10 F. Cas. 604 | U.S. Circuit Court for the Northern District of Illnois | 1864
The question depends upon the proper construction to be
But the supreme court of the United States has always held that the federal judiciary will adopt the adjudications of the judicial department of the several states as the appropriate organ for construing the legislative enactments of that government. Elmendorf v. Taylor, 10 Wheat. [23 U. S.] 152.
Goodrich sued at law in one of the courts of the state for the same matter for which this libel is brought The declaration sets forth the cause of action fully; it asserted the legal obligation of the city and its liabilities because the city had wrongfully let the obstruction remain to the danger of navigation. All the provisions of the charter, which could be supposed to confer authority on the city, were cited, and it was averred that the city had assumed the liability, and for that purpose had levied taxes, had controlled the waters, and had passed ordinances relating to them. In one of the counts of the declaration the ordinance of the common council was set forth. In short, every averment was made that was necessary to raise the question. A demurrer was interposed to this declaration which was sustained, and the case was taken to the supreme court for adjudication. The case is reported in 20 Illinois, 445, and the judgment of the court below was affirmed. The supreme court say, “To maintain this action we must hold, that the city is bound to exercise all the authority here conferred and to do all the acts here authorized. Such, we are satisfied, was not the intention of the legislature.”
This is an authoritative adjudication denying the exclusive obligation and duty on the part of the city. In order to escape the effect of this decision, the libellant avers that the city undertook to remove the rock, and left it in a more dangerous position than at first. This averment was doubtless made because the supreme court said if the authorities of the city undertook to remove this rock, and in so doing had carelessly left it in an exposed position, by reason whereof the plaintiff’s steamer had run against it, and was injured, the city would be liable. There can be no clearer principle of law than this: that a municipal corporation, when it undertakes to do an act, must do it carefully, and if not an action will lie. I think the proof, however, fails to establish the fact that what was done by the city tended to the injury of the harbor. The harbor-master did attempt to-get the rock out, but abandoned the enterprise. He swears the rock was so imbedded in sand that he did not succeed in loosening it. The master of the tug corroborates the testimony of the harbor-master, and swears that the sunken stone or rock did not change position at all. But it is said the city as sumed to remove it. In what way? By passing an ordinance requiring the harbormaster to give notice to masters of vessels to remove. It may be said that this ordinance imposed no legal obligation as is averred in the libel. But it is said also that the city assumed the responsibility when the harbormaster tried and failed. I cannot see how that fact of itself could impose a legal obligation. The attempt was made to remove the obstruction and abandoned. It injured' no one. The act was not wrongful and was not the cause of the accident. It was proper enough to try to remove the obstruction, but it was not imposed on the city as an imperative duty, and on no legal principle can the libel be maintained. The city has done nothing in this case to injure the harbor, and if the supreme court decision is binding on me there is an end to this litigation.
I have not discussed the question of res adjudicata. The judgment, although on demurrer, is a judgment on the merits, and it decides that the action will not lie. The libel is dismissed.