties, according to this opinion, require no legislation for their execution; and when this is the fact a treaty is equivalent to an act of Congress, being a part of the supreme law of the land, and, of course, a rule to guide the action of a court. Other treaties require legislation for their execution, because their terms import contracts to be fulfilled in futuro; and treaties of this character must be legislatively executed before they become operative as laws or a guide for courts. Whether a treaty belongs to one or the other of these classes is to be determined by examining its terms. In the one case it is a law of itself as soon as duly made, and in the other it "addresses itself" to the legislative and not to the judicial department of the government, and must await its affirmative action before it can become the rule of a court.

In The Matter of Metzger, 1 Barb. 248, Judge Edmonds remarked: "This case involves the question whether the President of the United States has authority, by virtue of mere treaty stipulations, and without an express enactment of the National Legislature, to deliver up to a foreigu power and virtually banish from the country an inhabitant of one of the sovereign States of our confederacy." He answered this question in the negative, holding that "a treaty containing provisions to be executed in futuro is in the nature of a contract, and does not become a rule for the courts until legislative action shall be had on the subject," and that "the treaty with France of 1843, providing for the surrender of fugitives from justice, cannot be executed by the President of the United States without an act of Congress." Judge Edmonds here repeats the opinion stated by Chief Justice Marshall, and applies it to the extradition treaty of 1843 with France. This decision, rendered in 1847, was followed in 1848 by an act of Congress, entitled "An act for giving effect to certain treaty stipulations between this and foreign governments for the apprehension and delivering up of certain offenders." 9 U. S. Stat. at Large, 302.

The doctrine of Chancellor Kent that a treaty is ipso facto a law of the land, and, because it is such, of "absolute efficacy" to bind the will of Congress to legislate for its execution, provided such legislation be necessary, is not sustained, but rather reversed and contradicted by those judicial authorities. Mr. Justice McLean says that if the treaty needs legislation it is not a law, and "not operative in the sense of the Constitution" until the legislation shall be furnished. Chief Justice Marshall says that upon this supposition the treaty is not a rule for courts until the Legislature executes the contract. Judge Edmonds sustains the same doctrine. Such a treaty being simply a contract, and not a law, "addresses itself" to Congress, and as to the question whether Congress shall furnish the necessary legislation for its execution, the two houses, according to Mr. Justice McLean, have the right to judge upon their own responsibility.

This, in the case supposed, undermines the very foundation from which Chancellor Kent reasoned. He assumed that "all treaties" made by the President and Senate are "of absolute efficacy, as supreme laws of the land, and as binding upon the will of Congress as the Constitution itself. But, according to these authorities, treaties that require legislation are not laws at all until the proper legislation is had, and, of course, they do not bind as laws before they possess this character. They are simply contracts, made by the treaty power, but requiring the action of another department of the government to give them the character of laws.

Mr. Wheaton, having stated the general principle that a treaty duly ratified is obligatory upon the contracting parties, "independently of the auxiliary legislative measures which may be necessary on the part of either in order to carry it into complete effect," proceeds to say:

"Where, indeed, such auxiliary legislation becomes necessary in consequence of some limitation upon the treaty making power expressed in the fundamental laws of the State, or necessarily implied from the distribution of its constitutional powers-such, for example, as a prohibition of alienating the National domain-then the treaty may be considered as imperfect in its obligation until the national assent has been given in the forms required by the municipal Constitution." Lawrence's Wheaton, p. 457.

This is a very important qualification, especially in its application to treaties made by the United States. The Constitution lodges the treaty making power in the President and the Senate; but it does not lodge in them the power to enact the laws which may be necessary to carry a treaty into execution. It gives this

power to Congress, including the House of Representatives, and making its action essential to such legislation. The President and the Senate cannot legislatively execute the treaty which they have the power to make, but which cannot be executed without legislation. The action of the House of Representatives, as one branch of Congress, here becomes indispensable. The Constitution itself establishes this necessity.

Senator Macon, of North Carolina, in the debate in the Senate on the treaty making power, in 1816, remarked: "Every government, treating with another, is supposed to understand the treaty making power of the government with which it treats, no matter where lodged, whether in the Executive alone or in the Executive and Legislature jointly." Benton's Abridg., vol. 5, p. 456. So, also, Senator Campbell, of Tennessee, in the same debate, said: "At the time the treaty is formed, the nature of the governments, parties to it, is known; and the confidence reposed in the fulfillment of its stipulations must depend on the reliance placed in the national faith which is pledged by it. Each party agrees to it with a distinct understanding that its full execution depends on the concurrence of the proper departments in each government in adopting the requisite legal provisions for carrying its stipulations into effect and knowing at the same time that if one party fails to execute its provisions the other is no longer bound thereby." Id., p. 458. "He who contracts with another," says Ulpian, "knows or ought to know his condition." If so, then every government, in making a treaty with the United States, may be presumed to know that although the President and the Senate have power to make a treaty, they are without power to enact any laws for its execution. The Constitution itself is a distinct notification of this fact to the whole world.

It is true that the treaty power, in the terms of the grant, is general, without any restriction in these terms as to the subjects upon which it may be exercised, and also true that a treaty, duly made and selfexecuting in the sense of requiring no legislation to carry it into effect, is, ipso facto, a supreme law of the land. But it does not follow that the treaty power is an unlimited power, or that when a treaty needs legislation to make it "perfect," it can so bind the action of both houses of Congress as to exclude all discretion on their part, and leave nothing for them to do but simply register the decree of the treaty power, without any inquiry into its expediency or inexpediency. The treaty power surely cannot subvert the Constitution itself. It cannot repeal its fundamental principles in respect to the judicial power of the United States, either as to the courts in which this power shall be vested or as to the cases and controversies to which it shall extend. It cannot change the State governments or alter the boundaries of the States, or dislodge them from their position as members of the Union, or from the exercise of their rights as such. Mr. Justice Story, in referring to this power, says:

"But though the power is thus general and unrestricted, it is not to be so construed as to destroy the fundamental laws of the State. A power given by the Constitution cannot be so construed as to authorize the destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it, and cannot supersede or interfere with any other of its fundamental provisions. Each is equally obligatory and of paramount authority within its scope, and no one embraces the right to annihilate any other." Story's Const., § 1508.

The same Constitution that grants the treaty power to the President and the Senate also provides for a Congress of the United States, composed of a Senate and House of Representatives, and declares in general terms, that "all legislative powers herein granted shall be vested in " this Congress. It enumerates in positive