The Commissioners of Jefferson County v. The People.

we do not see how the circumstance that a bond had been given, securing the same money, can detract from its validity. Should an individual volunteer to secure a sum of money in itself properly leviable by way of tax on a town or county, there would be nothing in the nature of such an arrangement which would preclude the legislature from resorting, by way of tax, to those who are primarily, and more justly liable."

In Kirby v. Shaw, 19 Penn. State, 258, where, under an act of the legislature, approved April 3, 1848, the commissioners of Bradford county were required to add $500.00 annually, until 1857, to the ordinary taxes of the borough of Towanda, for the purpose of erecting a court-house and jail in that borough, the act was held to be constitutional.

In the case of Miller and Swan v. Graham and Smith, 17 Ohio State, 1, where, under the act of March 24, 1859, "To provide for locating, establishing, and constructing ditches, drains, and water-courses," the defects and errors in the proceedings were fatal to their validity; but, after the taking effect of the act of March 24, 1864, supplementary to the act of March 24, 1859, the court refused to enjoin the collection of an assessment to pay for making a ditch, but remanded the cause to the district court, with instructions to permit the parties to show wherein they had been injured by the failure of the commissioners to comply with the law.

The answer in the case states:

1st. That the writ does not state facts sufficient to authorize a recovery.

2d. That the act of February 2, 1875, is unconstitutional and void.

3d. That the warrants in question were issued without authority of law, and without any consideration, and are fraudulent and void.

4th. That, on the twelfth day of May, 1873, the

The Commissioners of Jefferson County v. The People.

relator commenced an action on the warrants in question in the district court of Jefferson county, to which the defendants filed an answer, setting up a perfect defense. The action referred to was dismissed without prejudice, on the twelfth day of May, 1875.

Section 28, chapter 9, revised statutes of 1866, in force at the time this contract was entered into, provides that "said commissioners shall have authority and power to provide for the erection and repairing of court-houses and jails, and other necessary buildings for the use of the county; and to carry out the provisions of this section, they shall have power to make contracts, on behalf of the county, for the building and repairing of the same." The authority to make the contract in question is here explicitly given, and, so far as the record discloses, there has been no abuse of that authority. There is nothing in the record to show the valuation of the real and personal property of Jefferson county, for the year 1872; nor are we informed of the amount required to be raised by taxation for "ordinary county revenue," for that year; although there was levied for "county general fund" six mills on the dollar, for "court-house fund " five mills on the dollar, etc. There is no such fund known to the law as the "court-house fund." Buildings of this kind should be paid for out of the fund derived from "ordinary county revenue," and, so far as the record discloses, warrants could have been drawn on that fund for the amount due.

If any valid defense existed against the payment of these warrants, it should have been set up by a statement of the facts constituting the alleged defense in the answer in this action; but nothing of the kind is attempted. No issue is raised as to the amount due the contractors. The commissioners issued warrants for the amount they considered to be due, and no foundation is laid to disturb their finding.

Palmer v. The City of Lincoln.

That Jefferson county is justly indebted to the relator for the amount of the warrants in question, will not be controverted; and, where such is the case, there is no doubt of the power of the legislature to require the county to issue its bonds for the amount of its indebtedness.

The provisions of the law, that the bonds shall not be sold for less than ninety cents on the dollar, are for the protection of the county; but it is the duty of the commissioners to sell the bonds for the highest price that can be obtained.

The judgment of the district court is clearly right, and must be affirmed.

JUDGMENT AFFIRMED.

A. L. PALMER, PLAINTIFF IN ERROR, V. THE CITY OF
LINCOLN, DEFENDANT IN ERROR.

Master and Servant: LIABILITY OF MASTER FOR NEGLIGENT ACTS OF SERVANT. Where an obstruction in a street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do the work is equally liable to the injured party.

ERROR to the district court for Lancaster county. Tried below before POUND, J. The opinion states the case.

M. H. Sessions, for plaintiff in error.

I. The doctrine as finally settled in this country by the clear weight of authority is, that when one person contracts with another, who is a skillful, competent, and

Palmer v. The City of Lincoin.

reliable person, for the doing of a piece of work or job, the performance of which is not in itself a nuisance, and the contractor has the entire control and management of doing said work or job to the exclusion of the employer, he in no wise interfering in the execution of the same, or in the employment of the men in the performance of the same, is not liable to third parties for injuries to such par ties by the contractor's negligence. The true test in determining the question is, did the relation of contractor and contractee exist between the employer and the employe! and did the employer retain the power of controlling the work? If the relation of contractor and contractee did exist, and the employer did not retain the power of controlling the work, then he is not liable for such injuries. The principle of respondeat superior has no application. Wharton on Negligence, section 181 and 817. Hilliard v. Richardson, 3 Gray, 349. Brackett v. Lubke, 4 Allen, 139. DeForrest v. Wright, 2 Mich., 368. Cincinnati v. Stone, 5 O. S., 38. Cuff, Admr., v. R. R. Co., 35 N. J. Law, 17. Boswell Laird, 8 Cal., 469. Meyer v. R. R. Co., 2 Neb., 319.. Van Wert v. City of Brooklyn, 28 How. Prac., 451. Eaton v. R. R. Co., 59 Me., 521. Callahan v. B. & M. R. R. Co., 23 Iowa, 562. Kellogg v. Payne, 21 Iowa, 575.

v.

II. But it is contended that when the contract between the contractor and contractee contains a stipulation for the performing of the work, which was the cause of the injury complained of, that then the contractee does become liable, and the rule of respondeat superior obtains. In other words if the contract be for the entire erection of the building, and that involves the digging of an excavation in the proper erection of the same, and the contractor negligently and carelessly leaves the same unguarded so that a stranger falls into the same and

Palmer v. The City of Lincoln.

receives injuries, that in that case the rule of respondeat superior obtains, and the employer is liable.

That there are cases that make this distinction and so hold is not disputed; but that such is the weight of authority, or that it is sound in principle, is denied. Blake v. Ferris, 5 N. Y., 48. Pack v. The Mayor, etc., 8 N. Y., 222. Kelly v. The Mayor, etc., 11 N. Y., 432. Scammon v. Chicago, 25 Ill., 424. Painter v. Pittsburg, 46 Penn. State, 213. Blackwell v. Wiswall, 24 Barb., 355. Barry v. St. Louis, 17 Mo., 121. Du Pratt v. Lick, 38 Cal., 691. Overton v. Freeman, 73 E. C. L., 866. Williard v. Tatham, 57 Penn. State, 374.

Cobb, Marquett & Moore, for defendant in error.

I. The liability of Palmer arises, first, from the fact that he is the author of the excavation that caused the injury; second, that the law imposes on every one who causes a hole to be made in a sidewalk to see that it is made safe for the public. Palmer being the owner of the adjacent lot is the ultimate superior; he alone can determine that the excavation shall be made, and by causing the same to be made he incurs the obligation to the public to see that the same is so guarded or fenced that persons will not be injured.

II. The party that causes the injury ought to be the person who responds in damages for the injury so caused. Shearman & Redfield on Negligence, 84, p. 107. Wharton on Negligence, 186. Dillon's Mun. Corp., 793, 794, 795. Chicago v. Robbins, 2 Black, 418. Id., 4 Wall., 657. Detroit v. Corey, 9 Mich., 165. Storrs v. Utica, 17 N. Y., 104. Congreve v. Smith, 18 Id., 83. Milford v. Holbrook, 9 Allen, 17. Littleton v. Richardson, 32 N. H., 59. City of Brooklyn v. City R. R. Co., 47 N. Y., 475. Wood v. Mears, 12 Ind., 515. Rowell v. Williams, 29 Iowa, 212. Portland v. Richardson, 54 Maine, 46.