Keller v. City of Corpus Christi
50 Tex. 614
Tex.
1879
Check Treatment
Bonner, Associate Justice.

The plaintiff'brought suit against the city of Corpus Christi for $1,500 damages, being the alleged value of a dwelling-house and appurtenances oxvned by him in that city and destroyed by a hook and ladder company, constituting a portion of its fire department, on the 8th of October, 1877, for the purpose of preventing the spread of a fire. The property was thus destroyed without the consent of the owner, and without compensation *626being made to him, either before or after its destruction. It is alleged in plaintiff’s petition that the hook and ladder company were engaged in the course of their regular employment as agents of the city, under the direction of the acting chief engineer of the fire department, and with the concurrence of the mayor, when they entered and destroyed his dwelling-house and appurtenances.

Defendant demurred, denying any cause of action on the part of plaintiff. The court sustained the demurrer, and the plaintiff declining to amend, the cause was dismissed. Plaintiff gave notice of appeal and assigns as error—

1. The District Court erred in sustaining the defendant’s demurrer.

2. The District Court erred in dismissing this suit.

The city of Corpus Christi was organized under the general law regulating the incorporation of cities of one thousand inhabitants or over. (Laws of 1875, pp. 144, 145.)

Section 116 provides that the city council shall have power to organize fire, hook and ladder, hose and axe companies, fire brigade, &c.; and that they, with such assistant engineers as may he provided for, and the chief engineer shall constitute the fire department of the city; that the engineers shall be chosen in such manner as the department may determine, subject to the approval of the city council, who shall define the duties of said officers; that all of said officers so elected and approved shall be commissioned by the mayor and be governed by. the ordinances of said city relating to the fire department, and that their powers and duties shall be prescribed and defined by the city council.

Section 117 provides that when any building in the city is on fire it shall be lawful for the chief or acting.chief engineer, with the concurrence of the mayor, to direct such building, or any other buildings which they may deem hazardous and likely to take fire and communicate to other buildings, to he torn down or blown up and destroyed; and that no action shall be maintained against any person or against the *627city therefor; but any person interested in any such building so destroyed or injured, may, within six months, and not thereafter, apply in writing to the city council to assess and pay the damage he has sustained, and if the city council and the claimant cannot agree on the terms of adjustment, then the application of such claimant shall be referred to three commissioners, who shall be qualified voters and owners of real estate in the city, one to be appointed by the claimant, one by the city council^ and the third by both. They shall be sworn faithfully to execute their duty according to the best of their ability; shall have power to subpoena and swear witnesses, and shall give all parties a fair and impartial hearing, and give notice of time and place of meeting; they shall be qualified voters and owners of real estate in the city; shall take into account the probabilities whether the building would have been destroyed by fire if it had not been so pulled down or destroyed; and may report that no damage should equitably be allowed to said claimant. Whenever a report shall be made and finally confirmed for the appraising said damages, a compliance with the terms thereof by the city council shall be deemed a full satisfaction of said damages.

The judgment in this case is sought to be reversed under section 17 of the bill of rights in the Constitution of 1876, which reads as follows: “No person’s property shall be taken, damaged, or destroyed, or applied to public use, without adequate compensation being made, unless by the consent of such person; and when taken, except for the use of the State, such compensation shall be first made or secured by a deposit of money.”

This provision as to the deposit of money-in advance, was evidently intended more particularly to provide speedy adequate compensation for property taken in the exercise of the sovereign right of eminent domain, rendered more frequent by the rapidly-increasing demand for railroads and other works of public improvement.

There is, however, a distinction between the exercise of *628the right of eminent domain, and that of a police regulation to meet an impending peril, hy the destruction of an adjacent building to prevent the spread of fire. The one can await the forms and tardiness of the law; the other is governed by a necessity which knows no law. Delay in the latter case may be certain destruction.

To await the appointment of commissioners, the appraisement of the property, and the payment of the money, is, in cases of eminent domain, doubtless a wholesome regulation, but which, in a case like the one now before court, would be wholly impracticable and could not have been intended by the provision under consideration. (Cooley on Const. Lim., 3d. ed., 572, 526, and note 3, and authorities cited; 1 Dill. on Mun. Corp., sec. 93; 2 Id., sec. 756.) It is said by Clarendon that such unwise delay on the part of the lord mayor of London caused half that city to be burned in the great conflagration of 1665.

In the elaborate case of Russell v. The Mayor of New York, 2 Denio, 461, it is held, that the authority conferred by statute upon the mayor to order such destruction of buildings is not a grant of the right of eminent domain, and is not, therefore, within the constitutional guaranty of compensation.

The plaintiff further contends that the action complained . of was not the exercise of such a public power as would at common law exempt the corporation from liability, but was one of strictly corporate powers, for which the city should make compensation.

In the case of Peck v. The City of Austin, 22 Tex., 263, in discussing the question of the powers of a municipal government, it is said: “ The exertion of its powers by its constituted authorities in prescribing rules of police, * * * * is but a mode of exerting the power of the government of the State within the limits of the city. It is a government within a government. Still they are the same; the one being the execution of the will of the other, within certain established boundaries of power and in a certain locality.”

*629The same principle of a dual government is applied to that of our Federal Union in the case of the United States v. Cruikshank, 2 Otto, 542.

In the leading case of Hafford v. City of New Bedford, 16 Gray, 302, in which the plaintiff claimed damages for injuries by the hose carriage belonging to the fire department, under the management of the city authorities, from negligence of the fire company, it was held, that “ where a municipal corporation elects or appoints an officer in obedience to an act of the Legislature to perform a public service in which the city or town has.no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed, in pursuance "of a duty imposed by law for the general welfare of the inhabitants of the community, such officer cannot be regarded as a servant or agent, for whose negligence or want of skill in the performance of his duties a town or city can be held liable.” To the same effect is the subsequent case of Fisher v. Boston, 104 Mass., 87.

This principle is recognized by this court in the City of Navasota v. Pearce, 46 Tex., 525.

A “public use” is one which concerns the whole community in which it exists, as contradistinguished from a particular individual or numbers of individuals. (Gilmer v. Lime Point, 18 Cal., 251.)

We are of opinion that the destruction of the property complained of was for a public use, and not such private corporate use as would authorize a suit at common law. (Fisher v. Boston, 104 Mass., 93.)

To what extent, then, was the defendant, as a municipal corporation, liable ?

At common law, in cases of this sort, no such liability attached. (2 Dill. on Mun. Corp., secs. 756, 757.) Lord Coke says: “For the commonwealth a man should suffer damage, as for the saving of a city or town a house-shall be plucked down if the next be on fire. This every man maj *630do without being liable to an action.” (Mouse’s Case, 12 Coke, 13, 63.)

To meet this hardship to the owner, the statute of incorporation under consideration was passed,- providing compensation for the destruction of the property, under certain safeguards. Certain named agents, with discretionary powers judicial in their nature, were constituted judges of the emergency, and it was not left to the hasty action of perhaps inconsiderate individual parties.

An effective and speedy remedy wTas given to adjust and make compensation for the loss. This is all that the law requires. (Cooley’s Const. Lim., 559; Railroad Co. v. Ferris, 26 Tex., 588.)

Such suit being a permissive one, authorized by statute against a quasi - sovereignty, the statutory remedy alone can be pursued. (2 Dill. on Mun. Corp., 759; Cooley’s Const. Lim., 561.)

The plaintiff’s right of action, if any he had, should have been pursued under the statute; and for the alleged failure of the defendants to appoint a commissioner, he should have applied for a mandamus.

The plaintiff neither by the common law nor the terms of the statute being authorized to maintain this suit, the judgment below is affirmed.

Aeeirmed.