Claussen v. City of Luverne
115 N.W. 643
Minn.
1908
Check Treatment
JAGGARD, J.

The following facts are admitted by demurrer to the complaint herein: The city of Luverne, defendant and respondent, issued a license for the sale of intoxicating liquors to the plaintiff and appellant on the payment by him of $1,250. The license according to its terms terminated on May 1, 1006. On December 8, 1905, the common council of the defendant, acting mistakenly and in excess of its powers, *495but not maliciously, revoked the license. Thereupon plaintiff closed his place of business, which remained closed for the rest of the license year. On February. 19, 1906, plaintiff sued out certiorari. The district court set aside the action of the council on April 25, 1906. As the result plaintiff was deprived by defendant of his license for a period of over four and one half months. Thereupon plaintiff began this action in tort to recover general and special damages, from the defendant. From an order sustaining a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, this appeal was taken.

It is elementary that neither the state nor any of the subdivisions," like a municipality, through which it operates, is liable for torts committed by public officers, save in definitely excepted classes of cases. I The exemption is based upon the sovereign character of the state ancy its agencies, and upon the absence of obligation, and not on the ground that no means for remedy have been provided. “The government,” said Mr. Justice Story, “does not undertake to guarantee to any person the fidelity of the officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments, difficulties and losses, which would be subversive of the public interest.” U. S. v. Kirkpatrick, 9 Wheat. 720, 6 L. Ed. 199; Beers v. State, 20 How. 527, 15 L. Ed. 991. This general exemption has been applied to municipal corporations in so far as the acts complained of were, in the language of the memorandum of the trial court, “done in exercising powers for the public at large as a governing agency.” “While so acting, the city cannot be held liable for misfeasance; and * * * the rule of respondeat superior has no application.” Fowle v. Common Council of Alexandria, 3 Pet. (U. S.) 398, 7 L. Ed. 719; Russell v. Men of Devon, 2 T. R. 667; Hill v. City of Boston, 122 Mass. 344, 23 Am. 332; Woodhull v. Mayor, 150 N. Y. 450, 44 N. E. 1038; Gullikson v. McDonald, 62 Minn. 278, 64 N. W. 812; Lane v. Minnesota State Agricultural Society, 62 Minn. 175, 64 N. W. 382, 29 L. R. A. 708. The more recent cases on the general subject are to be found collected in 6 Current Law, 735; 8 Current Law, 1078. It was said in City v. Seben, 165 Ill. 371, 46 N. E. 244, 56 Am. St. 245: “Municipal corporations will not be held liable in damages for the *496manner in which they exercise in good faith their discretionary powers of a public, legislative, or quasi judicial nature.”

The principal question in this case is whether the council acted in its public capacity. The argument is that because it derived compensation and benefit in its corporate capacity, and because it acted in excess of its powers without having obtained jurisdiction, it is responsible in damages. The contention is ingenious, and has been pressed upon us by means of forceful presentation of what authorities seem inclined to support it. We are clear, however, that the argument is not tenable.

It is elementary that a license to sell intoxicating liquors is granted in pursuance of the police power, and not of the taxing power, of the state. Its primary purpose is not revenue, but regulation. In the exercise of that power a license may be revoked without judicial proceedings. State v. Cooke, 24 Minn. 247, 31 Am. 344; State v. Harris, 50 Minn. 128, 52 N. W. 387, 531; Metropolitan v. Barrie, 34 N. Y. 657. It is clear that the city is not liable in tort for the mistaken action of the city council in attempting to revoke a license or permit. In Lerch v. City of Duluth, 88 Minn. 295, 92 N. W. 1116, the city granted a permit to move a building within its fire limits. Its common council revoked that license. Action was brought to recover damages. It was held that an action ex delicto would not lie and that the remedy was by injunction. Lovely, J., said: “The arbitrary resolution revoking the permit being void, any servant of the city attempting to aid in its enforcement would do so 'at his peril, and for any acts of his in that respect a suit for damages would undoubtedly lie against him; but against the city itself such an action would not lie, any more than for an unauthorized arrest by a public officer or other ultra vires act of one of its servants. Boehm v. Mayor, 61 Md. 259; Field v. City, 39 Iowa, 575, 28 Am. 46; Calwell v. City, 51 Iowa, 687, 2 N. W. 614, 33 Am. 154; Peters v. City, 40 Kan. 654, 20 Pac. 490.” And see City of Kansas City v. Lemen, 6 C. C. A. 627, collecting cases at 631, 57 Fed. 905, at page 908; 8 Current Law, 1078. It is wholly immaterial that the remedy in that case was injunction, and.here certiorari. It is equally immaterial that “no consideration was paid for the permit in the Duluth case.” The only question of present concern there was, and here is, whether in revoking the license the city was exempt *497from liability in tort. We are of opinion that the city council here acted in a manner within the scope of its authority as a legislative body, in a semijudicial capacity, and in the exercise of the police power.

The authorities to which defendant cites us do not change this opinion. It was held in City v. Mayer, 58 Neb. 161, 78 N. W. 462, that, where a license properly issued had been wrongfully revoked, the licensee was entitled to recover from the municipality the unearned portion of the license fee. The rule in that state is regarded by the court itself as resting upon earlier decisions of that court, and not upon the inherent soundness of its doctrine. See Chamberlain v. City, 43 Neb. 221, 61 N. W. 632. Nor was the question presented in that case identical with the one at bar. Unlike the Mayer case, this was plainly an action in tort, and not upon the contract or the quasi contract. In Speir v. City, 139 N. Y. 6, 34 N. E. 727, 21 L. R. A. 641, 36 Am. St. 664, the city permitted the use of fireworks within a city street, and property owners recovered damages because the city had attempted to authorize a public nuisance. And see Landau v. New York, 180 N. Y. 48, 72 N. E. 631, 105 Am. St. 709. A city may be liable for creating a nuisance, just as it may be liable for negligence with respect to its streets, sidewalks, and sewers. Such -cases are clearly recognized exceptions to the general rule that municipalities are not liable for torts. But when the display of fireworks does not create a nuisance per se, as where it is authorized to be given in a public park, the exemption applies. De Agramonte v. City, 112 App. Div. 291, 98 N. Y. Supp. 454. Cf. Crowley v. Rochester, 95 App. Div. 13, 88 N. Y. Supp. 483. No question of nuisance, moreover, is involved in the case at bar. The opinion in thé case of Stevens v. City of Muskegon, 111 Mich. 72, 69 N. W. 227, 36 L. R. A. 777, sustains the exemption of the city from liability in damages consequent upon the improper ordinance and restricts the remedy to injunction and the like. State v. Barr, 30 Mo. App. 498, involved a mandamus; Degginger v. Seattle, 41 Wash. 385, 83 Pac. 898, 4 L. R. A. (N. S.) 626, the assignability of a license and the rights of the pledgee. The other cases which are referred to by plaintiff have been examined. None of them justify the refusal to apply the ordinary rule of exemption to this case.

Affirmed.