City of Jacksonville v. Drew-Opinion of Court. independent, competent and skilled workman, and that said contract did not require the performance of work intrinsically dangerous, and that said contractor was not under the control or subject to the management or directions of defendant; and that defendant had no control as to the manner in which said contractor did his work, or in the selection of his employees, and could neither engage or discharge any workman, and was not the immediate supervisor of the contractors or those persons engaged in the work; and this the defendant is ready to verify. Wherefore defendant prays judgment if the plaintiff ought to have his aforesaid action against defendant. The other facts are sufficiently stated in the opinion. John E. Hartridge for Plaintiff in Error. Julius Drew for Defendant in Error. MR. JUSTICE VAN VALKENBURGH delivered the opinion of the court. In May, 1881, Columbus Drew, Jr., brought his action against the City of Jacksonville for demages incurred by him by reason of a defective bridge over Hogans' Creek in the said city, which defendant was bound to keep in repair, claiming damages in the sum of five hundred do!lars. Defendant pleaded not guilty, and the plaintiff duly replied. Subsequently and in November, A. D. 1881, the defendant, by leave of the court, filed another plea alleging that the said Hogans' Creek Bridge was being repaired under an independent contract with the Trustees of the Sanitary Improvement Bonds of the said city, a separate and independent body, by one J. C. Cloud, an independent, competent and skilled workman; and that said contract did not require the performance of work intrinsically dangerous; and that said contract was not under the con City of Jacksonville v. Drew-Opinion of Court. trol or subject to the management or direction of defendant; and that defendant had no control as to the manner in which said contractor did his work, or in the selection. of his employees, and could neither engage or discharge any workman, and was not the immediate supervisor of the contractors or those persons engaged in the work. To this second plea the plaintiff demurred, and the demurrer was sustained and the plea overruled. The defendant thereupon excepted. On the thirteenth of December, A. D. 1881, the cause was tried by a jury, who found a verdict for the plaintiff for three hundred dollars damages besides costs. On the same day a motion for a new trial was made and denied by the court. On the same day the plaintiff's attorney entered a remittitur for the sum of fifty dollars on the said judgment. The defendant brought its writ of error, and assigns the following ground: "The court erred in sustaining the demurrer of Columbus Drew, Jr., Defendant in Error, to the second plea of the City of Jacksonville, Plaintiff in Error. " The demurrer admits the truth of this plea. The only question presented by this appeal is whether the City of Jacksonville, under the circumstances as presented in the second plea so stricken out on demurrer, is liable in damages to the Defendant in Error for injuries received by reason of the dilapidated condition of Hogans' Street Bridge. The city, by the general act of incorporation, is invested with the control and regulation of the streets, lanes, alleys, bridges, ferries, &c., within its boundaries, but they seek to evade their liability in this case by alleging that "the Trustees of the Sanitary Improvement Bonds of the city, a separate and independent body," made a contract for the repair of the Hogans' Creek Bridge with one J. C. Cloud, over whom the said city had no control. This independent body, "The Trustees of the Sanitary Improve City of Jacksonville v. Drew-Opinion of Court. ment Bonds," is probably a body consisting of citizens of the City of Jacksonville, appointed by the Common Council of said city, and their duties and powers established and defined by the ordinances of the municipality, as we find no general law creating such body. In other words, they must be the creatures of and subject to the control of the corporation. They must derive their power and authority from the City of Jacksonville, and if so, they are responsible only to the said city. They are then the agents and servitors of that corporation, and as such, within the scope of their authority, would bind the corporation. Their act in contracting with Cloud for the repair of the bridge would be as much the act of the corporation as if such contract had been entered into by the Mayor or other authorized agent of the corporation. In the language of the Supreme Court of the United States in Barnes vs. The District of Columbia, 91 U. S. R., 540: "A corporation can only act by its agents or servants. This obvious truth does not imply that the act must be done by inferior or subordinate agents, but, on the contrary, the higher the authority of the agent the more evident is the responsibility of the principal. * * * A municipal corporation may act through its Mayor, through its Common Council, or its legislative department by whatever name called, its Superintendent of Streets, Commissioner of Highways, or Board of Public Works, provided the act is within the province committed to its charge; nor can it in principle be of the slight consequence by what means these several officers are placed in their position-whether they are elected by the people of the municipality or appointed by the President or a Governor. The people are the recognized source of all authority, State and municipal, and to this authority it must come at last, whether immediately or by a circuitous process." This case of Barnes vs. The District of Co City of Jacksonville v. Drew-Opinion of Court. lumbia, supra, was an action to recover damages for a personal injury received by the plaintiff in consequence of the defective condition of one of the streets of the City of Washington. By an act of Congress passed in February, 1871, the municipal corporation, "The District of Columbia," was created, with the right to exercise all the powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of the act so creating it. By one of the sections of the act a Board of Public Works was constituted, consisting of persons appointed by the President of the United States with the consent of the Senate. This Board had entire control of the streets, avenues, alleys, &c., of the City of Washington. They held their office for a fixed period of time, and could not be removed except by the President. It was contended on the argument that this Board of Public Works was an independent body, acting for itself, not forming a part of the corporation, and that therefore the corporation was not responsible for its acts. The court held. that the body thus organized under that act, including the Board of Public Works, was a municipal corporation, and that the proceedings of that body in the repair and improvement of the street, out of which the accident in question arose, were the proceedings of such corporation, and that it was responsible for the injury. In the case at bar "The Trustees of the Sanitary Improvement Bonds" must have been a part of the municipal corporation, made so by the acts of the corporation itself, and not deriving authority from law outside of the act of incorporation or from an appointing power other than the City of Jacksonville itself. In this respect it is stronger than the case above cited, where the Board of Publie Works made a part of the corporation, and for whose neglect it was held liable, was City of Jacksonville v. Drew-Opinion of Court. appointed by the President of the United States with the consent of the Senate. The case of Bailey vs. The Mayor, &c., of N. Y., 3 Hill, 531, which was carried to the Court of Errors and is found in 2 Denio, 433, is a leading authority upon this question. In 1834 the Legislature of the State of New York enacted a law to provide the City of New York with pure and wholesome water. It was provided in the law that the Governor should appoint five persons to be known as Water Commissioners. They were to examine all the matters relative to that subject, employ engineers, adopt such plan for procuring such supply of water as they deemed most advantageous, to ascertain the amount of money needed, to make conditional contracts for purchase of the land necessary, subject to the ratification of the Common Council, &c. Under this law a plan was prepared and approved by the citizens of New York, money was raised and the work was entered upon. These Water Commissioners, so appointed by the Governor, entered into a contract with the firm of Crandall and VanZandt for building a dam across the Croton river according to certain plans and specifications annexed to the contract. This dam was subsequently swept away, and property of the plaintiff to the value of sixty thousand dollars was destroyed. In that case, as in this. the defendants insisted that they had no direction or control of the Water Commissioners, as they were appointed by the State; that they were bound to submit to the independent exercise of their powers; that the Commissioners were officers of the State, engaged in the discharge of public duties; that they were answerable for their official conduct to the State alone, who alone could remove them at their pleasure. The court held that the Water Commissioners were the agents of the corporation, and that the |