Davis v. City Council

51 Ala. 139 | Ala. | 1874

PETERS, C. J.

In the case of Smoot v. The Mayor, & c. of Wetumpka (24 Ala. 112, 120), this court, speaking through the mouth of Chief Justice Chilton, said: “It is too well settled, by an unbroken current of authorities for many years past, that an action on the case for a tort may be maintained against corporations as against individuals, now to be contested.” This opinion was delivered in 1854, and was pronounced in an action on the case against a municipal corporation, in which the corporation was held liable for injuries to the plaintiff, which had resulted from the failure of the city of Wetumpka to keep its streets in order for safe travel and passage of the people and their property. This duty the corporation had assumed to perform, upon such consideration in law as bound them to do it. The language of the act of incorporation declares, that “ the inhabitants of the said city shall be excused from working on roads and highways out of the said city, and from patrol duty, except under authority of said city; but the streets and highways of said city shall be kept in repair by said city.” Acts of Ala. 1839, p. 47, § 11. This puts the decision upon a principle that is clear and satisfactory. It is this: that the city corporation was bound to do what it had assumed to do upon a sufficient consideration. To be excused from the performance of one set of public duties, which were imposed alike upon all the people of the county and the State, the citizens of Wetumpka, under its city charter, had consented to discharge another set of public duties, of a more limited character. The corporation, then, as an individual would be, was bound to keep its pledges, or respond in damages for a failure. This important decision does not go beyond this. Thus far, it is a part of the law of the State, which has never been repealed. Gelpcke v. City of Dubuque, 1 Wall. 175; 16 How. 432. It is, therefore, binding on this court, unless reasons are shown sufficient to demonstrate its incorrectness. Nothing of this sort is attempted.

This decision limits the liability of municipal corporations, for torts, to a certain class of cases; that is, to those cases in which the corporation has stipulated to perform the duty insisted on, in consideration of being excused from the performance of other duties in its stead, or in consideration of the grant of the franchise itself. A corporation is but an artificial person, and, like a real person, it cannot be required to do what it never agreed or bound itself to do. The. law only enforces such burdens as the citizen or corporation has agreed to bear on sufficient consideration to support such agreement; or such burdens as are imposed equally and alike on all, for the good of all, by the sovereign will of all, — by the law.

The complaint in this case is based on the proposition, that the city of Montgomery, under its charter, is bound to abate all nuisances within its limits, when notified of the existence of the same, or to pay to the citizen injured by their existence in property or person such damages as they may have occasioned him during such existence. If this is so, it must appear from the act of incorporation itself; for this measures equally the powers and the responsibilities of the corporation. The liability grows out of a matter of contract, which the city has the power to make, or it is implied as a matter of duty assumed by the city in consideration of the grant of the franchise. I see no other ground upon which such an obligation can stand or be enforced. A corporation is an individual, created by law, and as an individual it must be judged. Angell & Ames on Corporations, pp. 1 et seq., and cases there cited. Here, the matter of complaint is, that the plaintiff’s house and out-houses on her lot were set on fire and destroyed by “ sparks, fire, and burning wood, proceeding ” from the “ chimney, fireplace, and furnace ” of a certain steam-engine belonging to a citizen of the city, erected and used by him as his own property, on his own premises, and under his own management in said city, near the lot and houses of the plaintiff, and over which the city corporation had no private right of control; because the house, within which the engine and chimney, fireplace and furnace were erected and used, was of such a character that it comes within the description of a nuisance as defined and declared in the city ordinances; in other words, that the city became liable, under its charter, for all injuries arising from nuisances of a certain kind, within its limits, which it failed to abate after notice of the same. I have not been able to find in what section of the charter this duty has been expressly imposed. Nor have I been able, on any settled principle, to infer its existence from any other duty so expressly imposed. I must therefore infer that it does not exist. From such a fire, under favorable circumstances, it is not impossible that the whole city may have been burned, and all the houses in it may have been destroyed; and as the city can only pay its liabilities by taxation, and taxes can only be levied on the property of the citizens within its boundaries, for such purposes, and taxes must be levied in proportion to the value of the property assessed, this would seem seriously to approach the proposition, that every owner should pay himself for his own house, which had been destroyed by a fire arising from a nuisance. Such a proposition, to my mind, seems too nearly to verge upon an absurdity to be accepted as sound law. If we proceed upon correct principle, we are not likely to run into confusion or absurdity. It may be said, in such case, we know the way in which we go, and are able to go safely. We go forward with the true balance of all our faculties. We walk with the eyes and the judgment, as well as with the feet.

A very ingenious and learned author, discussing the principles of pleadings, has declared that every complaint is founded on a proposition, in logical phraseology called a syllogism. Gould on Pleadings, chap. 1, ad finem. The major proposition is the law of the case ; the middle proposition is the facts; and the conclusion is the judgment of the court, applying the law of the case to the facts. If the major or the middle proposition is untrue, then the case must fail. The major proposition is tried upon demurrer by the court, or upon a charge to the jury, which is of like character. The charge is an impeachment before the judge presiding at the trial, of the truth of the major proposition. The decision on demurrer does not need a bill of exceptions to bring it up on appeal for review and correction, if it should be wrong; it is a part of the record. The decision on the charge does. Rev. Code, § 2754. Yet the purpose and object of both are the same. Here, if I understand the complaint, which is not wholly free from some embarrassing prolixity, the major proposition is this: The city corporation of the city of Montgomery is liable for all damages occasioned by nuisances erected in said city, after notice of the same, if the corporate authorities or city government fail to abate it before the injury accrues. This is not the law, as declared in the charter, nor is it the law as deduced from principle ; and it is only in one of these ways that the city can be made liable. The abatement of a nuisance is a judicial act. For a failure to exert its judicial power, the city is not liable, unless, possibly, it acts not only negligently, but also corruptly. This principle is referred to and admitted by the learned chief justice of this court in the case of Smoot v. The Mayor, &c. of Wetumpka, supra. His words are these: “ The principal difficulty we have had in this case, is in determining as to the nature of the liability of the defendant (city of Wetumpka) in respect to the failure of duty and negligence charged against it, considered with the law of its organization ; in other words, whether the duty alleged to have been negligently and tortiously violated grows out of, and forms a part of those powers, in the exercise of which the corporation acts as a legislative body, or whether such duty does not involve the exercise of governmental functions.” The judicial power is a part of the governmental power. Const. Ala. Art. III. §§ 1, 2. In the exercise of such powers, the corporation is not bound to act, unless it chooses to act, if this choice is not corruptly made. 24 Ala. 120, 121, 112. This principle has been acknowledged and acted upon in all or most all of the highest courts of the States of the Union, in which such questions as that involved in the present case have been discussed and determined. Detroit v. Blakely, 21 Mich. 84; S. C. 4 Amer. R. 450; Jewett v. The City of New Haven, 38 Conn. 368; S. C. 9 Amer. R. 382; Torbush v. City of Norwich, 38 Conn. 225; S. C. 9 Amer. R. 395, and cases cited in appellee’s brief.

The nuisance charged in the plaintiff’s complaint would be, at common law, a private nuisance, remediable by suit in the plaintiff’s name against the person erecting or continuing the nuisance. 7 Bac. Abr. Bouv. ed. pp. 223, 233; 1 Russ, on Crimes, pp. 317 et seq. But, by ordinance of the city government, it is made a public, or common nuisance, and it is remediable by indictment (1 Russ, on Crimes, 329); or, by action on the case after the injury (Duncan v. Thwaite, 3 B. & C. 584; 11 East, 60) ; or, before the injury, by bill in equity for injunction (2 Story’s Eq. §§ 921, 924, 925, 926); but in no case by suit against the city corporation for a failure to abate the nuisance, unless, perhaps, it appeared that the corporation had acted corruptly and abused its powers, or this was required by the stipulations of the charter.

The judgment of the court below is affirmed.