62 Fla. 275 | Fla. | 1911
(After stating the facts.) — Municipalities can lawfully exercise only such rights, powers and authority and perform such duties as are conferred upon them expressly or impliedly by valid provisions of law; and such rights, poivers, authority and duties are exercised or performed through officers, agents or employes, the municipalities being corporate entities existing only in contemplation of law.
In the absence of organic or statutory provisions regulating the subject, the liability of a municipal corporation in damages for injuries to others caused by the negligence or other torts of its officers, agents and employes, while acting within the scope of their authority for the municipality, depends upon the nature of the authority being exercised or of the duty being performed or omitted by the officers, agents or employees. Where the authority being exercised is essentially govereñtal in its nature, the
Where a tort is committed by the officers or agents of a municipality in the exercise of authority or in the performance of a duty that is not conferred or imposed upon the municipality by law, the municipality is not liable, for if a municipality has no lawful authority, its officers cannot assume it so as to bind the municipality'.
Municipalities are not liable in damages for injuries to property caused by the wrongful acts of the officers or agents of the municipalities where such wrongful acts are not done in the exercise of any authority or duty conferred by law upon the municipalities.
The liability of municipalities for the torts of their agents is predicated upon the theory that the municipalities through their agents wrongfully perform or omit to exercise some authority or duty (not essentially governmental in its nature and involving primary discretion) that is imposed by law upon the municipalities; and if a tort that caused an injury was committed in doing something the municipality had no authority to do, the tort may be that of the persons committing it, but not of the municipality, and the doctrine' of respondeat superior does not apply to render the municipality liable in damages for such tort. A municipal corporation is not liable for tortious acts committed by its officers and agents, unless the acts complained of were committed in the exercise of some corporate power conferred upon it by law, or in the performance of some duty imposed upon it by law. Such a corporation may be liable in damages for injuries .to others proximately resulting from- the doing by its officers in an unauthorized manner, of a lawful and authorized, act, but not for doing an unlawful or prohibited
The declaration alleges that “the said defendant by and through its mayor, chief of police, and by and through its servants, agents and employes acting under the orders of its said mayor and chief of police, entered in and upon the said premises and building of the plaintiffs aforesaid, and forcibly, violently and unlawfully ejected the plaintiffs * * * therefrom, and closed and locked said building and stationed police officers and guards about said premises to prevent, and who did so prevent the plaintiffs and their said tenants from the use of said premises and from access to their said records, for a long space of time * * and in so ejecting the plaintiffs, * * * and their tenants from said premisis and building, destroyed, mutilated, injured, damaged and demolished the said furniture and fixtures of the plaintiffs and injured and damaged said building * * * and then and there abstracted and took and carried away the books of account, minutes, payrolls, leases, contracts, policies, charters and valuable papers, instruments and records” &c. These allegations taken with the orders clearly indicate that the acts complained of were such acts as are not within the authority or duty of the municipality to lawfully do, to command or to permit. There is no allegation that the acts complained of were done in abating a supposed nuisance. No color of authority is
In the case of City of Orlando v. Pragg, supra the property taken being .wild animals, reptiles, &c., was of such a nature that it could have been a. nuisance, and the city could have at its peril acted for itself or under the direction of the board of health in abating a nuisance; and where the act of abating the nuisance is a corporate rather than a governmental function, the city would be liable for torts committed in exercising its independent authority or in performing the duty imposed upon it by the board of health. For these reasons the declaration in that case was not subject to the demurrer. Here the property taken cannot be regarded as a nuisance; and if the place was the scene of a breach of the peace, the city had no authority to take or to destroy or appropriate the property to preserve the peace, even if keeping the peace were not a primary governmental function, for the tortious performance of Avhich by its officers the municipality is not liable in damages. The acts of the officers complained of in this case were not authorized to be done by the municipality, and as' the authority could not be assumed so as to bind the municipality, it is consequently not liable in damages for the tort alleged.
The judgment is affirmed.
