Heeney v. Sprague
11 R.I. 456
R.I.
1877
Check Treatment
Dtjreee, C. J.

The plaintiffs base their right to maintain this action on the authority of cases which, they claim, hold that where a person is required by statute to do an act and neglects to do it, any person specially injured by the neglect is entitled to recover his damages in an action on the case, if no other remedy is given, and that, too, even when the statute imposes a penalty for its violation. Couch v. Steel, 3 El. & B. 402, 411; General Steam Navigation Co. v. Morrison, 13 C. B. N. S. 581, 594; Caswell v. Worth, 5 El. & B. 849; Atkinson v. New Castle & Gateshead Water Works Co. L. R. 6 Exch. 404; Aldrich v. Howard, 7 R. I. 199. It has been doubted, however, whether the cases go so far as is claimed. This doubt is expressed in Flynn v. Canton Company of Baltimore, 40 Md. 312, and in that case the attempt is made to confine the liability to cases in which the neglected duty is prescribed for the benefit of particular persons, or of a particular class of persons, or in consideration of some emolument or privilege conferred, or provision made, for its performance, and to show that it does not extend to a duty imposed without consideration, and for the benefit of the public at large, — the only liability for the neglect of such a duty being the penalty *461 prescribed. And this view is supported by strong, if not irrefragable authority. Hichok v. Trustees of Plattsburg, 16 N. Y. note on p. 161; Eastman v. Meredith, 36 N. H. 284 ; Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Aldrich v. Tripp, ante, p. 141. But even supposing the liability is not subject to any such qualification, then, inasmuch as the neglected duty was not enjoined by statute but by a municipal ordinance, the question arises whether in this respect an ordinance is as effectual as a statute. There are many things forbidden by ordinance which are nuisances or torts, and actionable as such at common law. The question does not relate to them. The defendant has not done anything injurious to others which she was forbidden to do ; she has simply left undone something beneficial to others which she was required to do under a penalty in case of default. The thing required was not obligatory upon her at common law. It was a duty newly created by ordinance, which, but for the ordinance, she might have omitted with entire impunity. The question is, whether a person neglecting such a duty is subject not only to the penalty prescribed,, but also to a civil action in favor of any person specially injured by the neglect. If the liability exists, it is quite a formidable one. A fall on the ice is often serious in its consequences. The damages resulting from it may amount to thousands of dollars. And under the ordinance the liability, if it exists, may be visited upon either the owner or the occupant of the abutting premises, or upon any person having the care of them. And further, if the liability exists under the ordinance in question, it exists, pari ratione, under every ordi-; nance prescribing a similar duty. To hold that it exists is there-; fore to recognize, outside the legislature, a legislative power as; between individuals which, though indirectly exercised, is nevertheless, in a high degree, delicate and important. This we ought not to do, unless upon principle or precedent our duty to do it is clear ; for we do not suppose that the creation of new civil liabilities between individuals was any part of the object for which the power to enact ordinances was granted.

In some of the cases the origin of the liability upon a statutory duty is ascribed to the Statute of Westminster II. cap. 50; 2 Inst. 485, 486. See Couch v. Steel, 3 El. & B. 402, 411; Aldrich v. Howard, 7 R. I. 199, 214. That chapter, however, *462 relates only to statutes; it does not extend to municipal ordinances. But even if the liability has its origin in the common law, we do not find that it has ever been held to extend to a . neglect of duty enjoined simply by a municipal ordinance, and we think there are reasons, apparent from what we have already said, why it should not extend to it. The power to enact ordinances is granted for particular local purposes. It includes or is coupled with a power to prescribe limited punishments by finé, penalty, or imprisonment for disobedience. No power is given to annex any civil liability. The power, being delegated, should be strictly construed. It would seem, therefore, that the mere neglect of a duty prescribed in the exercise of such a power should not be held to create, as a legal consequence, a liability which, within the power, could not be directly imposed.

The plaintiffs, in support of the action, refer to Jones v. Fireman's Fund Insurance Co. 2 Daly, 307, and Bell v. Quinn, 2 Sandf. 146. Neither of these cases is like the case at bar. The first was an action upon a policy of insurance containing a provision that the policy should be void whenever any article should be kept in greater quantities than the law allowed, or in a manner different from that prescribed by law, unless provided for in the policy. The plaintiff, who was insured, kept a kind of fireworks, called “ colored lights,” contrary to a city ordinance. The court decided that city ordinances within the city limits have all the force and effect of law, and that the plaintiff therefore could not recover. Here the only question was whether a city ordinance was a law in the sense in which the word was used in the policy. The court, in deciding that it was, expressed itself broadly; but its language, in so far as it covered more than the point decided, was obiter dictum. The case of Bell v. Quinn, 2 Sandf. 146, involved the effect not of a city ordinance but of a city charter. The action was upon a contract entered into in violation of the charter, not for damages resulting from its nonobservance. The court said: “We will not say what the consequence would be if the prohibition were found in an ordinance of the corporation instead of the statute law.” 2 Sandf. 151. And see Ex parte Dyster, in the Matter of Moline, 1 Meriv. 155 ; also in 2 Rose, 349; Kemble et al. v. Atkins et als. 1 Holt N. P. 427, and note; 7 Taunt. 260. The defendant, on the other hand, *463 has referred us to three cases: Vandyke v. City of Cincinnati et al. 1 Disney, 532; Kirby v. Boylston Market Association, 14 Gray, 249; Flynn v. Canton Co. of Baltimore, 40 Md. 312. These cases are all in point, for they are exactly like the case at bar. It was held in each of them that the only liability of the delinquent, under the ordinance, was to pay the penalty prescribed by it, and that the action could not be maintained. These decisions, in the absence of any case to the contrary, are entitled to our respect as authority, and for the reasons above indicated we agree with them. See Brown, Adm'r, v. Buffalo State Line R. R. Co. 22 N. Y. 191; Administrator of Chambers v. Ohio Life Trust Co. 1 Disney, 327, 336.

Note by the Rbpoktek.— See Amer. Law Review, vol. 12, pp. 189,101, October, 1877, for comments on this.case.

The defendant’s motion in arrest of judgment is sustained.

Judgment arrested.

Note by the Chief Justice. — The Statute of Westm. II. cap. 50, as translated in the Second Institute, 485, is as follows, to wit: “ All the said statutes shall take effect at the feast of St. Michael next coming, so that by occasion of any offence done on this side the said feast, contrary to any of these statutes, no punishment (mention whereof is made within these statutes) shall be executed upon the offenders. Moreover, concerning the statutes provided where the law faileth, and for remedies, lest suitors coming to the king’s court should depart from thence without remedy, they shall have writs provided in their cases, but they shall not be pleaded until the feast of St. Michael aforesaid.” The chapter closes a series of chapters or statutes known as the Statute of Westminster II. It prescribes the time when the statutes shall take effect, but directs that writs under certain of them shall be framed before they go generally into effect, which, however, are not to be used until afterwards. The chapter does not relate to statutes generally, and certainly not to statutes subsequently enacted. It can affect such statutes, if at all, only by construction, or as declaratory of the common law. The remedy by an action on the case is given by the Statute of Westminster II. cap. 24. But that chapter creates no new liabilities, it merely gives a remedy.