ployees. The seven defendants who answered the complaint constituted the board of street commissioners of the city of Watertown. The city was made a defendant, but did not answer or appear in the action. The facts are sufficiently stated in the opinion. The plaintiff appeals from a judgment in favor of all the defendants except the city.

ORTON, J. The above defendant, William Rohr, and six others are charged in the complaint as follows: They were constructing and repairing stone piers and abutments under the Main-Street bridge over the Rock River, in the city of Watertown, and there was standing in an upright position on said bridge a large and heavy hoisting machine, known as a derrick, which was placed there by them, and before that day had been used by them in repairing and constructing said piers and abutments. The plaintiff was walking along upon that portion of the bridge which was set apart for persons traveling on foot, and through the carelessness and negligence of the defendants, their agents, servants and employees, said derrick was allowed to fall across and upon said bridge, and upon the plaintiff, while she was walking along as a traveler on said highway bridge, and without fault on her part: whereby she was greatly hurt, bruised and injured.

The defendants by answer admit that the piers and abutments of said bridge were being constructed and repaired, but deny that they were constructing or repairing the same, and deny that it was through their fault or that of their agents, servants, or employees, that the derrick fell upon the plaintiff, and that she was greatly injured thereby, or that she received any injuries by reason of their negligence or that of their agents, servants, or employees, and deny that the plaintiff was without fault, and avow that her own negligence contributed to her injury. They allege that said bridge had been out of repair for some time, and needed repair and reconstruction; and that as the board of street commissioners of said city, in its collective and legislative capacity, they had duly let the work of repairing and constructing said piers and abutments to competent persons to do that work, and the said persons were then engaged in the due prosecution of said work, exercising due and proper caution in operating the said derrick.

The facts in respect to said mason-work on the piers and abutments, stated in respondents' brief and proved on the trial, were as follows: The clerk of the city was directed by the defendants, in accordance with the requirement of sec. 3 of subch. 9 of the

city charter in respect to all such work, to advertise for proposals for doing the mason-work and furnishing materials for the bridge according to the plans and specifications adopted by them as the board of street commissioners, to be received up to a certain date; and on that day the proposal of one Charles Baxter for doing said work and furnishing materials was accepted by them, and they directed a contract to be entered into with him according to said. proposal, and that the said work be let to him, he being the lowest bidder for the same. But before any contract was entered into with him, and before, as they ascertained, he had acquired any rights in the same, by resolution of the defendants as such board the whole matter was left open and undisposed of for their future action. Their committee to whom the matter had been referred, reported plans and specifications of said mason-work and materials, and recommended that said work and furnishing materials be done by themselves, under the supervision of their committee on streets and bridges, and that a superintendent be appointed, and said resolution was accordingly adopted by them. In this manner the work upon said bridge commenced and was carried on by the defendants through their superintendent and other persons employed by them, and under the supervision of their committee, up to the time the plaintiff was injured by the falling of the derrick by the negligence of their servants. No contract was ever let to any one to do said work or to furnish materials for the same, but the defendants did the work, instead of a contractor obtained according to the requirement of the charter as the lowest bidder for the same. On these facts the Circuit Court directed a verdict for the defendants, except the city of Watertown.

It will be seen that the facts proved do not support the answer as to letting the work to other persons. It may be said here that all the authorities cited by the learned counsel of the respondents have application only to the case made by the answer, and in no respect to that made by the facts proved. The same elementary authorities cited by them make the very distinction which here exists between the answer and the proofs. The board of street commissioners, when they determined upon the work and adopted the plans and specifications of it, acted as public officers, exercising judicial and legislative power, and they are not amenable to any

1 Ch. 233, Laws of 1865, sec. 3, subch. 9, is as follows: "All work for the city of either ward thereof shall be let by contract to the lowest responsible bidder, and due notice shall be given of the time and place of letting such contract."-Rep.

one except the public for any errors, negligence or mere misfeasance in the matters within their jurisdiction. In this case they are not charged with any dereliction in these respects. But when, after adopting the plans and specifications, they undertake to carry them out practically and do the work themselves, and employ agents and servants to execute the plans and specifications manually, then, if they are acting as officers at all, they are merely ministerial officers, and not judicial or legislative, and, according to the same authorities, are liable to third persons for their negligence or misfeasance, or, as the authorities say, as public officers, they acted in a ministerial capacity, and are therefore liable. Cooley on Torts, 339-376. If, as public officers, they owe only a duty to the public and are not liable to persons, yet, if they so act as to owe a duty to individuals, then their negligence therein is an individual wrong which may be redressed by private action. In this case the defendants owed a duty to the traveling public, and to the plaintiff while traveling over the bridge, to look out for her personal safety, while they were managing the work through their servants. This is not a public, but a private, duty, they must discharge properly or be liable to those injured by their negligence. As public officers, acting for the public alone, they are exempt from personal liability. The doctrine of respondeat superior does not apply to such. But if, as the authors say, they engage in some special employment, and their duties are of a more private character, and concern individuals as well as the public, they are amenable to private actions. Whart. Neg. § 284; Shearm. & Redf. §§ 166, 167. This distinction is plainly marked and easily applied. The authorities cited by the learned counsel of the respondents apply only to the first class, and therefore are not applicable to this case;

This is sufficient as to the principle which governs this case, treating the defendants as officers as well as operatives.

Whenever a person sued sets up a defence that he was an officer of the government acting under color of law, it plainly devolves upon him to show that the law which he invokes authorizes the particular act in question to be done, and that he acted in good faith. Tweed's Case, 16 Wall. 504. But where the issue is negligence, motives or good faith are immaterial. Hoover v. Barkhoof, 44 N. Y. 113. Where an officer injures another while performing ministerial duties, he is liable. Mills v. Brooklyn, 32 N. Y. 489.

For a personal injury caused by the negligence of several persons they are severally or jointly liable. Creed v. Hartmann, 29 N. Y. 591; Peoria v. Simpson, 110 Ill. 294; Wright v. Compton, 53 Ind. 337; State ex rel. Reynold v. Babcock, 42 Wis. 138. These general propositions are indisputable, and, with the authorities, are taken from the brief of the learned counsel of the appellant. We conclude, therefore, that the plaintiff had a right to recover against the defendants and that the court

erred in directing a verdict in their favor.

By the Court. The judgment of the circuit court is reversed, and the cause remanded for a new trial.

A motion for a rehearing was denied February 19, 1889.

Other instances of actions in tort against officers in this collection are Kinneen v. Wells, 144 Mass. 497, denial of elective franchise; Page v. Staples, 13 R. I. 306, false imprisonment; Bell v. Pierce, 51 N. Y. 12; Mygatt v. Washburn, 15 N. Y. 316, unlawful tax assessment; Bergen v. Clarkson, 6 N. J. L. 468, unlawful distraint of property; Lawton v. Steele, 119 N. Y. 226; Fields v. Stokely, 99 Pa. St. 306; Raymond v. Fish, 51 Conn. 80, alleged unlawful abatement of nuisances, all supra. See also Luther v. Borden, 7 Hun. (U. S.) 1; Little v. Barreme, 2 Cranch. (U. S.) 170; Kilbourn v. Thompson, 103 U. S. 168.

5. Liability to Third Persons on Official Bond.

THE PEOPLE EX REL. KELLOGG V. SCHUYLER.
Court of Appeals of New York. December, 1850.
4 New York 173.

GARDINER, J. The only question presented by the pleadings is whether the sheriff and his sureties are liable upon his official bond, for a trespass committed by the former in taking the goods of the relator, in an attempt to execute regular and valid process, issued against the property of another.

The bond was in form to the people of the state; it was in effect a security, not only to suitors, who might have a direct interest in the action of the sheriff, but to every citizen who might be injured by his official misconduct. Before and at the time of the alleged trespass, Schuyler was sheriff of the county of Rensselaer. As a public officer, the attachment in question was necessarily and

lawfully delivered to and received by him. He assumes to levy and draw up his inventory as sheriff; as sheriff he rightfully summoned a jury, to determine the title to the property seized, and subsequently, in his official character, received an indemnity and detained the goods, in opposition to the verdict. He received the attachment, therefore, not colore officii, but in virtue of his office. His sureties undertook "that he should faithfully execute" the process. If he had "in all things" performed his duty, he would have seized the goods of Fay or returned the writ, instead of which he levied on the goods of Batcheller, as the property of the defendant in the attachment. Upon principle, and upon grounds of public policy, it seems to me, that the responsibility of his sureties should be different from those they would incur, if the sheriff had entered upon the premises of the relator, and removed his goods without any process whatever. In the last case supposed, the sheriff would act in his own right, and might be resisted as any other wrongdoer. In the one before us, he was put in motion by legal authority, invoked in behalf of others, and could command the power of the county to aid him in its execution. Respect for the process of our courts, and for the official character of the sheriff, if it did not forbid forcible opposition (which must have been unavailing), is incompatible with the notion of making resistance indispensable as a means of protection. This must be the alternative, if those who are thus aggrieved are driven to rely exclusively upon the responsibility of the officer, who, as in this case, may be wholly insolvent.

It was, however, assumed by Judge CowEN, in Ex parte Reed, (4 Hill, 573,) that no such distinction was recognized by our law, and that in neither case would the sheriff or his sureties be liable upon his official bond. He remarks, "that the words of the obligation cannot be extended beyond nonfeasance or misfeasance, in respect to acts which by law he is required to perform as sheriff." This may be admitted: but in the case then before the court, and in the present, the sheriff as the executive officer of his county, received a regular process issued by a court of competent jurisdiction, by which he was commanded to act as sheriff. If he had neglected to act without some legal excuse, it would have been a nonfeasance; if he had acted wrongfully in attempting to obey the mandate, it would have been a misfeasance "in respect to acts which he was required to perform as sheriff." The distinction is between a case in which a duty is imposed at law upon an officer as such, which he is bound by his peril faithfully to discharge, and