exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy."

Reasons for.

It is familiar law that no action lies against the state for the neglect or misconduct of its officers; therefore none lies against the county, which is but an arm of the state for general administration; while a municipal corporation, being a voluntary organization for the special benefit of its people, is liable in many particulars for the neglect of its agents to perform official duty, resulting in injury to individuals.22 The Ohio case above cited has been very generally followed in the courts of the United States for the past half century, and may be regarded as established law with regard not only to coun

22 Judge Dillon, in his Commentaries on the Law of Municipal Corporations, vol. 2, § 966 (4th Ed.), says: "As respects municipal corporations proper, whether specially chartered or voluntarily organized under general acts of the character alluded to, it is, we think, universally considered, even in the absence of statute giving the action, that they are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties; and it is the almost, but not quite, uniform doctrine of the courts that they are also liable where the wrong resulting in an injury to others consists in a mere neglect or omission to perform an absolute and perfect (as distinguished from a legislative, discretionary, quasi judicial, or imperfect) corporate duty." And, further: "What is termed a quasi corporation, though possessing full corporate capacity and a corporate purse, is not impliedly liable for acts of misfeasance or neglect of public duty on the part of its officers and agents, while for the same or a similar wrong there is such a liability resting on municipal or chartered corporations."

In City of Chicago v. Railroad Co., 105 Ill. 73, Sheldon, J., said: "We recognize the doctrine to be that the unauthorized acts of municipal officers are regarded as the acts of the corporation, provided the acts are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which the particular act relates."

ties, but also to all other quasi corporations.28 The Ohio court rested its decision particularly upon the reason that the county had no fund out of which satisfaction could be made, and upon the authority of the leading English case of Russell v. Men of Devon,* the authority of which has been generally

28 Larkin v. Saginaw Co., 11 Mich. 88, 82 Am. Dec. 63; Lesley v. White, 1 Speers (S. C.) 31; Carroll v. Board, 28 Miss. 38; Soper v. Henry Co., 26 Iowa, 264; Board of Chosen Freeholders Sussex County v. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530. In MOWER V. LEICESTER, 9 Mass. 247, 6 Am. Dec. 63, which was an action against a town for an injury caused by a defect in a highway, Gray, C. J., says: "It is well settled that the common law gives no such action. Corporations created for their own benefit stand on the same ground, in this respect, as individuals. But quasi corporations, created by the legislature for purposes of public policy, are subject, by the common law, to an indictment for the neglect of duties enjoined on them; but are not liable to an action for such neglect, unless the action be given by some statute." See HILL v. BOSTON, 122 Mass. 344, 350, 23 Am. Rep. 332; WEIGHTMAN v. WASHINGTON CORP., 1 Black, 39-53, 17 L. Ed. 52; Beardsley v. Smith, 16 Conn. 375, 41 Am. Dec. 148; Town of Union v. Crawford, 19 Conn. 331; Chidsey v. Canton, 17 Conn. 475; Titler v. Iowa Co., 48 Iowa, 90; Sherbourne v. Yuba Co., 21 Cal. 113, 81 Am. Dec. 151; Lorillard v. Monroe, 11 N. Y. 392, 62 Am. Dec. 120; State v. Hudson Co., 30 N. J. Law, 137; Kincaid v. Hardin Co., 53 Iowa, 430, 5 N. W. 590, 36 Am. Rep. 236; Hollenbeck v. Winnebago Co., 95 Ill. 148, 35 Am. Rep. 151.

In Indiana it is imperative upon the county to keep bridges in repair. It being empowered to appropriate money for that purpose, it is held impliedly liable for damages sustained by a traveler from a county bridge negligently allowed to remain out of repair. House v. Commissioners, 60 Ind. 580, 28 Am. Rep. 657; Abbett v. Johnson Co., 114 Ind. 61, 16 N. E. 127; Board of Knox County Com'rs v. Montgomery, 109 Ind. 69, 9 N. E. 590. And in the New England States the doctrine does not apply to the towns where the duty is private or corporate, as distinguished from public; nor in the case where the wrongful act is in the nature of a trespass upon the property rights of others. Ball v. Winchester, 32 N. H. 435, explained and limited by Gilman v. Laconia, 55 N. H. 130, 20 Am. Rep. 175. See, also, Weed v. Greenwich, 45 Conn. 170.

*RUSSELL v. MEN OF DEVON, 2 Term R. 667.

24

recognized by the courts of this country. Whether placed upon one ground or the other, or upon both, it may be regarded as the settled law of the land, and the same reasoning which applies to counties may be applied with greater force to other quasi corporations, all of which save the New England town, are of lower grade than the county. The same doctrine has also been repeatedly stated by the courts of New England in the decisions of cases brought against towns to recover damages for injury resulting from the neglect of town officials. 25

24 MOWER v. LEICESTER, 9 Mass. 247, 6 Am. Dec. 63; White v. City Council, 2 Hill (S. C.) 571; WARD v. HARTFORD CO., 12 Conn. 404; Fowle v. Common Council, 3 Pet. (U. S.) 409, 7 L. Ed. 719; Morey v. Newfame, 8 Barb. (N. Y.) 645.

25 In Bigelow v. Randolph, 14 Gray, 541, where a town in Massachusetts had assumed the duties of a school district, and a scholar attending the public school was injured by reason of a dangerous excavation in the schoolhouse yard, owing to the negligence of the town officers, it was held that the town was not liable.

In the case of EASTMAN v. MEREDITH, 36 N. H. 284, 72 Am. Dec. 302, the material facts were that the town of Meredith (defendant) built a townhouse, in which, among other things, to hold town meetings; the house, by reason of the negligence of those constructing it for the town, was defectively built, and the flooring gave way during a session of the town meeting, and the plaintiff was injured while in attendance upon said meeting. It was held that the plaintiff could not recover; and this decision was based mainly upon the ground, above stated, that a statute is necessary. It has been uniformly so ruled in New England since the early cases of Riddle v. Proprietors, 7 Mass. 169, 5 Am. Dec. 35, and MOWER v. LEICESTER, 9 Mass. 250, 6 Am. Dec. 63, in cases to subject towns to a civil action for neglect to perform a public duty.

DISTINGUISHING ELEMENTS.

9. Quasi corporations, notwithstanding the variety of their objects and functions, have other elements in common distinguishing them from municipal corporations proper and other bodies, and attaching them to this class of public corporations, among which are the following:

(a) They have no charters.

(b) They are involuntary organizations created by the sovereign power of the state of its own sovereign will, without the request and regardless of the wishes of the inhabitants.

(c) They are created exclusively for purposes of civil administration.

(d) They do not possess all the common-law powers implied from and incidental to corporate existence, but such only as are implied from the powers expressly granted, and the duties imposed upon them by statute or usage.

Quasi corporations are usually erected in pursuance of general law, applicable alike to all parts of the state,20 and the powers conferred and the duties imposed upon each class of them are specified in the general law. Counties, though created and bounded by special statute, obtain their powers and functions from, and are charged with their duties by the general law, and none of these bodies can exist except under legislative enactment. But they are not required to possess, nor do they have, that documentary evidence of authority from the state presumed to be held by full corporations as evidence of their rights and powers.27

Popular Assent.

Private corporations can only be established by the assent and co-operation of the members. Municipal corporations may be, but rarely are, erected without the request or consent of the

26 CITY OF GALVESTON v. POSNAINSKY, 62 Tex. 118, 50 Am. Rep. 517.

27 Cooley, Const. Lim. (6th Ed.) pp. 294, 295.

inhabitants of the proposed municipality. Quasi corporations are "superimposed by the sovereign and paramount authority" 28 of the state as agencies for civil government, without the request of the people of the locality, and whether they may wish them or not. "Whether they shall assume the duties or exercise the powers conferred, the people of the political division are not allowed the privilege of choice. The legislature assumes such division of the state to be essential in republican governments, and the duties are imposed as part of the proper and necessary burden which the citizens must bear in maintaining and perpetuating constitutional liberty."

Local Benefits.

" 29

Under our form of government, the sovereign power over public affairs not committed to the federal government belongs to the state. Our theory is that the people rule; they ordain laws through their state legislatures for the purposes of local government. For the enforcement of these laws and the administration of public affairs, various instrumentalities are required. Local self-government is a cherished inheritance of the Anglo-Saxon. To effect this, local agencies are essential, and counties, towns, districts, and local boards have been established for the more efficient administration of general laws throughout the state. They are not created for the special benefit of the people of the locality, but to insure the execution. of the sovereign will in all parts of the state, and thereby promote the general welfare.30 It results, of course, that the peo

28 HAMILTON CO. COM'RS v. MIGHELS, 7 Ohio St. 109. See, also, HARRIS v. SCHOOL DIST., 8 Fost. (N. H.) 58.

29 Cooley, Const. Lim. (6th Ed.) pp. 294, 295. See, also, Scales v. Chattahoochee Co., 41 Ga. 225; Granger v. Pulaski Co., 26 Ark. 37; Palmer v. Fitts, 51 Ala. 489.

30 In HAMILTON CO. COM'RS v. MIGHELS, 7 Ohio St. 109, already cited, Brinkerhoff, J., said: "A county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially