47 W. Va. 645 | W. Va. | 1900
D. C. Wood & Co., plaintiffs, sued the city of Hinton, defendant, in the circuit court of Summers County, and recovered a judgment for $-. Defendant obtained a writ of error. The whole questioned involved rises on the demurrer to the declaration which is as follows: “State of West Virginia, County of Summers — ss.: In the circuit court thereof. D. C. Wood and W. H. Griffith, partners in trade under the firm name and style of D. C. Wood & Co., complain of the city of Hinton, a municipal corporation duly organized and existing under the laws of the State of West Virginia, of a plea of trespass on the case, for that theretofore, to wit, on the-day of-, 1897, at the time of the damage and injury to the said plaintiffs as hereinafter mentioned, in the city of Hinton as aforesaid, the plaintiffs applied to the common council of the said city of Hinton, then and there assembled for the purpose of transacting business for the said city of Hinton, for permission to erect a carpenter shop on a certain lot in said city (said lot being on Third avenue, and known as the ‘Saul Lot’); and the said common council, well knowing of what the said carpenter shop consisted, and how the same was to be operated, granted the plaintiffs the privilege to erect said
This declaration states no cause of action against the city of Hinton, whatever. The city of Hinton, as a branch of the State government, cannot be held liable in a suit for damages for any act done by its officers in discharge of, or attempting to discharge, its governmental powers. Among these, as provided in the statute, is the power to prevent injury or annoyance to the public or individuals from anything dangerous, offensive, or unwholesome; to abate or cause to be abated anything which, in the opinion of the majority of the whole council, shall be a nuisance; to regulate the keeping of gunpowder and other combustibles. None of these are what are called positive or administrative powers, but they are all purely governmental and discretionary. The refusal of the town authorities to permit the use of a steam engine in the building complained of is probably because of its being a nuisance, either from fire, smoke, or noise, or all combined. Whether it was so or not, that was a matter for the council to determine; and, it having so determined, its action is final, unless annulled by proper judicial proceedings. This right of the council seems to be conceded, but the complaint is that the council first gave permission, and then, after it had been acted upon by the plaintiffs at large expense, it revoked the authority to use a'steam engine, and thereby cause the plant-iffs loss and damages. If the council is wrong in the course it pursued, the town is in no sense liable. Even after the works were fully erected and in operation the town would have had the right to abate them, if they proved o be a nuisance to the public or individuals. This belongs to its governmental and public powers. Every person engaged in a business that may become a nuisance must take
Reversed.