District of Columbia v. Tyrrell

41 App. D.C. 463 | D.C. Cir. | 1914

Mr. Chief Justice Shkpard

delivered the opinion of the Court:

The District of Columbia is undoubtedly a municipal corporation, though its organization is peculiar. There is no general organic law covering all of the ordinary powers usually conferred in the creation of a municipal corporation, — no formal 'municipal charter, so to speak. The commissioners are ministerial officers. Congress exercises general control, sometimes enacting laws relating to municipal powers, duties, and ‘regulations; sometimes delegating to the commissioners the power to enact police regulations respecting specified subjects. The commissioners have no power to raise revenues for the support of the municipality, and the sums appropriated by Congress are directed to be applied to certain specified purposes, whether it be the improvement of streets, erection of public buildings, including public sehoolhouses and their repair. Brown v. District of Columbia, 29 App. D. C. 273, 282, 25 L.R.A.(N.S.) 98. The management and control of the public schools were formerly vested in the commissioners, and the title to the premises had been vested in the District of Columbia. The act of Congress, approved June 20, 1906 (34 Stat. at L. 316, chap. 3446), undertakes to provide for the system of education, under a new arrangement. It vests control of the public schools in a board of education, to be appointed by the supreme court of the District; which board shall determine all questions of public policy relating to the public schools, appoint the executive officers, define their duties, and direct expenditures. It shall also make an estimate in detail for the amount of money required for the schools for the coming year, and the commissioners shall transmit the same in their annual estimate of appropriations for the District. The public schools form a branch of .the municipal organization, and it would seem to be immaterial how the board of education, charged with their administration and control, are chosen or appointed. Barnes v. District of Columbia, 91 U. S. 540, 545, 23 L. ed. 440, 441; District of Columbia v. Woodbury, 136 U. S. 450, 453, 34 L. ed. 472, 473, 10 Sup. Ct. Rep. 990.

If, through the negligence or misconduct of the board of education, an injury is done to person or property for which an action■ would lie in ¿'particular case, that action would lie against the District of Columbia as a municipal corporation. This brings us to the question whether this action can be maintained against 1he District of Columbia for the consequences of the negligence or misconduct of its agents, as charged.

The court, as recited above, charged the jury that the defendant was not responsible for a mere act of negligence. This, wo think, declares a sound principle of law. “Municipal corporations in general are invested with two kinds of special powers, and charged with two kinds of duties; the one kind is private, that is to say, merely municipal and for special local purposes and benefits; the other of a political or governmental character, for the general public welfare. 2 Dill. Alun. Cor]), sec. 966. In the language of Dolger, J.: ‘One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises or is implied from the use of political rights under the general law, in the exercise of which it is as a sovereign. * * The former is not held by the municipality as one of the political divisions of the State; the latter is.’ Maximilian v. New York, 62 N. Y. 160, 164, 20 Am. Rep. 468; Brown v. District of Columbia, supra."

Whatever the conflict of decisions upon the question of the liability of a municipal corporation for defects in the public streets, that liability has been affirmed in this jurisdiction. Barnes v. District of Columbia, 91 U. S. 540, 23 L. ed. 440; District of Columbia v. Woodbury, 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990.

The ground of liability is thus stated in Weightman v. Washington, 1 Black, 39, 50, 17 L. ed. 52, 57: “Where such a-duty of general interest is enjoined, and it appears, from a view' of the several provisions of the charter, that the burden was imposed in consideration of the privileges granted and accepted, and the means to perform the duty are placed at the disposal of the corporation, or are within their control, they are clearly liable to the public if they unreasonably neglect to comply with the requirement of the charter.” The duty was a ministerial one.

Tlie Supreme Court of the United States has gone no further than this.

In no case has it declared liability for failure to perform a purely governmental duty. See Johnston v. District of Columbia, 118 U. S. 19, 21, 30 L. ed. 75, 76, 6 Sup. Ct. Rep. 923; Brown v. District of Columbia, supra. In the latter case the District was held not to be liable for a defective condition of a house of the fire department through which plaintiff was injured. The duty of maintaining a system of public education for the benefit of all persons residing in the District of Columbia is a purely governmental function which is exercised by act of Congress through a board of education established thereby, though using school buildings the title to which had been acquired by the District of Columbia at a time when the system was under the management of the district commissioners by direction of Congress. “The duty of providing means of education, at the public expense, by building and maintaining schoolhouses, employing teachers, etc., is a purely public duty, in the discharge of which the local body, as the state’s representative, is exempt from corporate liability, for the faulty construction or want of repair of its school buildings, or the torts of its servants employed therein.” 2 Shearm. & Redf. Neg. 6th ed. sec. 267.

The foregoing proposition has the support of the great weight of authority. See 4 Dill. Mun. Corp. sec. 1657, and notes; Hill v. Boston, 122 Mass. 344, 353 et seq., 23 Am. Rep. 332; Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420, 9 Am. Neg. Rep. 207; Kinnare v. Chicago, 171 Ill. 332, 49 N. E. 536.

The apparent purpose of the declaration was to claim damages for defects in the gas pipes of the school building and the neglect of the duty to repair the same after notice; but it may be assumed that it furnished a foundation for the recovery of damages caused by a nuisance maintained by the defendant.

Upon this assumption the court charged the jury that if the gas had been permitted to escape in the building long enough to constitute.a continuing nuisance; and that if the defendant did not exercise the care than a man of reasonable prudence and caro would have exercised under the same circumstances, it would be responsible for the maintenance of the nuisance.

That the District of Columbia may be held liable for the commission of a nuisance working injury directly to the occupant of adjacent property has been affirmed by this court. Roth v. District of Columbia, 16 App. D. C. 323, 327. In that case a stable in which were kept the horses used for ambulances by the District police was kept in such filthy condition that it produced flies and vermin and noxious odors, which impaired the health and comfort of plaintiff, who lived on the adjoining lot. It was held that while “the mere maintenance or location of an ambulance stable, although possibly annoying and inconvenient to the residents of a neighborhood, may not of itself be held to be a nuisance, since it is a necessary and proper appliance of governmental authority, but the negligent, improper, and unlawful manner of its maintenance, which is the thing of which complaint is here made, is not warranted by any requirement of governmental duty, and is, on the contrary, directly antagonistic to the demands of such duty.” And it was further said: “It would be strange indeed if the question of the liability of a municipality for a nuisance committed or permitted by it upon its own property to the detriment of the neighborhood were dependent upon the amount of gain derived from the existence of the nuisance. As we have said, the municipality is not in the performance of any public duty, but rather in the violation of its public duties, when it permits the maintenance of a nuisance upon its property.”

This conclusion is supported by many cases. See Hill v. Boston, 122 Mass. 344, 358, 23 Am. Rep. 332, where the cases are cited. In that case the court held that the city was not liable for an injury to a school child through the unsafe condition of the school building. The cases cited, as referred to above, are by the same court. After stating their doctrines, Mr. Chief Justice Gray said: “But in such cases, the cause of action is not neglect in the performance of a corporate duty, rendering a public work unfit for the purposes for which it is intended, but it is the doing of a wrongful act, causing a direct injury to the property of another, outside of the limits of the public work.”

In the instant case there was no wrongful act as a result of which the gas was permitted to escape and become a nuisance to the public outside of the building, working discomfort or danger of itself.

It might be inferred from the evidence of the assistants of plaintiff’s intestate that, failing to obtain the match that he asked for, he lighted the twisted paper with the light contained in his lantern, and in searching for the leak ignited the gas where confined in some of the recesses of the ceiling in quantity sufficient to produce the explosion that caused his death.

Be that as it may, his death was not the result of a nuisance for -which the defendant could be held liable.

Instead of being governed, therefore, by Roth v. District of Columbia, supra, and the Massachusetts nuisance cases referred to above, the case comes more nearly within the rule of Brown v. District of Columbia; Hill v. Boston, and others, supra. In one of those cases (Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420, 9 Am. Neg. Rep. 201) the action was for the death of a pupil caused by the escape of sewer gas in a school building.

We are of the opinion that the court should have directed a verdict for the defendant.

This conclusion renders it unnecessary to consider the assignments of error relating to the effect of the work as carried on by an independent contractor; to contributory negligence; and to the effect of the release of the principal and subcontractors as pleaded.

The judgment is reversed, with costs, and the cause remanded for a new trial, not inconsistent with this opinion.

Beversed.

Mr. Justice Robb dissenting.