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time. Wherever there is need the state may, at common law, conscript citizens to form a posse, to assist in making arrests, to report cases of contagious disease, to extinguish conflagrations,19 and even to serve in a permanent fire department.20 Attorneys may be compelled to defend poor persons in courts of law.21 It is clear that in any emergency, whether one that has arisen in the past or not, citizens may be conscripted to avert danger to the state.22 Compulsory arbitration, involving conscription for a limited period, may likewise be instituted, as has been done by recent legislation in this country.23 Nor is there any need for compensation, at common law, for any service thus compelled by the state.24

There are, indeed, no limitations upon the state's conscripting power at common law other than the state's need for, or, more accurately, benefit from the conscription. The benefit must, of course, be so great as to outweigh the detriment to the state that interference with the individual will necessarily cause. In determining the benefit that will flow from the conscription, and hence its legality, the possibility of a species of sabotage should be considered seriously. The man compelled to serve may work positive injury to the state while ostensibly he is serving it; or (and this is a more likely contingency) he may either neglect entirely or perform inefficiently the duties which have thus been thrust upon him. It may be urged that, although the state may conscript for what is historically a governmental purpose, it cannot do so for purposes of a (historically) non-governmental business in which the state may have engaged. Such a distinction, however, would be fundamentally unsound, for if the public interest warrants the carrying on of the business by the state, it may also warrant the state's conscription to support it.?

The limitations on civil conscription which are peculiar to the United States are likewise few.26 The Sixth Amendment to the Constitution of


19 For these four emergency services, see FREUND, THE POLICE POWER, 614.
20 See Kansas City v. Whipple, supra.
22 For example, work upon a Mississippi levee could certainly be compelled.

At the time of the great coal strike of 1902-03, it was ably argued that the state (having taken over the coal mines) could conscript men to run them. T. A. Sherwood, “Power of the State to Operate Coal Mines and Conscript Men for that Purpose when Necessary to Avert a Public Calamity,” 57 CENT. L. J. 25, 28. Mr. Sherwood rightly bases the power to conscript upon the state's “inherent power to prevent its own destruction."

23 Colorado has forbidden employees in "any industry affected with a public interest" to strike “prior to or during an investigation, hearing, or arbitration of the dispute by the State's arbitration commission. 1915 SESSION LAWS OF COLORADO, 578. Cf. the strong recommendations of compulsory arbitration of railway disputes in the President's Message to Congress, December 5, 1916. So, also, employees may be restrained from quitting labor at a time when injury to the state will ensue.

2 WILLOUGHBY, CONSTITUTIONAL LAW OF THE UNITED STATES, $ 459. In many states statutes provide that railway employees shall not quit work, on a strike, elsewhere than at a place of destination. FREUND, THE POLICE POWER, $ 333.

24 “Since in all these cases the duty is general, no compensation is due.” FREUND, THE POLICE POWER, $ 614. See also Š 613. For cases where the rights of private property must yield to the general interest, without compensation, see 2 KENT, COMMENTARIES ON AMERICAN LAW, 12 ed. (Holmes), 339.

25 Cf. the conscription to run the railways of France, both state-owned and privatelyowned, in note 5, supra. It is but a short time since this country was confronted with a similar situation, which was, however, met in a different way. See 30 Harv. L. Rev. 63.

20 Perhaps here it should be observed that the institution of a system of probation in


the United States expressly provides for compulsory witness service in certain cases.27 Conscription to serve the state's needs is neither slavery nor involuntary servitude, within the meaning of the Thirteenth Amendment.28 And although a citizen's right to dispose of his own labor as he desires has been construed to be included both in "liberty” 29 and in " property," 30 as used in the Fourteenth Amendment, yet conscription by the state has never been regarded as a deprivation 31 of either liberty or property (since it is a general burden, and inures to the general welfare). A more intricate question than these is raised by the possibility of conscription by a State 32 for a purpose not in harmony with the interests of the United States. The most incisive example of such a State conscription is the military conscription instituted by Alabama, Mississippi, and other States 83 in the course of the Civil War.34 Such a conscription is, of course, unconstitutional. The converse of this situation is presented when the United States conscripts to the injury of a State. In such a case, if the conscription is for the national welfare (as it would have to be to be otherwise lawful), it should be lawful notwithstanding the injury to the State.35 Even in the United States, the certain limit to criminal proceedings may permit, and in some cases already has permitted, trial courts lo enforce conscription, both military and civil. The constitutionality of such judgeimposed compulsions has not yet been attacked, although the policy of the military conscriptions has been vehemently assailed. See frequent comment in the issues of the ARMY AND NAVY JOURNAL, 1915 and 1916. It should be noticed that although the probation may be both cruel and unusual (cf. Boston EVENING TRANSCRIPT, November 24, 1916, for a court order to hear Billy Sunday preach), it is not a punishment, but merely the condition of withholding punishment. Conscription through a probation order thus differs from other conscriptions in that it is made effective through an independent threat.

37 See note 17, supra.

28 Butler v. Perry, supra. In this case a Florida statute requiring labor for two days in each year upon the public roads was held constitutional. The court said (p. 333) that the Thirteenth Amendment “introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, or on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of its essential powers.” See also Robertson v. Baldwin, 165 U. S. 275, especially the dissenting opinion of Harlan, J., at p. 298.

Cf. Dennis o. Simon, supra, where conscription to build the public roads was held not to be such involuntary servitude as the State bill of rights prohibited.

29 Allgeyer v. Louisiana, 165 U. S. 578.

80 Adair v. United States, 208 U. S. 161, 172. See Coppage v. Kansas, 236 U. S. 1, 14; 2 WILLOUGHBY, CONSTITUTIONAL LAW OF THE UNITED STATES, $ 474.

31 Butler v. Perry, supra, at p. 333; FREUND, THE POLICE POWER, 8 614.

32 A State is certainly enough of a sovereign to conscript, for a proper purpose. See Lanahan o. Birge, note 3, supra.

33 Although no position was consistently taken by the Supreme Court of the United States, the view whose soundness force has warranted is that the States of the South, having no power to secede, were at all times members of the United States. Texas o. White, 7 Wall. (U. S.) 700; Keith v. Clark, 97 U. S. 454.


* Thus, the State courts under the Confederacy held repeatedly that the conscription of the Confederacy prevailed over even a prior conscription of the same citizen by his State. State ex rel. Graham, In re Emerson, 39 Ala. 437; Ex parte Bolling, In re Watts, 39 Ala. 609; Simmons v. Miller, 40 Miss. 19. In Simmons o. Miller (at p. 24) the Confederate Constitution is construed in terms of the Constitution of the United States, which it closely followed.

the individual's liberty is the state's necessity. And “necessity” may be in the future, as it has been in the past, translated into terms of policy.

MUNICIPAL LIABILITY FOR TORT. - In attempting to state the principles upon which the tort liability of municipal corporations is to-day based it is difficult to discover any formula adequate to explain the cases. The rule generally professed by the decisions denies liability for the performance of a governmental function, and allows recovery where the function is municipal, i. e., non-governmental. This distinction is doubtless based upon an analogy to the non-liability of the state for torts. It was natural enough to hold a city exempt when performing functions which in its small sphere corresponded to those handled by the state. But the municipality being a smaller and more adaptable unit has outstripped the state in entering into the economic life of the people. In taking up enterprises formerly conducted by private business the analogy of governmental immunity has been inapplicable, and here the liability of a private person has been imposed. Non-liability for governmental acts has in the main achieved just results because the considerations of policy underlying the immunity of the state have also been present in many of the so-called governmental functions of the city. One weakness, however, has been the failure to realize that the rule, being based upon an analogy, is properly to be used only where the situation is fundamentally similar. The application of the rule has often been too broad and undiscriminating. The chief defect, however, is that the test is not self-defining, and is therefore no true test at all. The state aims to secure to its people a certain minimum of well-being. The extent of this minimum varies with time, place, and circumstance; it is relative and continually changing. To speak of a governmental function, therefore, means little in itself. The test, moreover, purports to be a permanent one; but being in fact ever changing it is ill adapted to the end of setting precedents. Thus if states extend their activities as far as have the cities into the domain of business as seems very likely to happen under the present tendency - the conception of governmental, if properly applied, would cover all activities of the city. Otherwise it would become a mere historical commentary.

A more specific examination of the present state of the law is now necessary. Classed as governmental are the police, school,“ health, charities,


2 For examples of excessive applications of this sort of an exemption, as, for instance, to common carriers transporting mail, see John M. Maguire, “State Liability for Tort," 30 Harv. L. REV. 20, 27. So independent contractors constructing county roads have been exempted. 29 Harv. L. REV. 323.

3 See 4 DILLON, MUNICIPAL CORPORATIONS, 5 ed., § 1656. • Hill v. City of Boston, 122 Mass. 344; 4 DILLON, 1658.

5 Valentine v. City of Englewood, 76 N. J. L. 509, 71 Atl. 344; Mitchell o. City of Rockland, 52 Me. 118; 4 Dillon, $ 1661.

• Maximilian v. Mayor, etc. of New York, 62 N. Y. 160. Here, as in many other cases of exemption, the decision states that the particular tortfeasor, though appointed, paid, controlled, etc., by the city, is the agent not of the city but of the public. This seems to be only a method of making the result of non-liability appear more conclusive.

and fire departments. On the other hand, water works, gas and electric plants, and toll wharvesare everywhere recognized as municipal. Highways one would expect to be governmental; yet outside of New England most American jurisdictions impose a common law tort liability here.10 Sewers would seem to be equally governmental, and in addition to be closely related to the health service; yet for a failure to repair there is tort liability.11 The management of parks would similarly seem to be governmental, especially in the larger cities; on parks the authorities are divided. So also as to street cleaning and removal of ashes and garbage there is a split in the cases. 13 Although the repair of sewers is corporate, the maintenance of a city hall is governmental.14 But there may be liability during the erection of the hall; 15 and the maintenance of a courthouse is apparently municipal.16 If part of a city hall be rented, there is the liability of a private owner for the condition of the premises; 17 but if it be occupied in part by non-governmental departments, such as those of water and sewers, there is no liability.18 It is evident that the application to the facts of the distinction between governmental and municipal has been both difficult and obscure.

What, then, should be the test of liability? Where there is a financial return from a municipal enterprise there is at present tort liability as in the case of city-owned public utilities. But to set up financial return as the test, and grant exemption in all other cases, would not be satisfactory. True it could be applied with greater exactitude than the governmental function test. And it is said the charges for tort claims are more properly made a part of the cost of operation when that cost is paid by the enjoyers of the particular paid service than when it is added to the general tax budget. The argument fails in many of the cases sought to be supported by it, for when, as frequently, the municipal public service is paid for partly by tax money, the extra burden is likely to be on the taxpayer anyway. And whether a particular claim is prop


? Judson v. Borough of Winsted, 80 Conn. 384,68 Atl. 999. Terhune v. Mayor, etc. of New York, 88 N. Y. 247. In Mayor, etc. of Paterson v. Erie R. Co., 78 N. J. L. 592, 75 Atl. 922, this exemption was carried so far that a town suing for negligent collision with its fire engine was held not to be barred by the engine driver's contributory negligence. 8 Rhobidas o. Concord, 70 N. H. 90, 47 Atl. 82; 4 DILLON, $ 1670.

• City of Petersburg v. Applegarth, 28 Gratt. (Va.) 321; Mersey Docks Trustees v. Gibbs, L. R. I H. L. 93.

4 DILLON, $$ 1687, 1708 et seq.

Dillon, 88 1741, 1742. 12 Weber v. Harrisburg, 216 Pa. St. 117, 64 Atl. 905; Clark v. Inhabitants of Waltham, 128 Mass. 567; 4 DILLON, $ 1659. A recent Kansas case has held that the keeping of a zoo in a public park is a governmental function, and that the city is not liable when a visiting child is bitten by one of the zoo animals. Hibbard o. City of Wichita, 159 Pac. 399. But cf. Gartland v. New York Zoological Society, 135 App. Div. 163, 120 N. Y. Supp. 24.

13 Missano v. Mayor, etc. of New York, 160 N. Y. 123, 54 N. E. 744; Condict v. Mayor, etc. of Jersey City, 46 N. J. L. 157; 4 DILLON, 1662; 13 Harv. L. Rev. 59.

14 Eastman v. Meredith, 36 N. H. 284; Moest v. City of Buffalo, 116 App. Div. 657, 101 N. Y. Supp. 996. 16 City of Chicago v. Dermody, 61 III. 431; McCaughey v. Tripp, 12 R. I. 449. 16 Galvin v. Mayor, etc. of New York, 112 N. Y. 223, 19 N. E. 675. 17 Worden o. City of New Bedford, 131 Mass. 23. 18 Kelley v. City of Boston, 186 Mass. 165, 71 N. E. 299.

erly a part of cost or not cannot depend on who is to pay the cost. For instance, damage from the negligent digging of a ditch is no more properly charged up to the ditch if it is intended for a water pipe than if it is to hold a sewer.19 There is then no reason in economic fairness why this particular element of cost should be singled out from others for exemption. To argue that since at present there is no liability this cannot be reckoned among the cost items is to assume the very point in issue, which is, ought it to be so reckoned? Nor is such compensation objectionable as taxation for a private purpose; it is analogous to a payment to the owner deprived of his land by eminent domain. It is often said, in decisions refusing recovery, that the particular activity in question was being carried on for the benefit of the public, in contrast to those cases where it is said to be for the benefit of the municipality — as where a charge is made for services. Rarely if ever, however, does a city reap. any net profit from an enterprise. In any case the activity must be for the benefit of the whole community; otherwise, by the prevailing rule, a municipality is constitutionally prohibited from engaging therein.20 To apply the benefit test logically would mean that a municipal corporation would never be liable.

A municipal corporation, like a private corporation, is a creature of the state and subject to the laws. Its exemption from liability does not rest as does that of the sovereign on the impossibility of being sued at common law, but on grounds of policy.21 Primâ facie, then, a city should be under precisely the same duties and liabilities as to the ownership of property and employment of agents as is the private person similarly situated. This duty arises not through a statute authorizing or commanding a certain activity,22 but because the very ownership of property or use of agents imposes a relationship or duty to the surrounding world. Two important considerations favor recovery. There is the justice of compensating the plaintiff for his injury.23 And there is the care-and efficiency-inciting effect that recovery will exercise on the city as to the character and conduct of its employees and the condition of its property24 But as in the general law of torts the presence of certain countervailing interests constitutes a justification, defeating recovery, so where a municipal corporation is the defendant there may be in certain cases special considerations calling for exemption. Thus the exigencies of maintain

19 Of course, for things happening in the course of sewer work municipalities are liable, but on the test now under consideration they would not be.

20 Loan Ass'n. v. Topeka, 20 Wall. (U. S.) 655; Lowell v. City of Boston, 111 Mass. 454; Allen v. Inhabitants of Jay, 60 Me. 124.

ü This is recognized in Workman v. New York City, 179 U. S. 552, where recovery was allowed in admiralty for the negligent act of a municipal fire boat while attempting to reach a fire. It was admitted that the local law denied recovery, yet since the law might vary from state to state recovery was allowed for the sake of uniformity in maritime law.

22 That this difference in the form of the statute, often spoken of as material to the question of tort liability, is really immaterial, see Tindley v. City of Salem, 137 Mass. 171, 175.

23 This consideration is receiving increasing emphasis to-day. The tendency is to shift the burden, particularly of a bodily injury, to the community. Workmen's compensation acts, old age, sickness, and unemployment insurance, and the increasing strictness of the common carrier's liability are examples that come readily to mind.

21 See 4 DILLON, $ 1714.

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