It will not be claimed that there is any statute conferring the right of action in this case; nor can it be claimed, by virtue of any statute or otherwise, that the District derives any revenue from the use of its streets and highways.

The contention must be, that the right of action arises by implication; that it is the result of powers and duties imposed upon the District by statute.

As

We are mindful of the Barnes case (96 U. S., 540). that decision was by a bare majority of the court, it is our purpose to ask the court which made it to review it in a case properly prepared. For the present, we observe that the political status of the people of the District has been so materially changed since that decision that it seems proper to make the point that the Barnes case is not authority in this case.

The cause of action in that case arose at a time when the District was a real as well as a legal municipality, armed with a full equipment of powers, legislative and executive. The people had so large a share in the legislative that no liability could be incurred, and no tax levied without their assent. The real basis of their liability in that case must, when reached, be understood to be this exercise of political power as a consideration. Shadowy and vague as that is, there must be the assumption of something on which to rest this liability, or it cannot exist. The status of the people is now totally changed.

It is true the act of June 11, 1878, ironically declares that although the people of the District had not been in possession of a political right or franchise, or vestige of corporate power for four years, "the District of Columbia shall remain and continue a municipal corporation!"

It is competent for Congress to declare that the District shall remain a corporation, and under that fiction govern the District. It is not within its power to create a corporation without corporators, and when it is stated that there are no corporators, that is the end of the argument, and the end of authority applicable to corporations. A municipal corporation must not only have corporators, the resident

citizens, but they, as such, must be in possession of corporate franchises, with the means and power for their due exercise. A municipal corporation has a common council and board of aldermen, or some body which answers to the legal idea. of such a legislative agency, a body which owes its personnel to the choice of the corporators. There is no extant legislative body of the District. A municipal corporation under our system has a mayor, designated by the corporators. The District has no such officer, has no executive in any way designated by any corporator or citizen, or inhabitant of the District, nor does the executive government of the District, save in a remote degree, answer to the idea of a mayor.

As Congress has not given a right of action against this, its continuing municipal corporation for the alleged cause of action counted upon in this case, and as the people of the District can exercise no power in the premises, how can a right of action be implied from any power or duty imposed upon them in the premises? It never was by anyone anywhere contended that a people, town, hamlet, or hundred, who had no power over, no special interest in a street, highway or bridge, within the limits of the territory they inhabit, or the town covers, was liable for an injury in a civil action caused by a defect in the public works. How can a people, property owners, by any fiction of law, be held responsible for the defects in a street, highway or bridge, over which it is admitted that not even a fiction of law gives them a fiction of power? As covering this point, and largely and luminously the whole field of municipal liability for torts of the character charged in this case, we cite Hill vs. Boston, 122 Mass., 344; 2d Thomp. Mg., 540.

What is the measure of liability by the District, for the presence of snow and ice upon the streets, as proved in this case? Whatever may be said of sidewalks, the locus of the accident was on the surface of two streets-the carriageways in common-and it is nonsense to talk of a sidewalk as entering into this already complex idea.

No reach of science or prescience enables men with any certainty to foretell a snowstorm, its duration, or depth of

fall. So rarely in this latitude has obstruction to streets arisen from that cause, that beyond providing for the removal of snow from the sidewalks proper, there is no provision of law upon the subject. Webb, 163, sec. 18; Id., 220, sec. 23.

It will be observed, that while this last might, perhaps, be held to require a clearing of the crossings on the north side of Pennsylvania avenue, by the Commissioners of Improvements, from First to Fifteenth streets, it is in terms limited to that side.

To aid the court and jury to appreciate the conditions under which it was sought to hold the District responsible for the accident to the plaintiff, it gave in evidence a duly certified copy, under the seal of the War Department of the United States Government, under date of January 9, 1882, of observation of the Signal Service of the United States Army, in Washington, D. C., and read so much therefrom as to show that it began to snow at 11 a m., on the 20th day of December, 1880, and snowed continuously in said city of Washington until 3 p. m., on the 21st day of December, 1880; that said record further showed that it again began snowing on the 23d day of December, 1880, at 11 p. m., and continued until the 24th day of December, 1880, at 3 p. m.; and that it began to rain on the 25th day of December, 1880, at 2 p. m., and continued until 11 p. m. of said day.

From the records of the Signal Office it was shown in evidence, that the city was visited by a long-continued snowstorm, or a series of succeeding storms of unexampled severity in this latitude, continuing from Monday to near nightfall of Friday, followed by a rain storm on Saturday, the day of the accident; and it is said that the District is to be held responsible for the condition of the streets of the city, not for the safety of carriages, but for the foot passengers at the crossings. It has not a man to detail for the duty of clearing them, nor a dollar at its command for this purpose.

There were several hundred intersections of streets in the city of Washington alone, an hundred as important as that

mentioned in the declaration. To hold that the District should have had this intersection clear at the time, is to hold it responsible for the impossible.

It is submitted that it would be the only sound and practicable rule to hold that persons who go forth under the conditions attending the plaintiff's journey, described in the declaration, must do so at their peril. Otherwise, every accident will lay a heavy burden upon the District. It will always be at the discretion of the plaintiff. It will never be present with observing witnesses to prove its side.

Mr. Chief Justice CARTTER delivered the opinion of the

court.

The plaintiff, who is a widow and of advanced age, brings this suit to recover damages in consequence of injuries sustained through the alleged default of the defendant in allowing the snow and ice to accumulate on the footway and crossing at the corner of Seventh street and Pennsylvania avenue, in this city. It appears that she was a passenger on one of the street cars, and that at this point the passengers are transferred from one car to another; that she got off the car, and while going to the other, she slipped and fell, breaking her hip-bone, and became thereby seriously crippled for life. The jury found in her favor, and assessed the damages at $4,500, which is not a large verdict, considering the nature of her injuries, provided under the law and facts of the case she is entitled to recover anything.

Three primal objections to the verdict are urged by the defendant: First. "That the present form of government of the District of Columbia, consisting as it does of officers who are appointed and paid by the United States, without any power to levy taxes or to spend money, except as directed by Congress, is not of such a character as to make the District responsible in damages for any negligence of those officers." Second. "That the present form of the government of the District of Columbia, having been imposed upon the people of the District, without any power or opportunity

on their part to accept or reject the same, the District cannot be held responsible for the negligence of such government;" and, Third. "That the care of the streets of this city is imposed by statute upon the District, the performance of which is for the general benefit, and that the District derives no profit from it; consequently, no action can be maintained against the District for damages resulting from a neglect to perform such public duty.”

These questions, however interesting they might be to discuss, have been already considered and decided by the Supreme Court of the United States in the case of Barnes vs. The District of Columbia, 91 U. S., 540, where it was held that the liability of the District is not affected by the manner in which its officers are placed in their position; whether elected by the people or appointed by the President. It is useless, therefore, to enter into any further inquiry upon the subject, since we are bound by the authority of that decision which, although it was rendered by a divided court, must remain the law with us until reversed by the same court which rendered it. We are of opinion, therefore, that the District is liable if it fail to keep the streets and highways in such a condition as will render them safe for public use. But this liability is no greater and no less than that of any municipal corporation which receives its grant of power from the sovereign.

The testimony in this case is, that it had been alternately snowing and raining, with short periods of intermission, three days prior to the accident, and that it was raining at the time of the accident, and for several hours prior to and including the time when it occurred. All the streets of the city were covered with a slush of mud and snow and ice. There is no evidence that the condition of this particular street was any worse than that of any other of the hundreds of streets in the city. Now, it certainly cannot be maintained that the District authorities are called upon to keep all these streets clear of the millions of tons of snow falling upon them during the winter. Such an undertaking would be incapable of performance, and is simply impossible.