Dargan v. Mayor of Mobile , 31 Ala. 469 ( 1858 )

WALKER, J.

— The corporation of the city of Mobile had authority to pass ordinances providing for the arrest and punishment of slaves abroad in the city, after nine o’clock at night, without written permission; or assembling in numbers' of four or more, off the owner’s premises, without the permission of the mayor or one of the aider-men. — See the charter of the city, in Pamphlet Acts of 1843-44, p. 180, § 15. This power was purely political in its character, and exclusively for the benefit of the public. As to that power, the corporation was a government, invperium in imperio. The employment of the officer for whose negligence in the discharge of his duty the corporation is sued, was the necessary; proper and authorized means for the execution of that power; and the action of the officer, from its nature, was not susceptible of supervision by the corporation. — See 37th section of charter. In the legislative adoption of the ordinances described in the pleading, and in the appointment of the officer, the corporation exercised a lawful authority. It is not alleged tbat the corporation was guilty of any negligence or misconduct in the selection of the officer.

The question here is not as to the liability of a corpo ration for the omission to discharge its duty; nor for the performance of an unlawful act by it or its authority; nor for the exercise of a power not delegated; nor for the negligence of its agents, or officers, in the performance of an act for the private benefit of the corporation, or done under the immediate supervision of the corporation. The question of this case is, whether a municipal or public corporation is liable in damages, for an injury resulting from the careless or negligent official conduct of one of its officers, in whose selection there was no negligence, and whose employment was the lawful and necessary means of executing a governmental power vested in it for the public benefit, and whose acts are not done under the supervision of the corporation. This question we decide in the negative.

Because the corporation is, as to the passage of the ordinances and the appointment of the officer described in the pleadings, a government, exercising political power, it is irresponsible for the official misconduct alleged, upon the same principle which generally protects-governments and public officers from liability for the misfeasances and malfeasances of persons necessarily employed under them in the public service. — Story on Agency, §§ 319, 319 a, 319 b, 320, 321; Dunlap’s Paley’s Agency, 376. Municipal corporations, quoad hoc, stand upon the same foundation with public officers, counties, townships, and other quasi corporations, charged with some public duty, or invested with some portion of the authority of the government, where the employment of officers is necessary and lawful.

The only one of the authorities cited by the appellant, which possibly sustains his position, is Johnson v. Municipality No. 1, 5 La. 100. In the case of Thayer v. The City of Boston, 19 Pick. 511, the corporation was held to be liable for an injury produced by the unlawful act, done under its authority, of obstructing the public highway. It was decided in the Rochester White Lead Co. v. City of Rochester, 3 Comstock^ 463, that a city corporation was responsible for injury resulting from the unskillful and careless manner in which a sewer was constructed. That case draws the distinction between judicial and ministerial duties; recognizes the adoption of the ordinance for the construction of the sewer as a judicial, and its actual construction ¿s a ministerial duty; and holds the corporation responsible for the discharge of the latter. The duty of constructing the sewer was discharged by the corporation itself, through its employees; the work was under the supervision and control of the corporation; and the law devolved upon it an obligation to complete the work with reasonable skill and care. In those particulars, that case differs from this. The ministerial duty of executing the ordinances described in the declaration was one which, from its very nature, had to be discharged by officers performing each particular act free from the control and supervision of the corporation. The arrest of slaves violating those ordinances is an act of nature kindred to the arrest of criminals by the sheriff or marshal. The postmaster-general is not responsible for the official misconduct of his deputies, because their duties are of a public nature, and for public purposes, and a supervision of their acts is impracticable. — Story on Agency, § 318. Mnnicipal corporations must have the benefit of the same principle, for it is as applicable to them as to any officer of the government.

In the case of Lloy v. The Mayor and Aldermen of New York, 1 Selden, 369, the liability of the corporation, for an injury resulting from the negligence of persons employed in the repair of a sewer, was placed upon the ground, that the duty of repairing sewers was private, and the corporation was responsible for the negligence of its agents in the discharge of its private, but not of its public duties. We are not sure that the duty of the coi’poration in that case was appropriately classed as private, or that the decision itself was correct in departing from the principle of the Rochester White Lead Co. v. City of Rochester, supra. But, if the doctrine of that case were applied to this, it would be fatal to the action; for the duty of arresting slaves, tinder the ordinances of the corporation, was clearly and exclusively public, and for the benefit of the public.

The supreme court of New York did not go so far in the case of Bailey v. Mayor of New York, 3 Hill, 531, as it did in the. subsequent cases which we have noticed above.- In that case, the liability of the corporation, for the misconduct of its agents and officers, is limited to that class of cases where they are employed about its private interests; as, for instance, in the improvement of its private property. The principle there laid down would exempt from .responsibility for injuries resulting from the negligence of the employees of the corporation in works upon the public streets and sewers. The same case was before the court of errors; and there Chancellor Walworth held, that the city of New York was liable for. an injury done by the washing away of the dam across the Croton river, upon the ground that the land upon which the dam was situated belonged to the corporation, and it was the duty of the proprietor of the land to see that it was so used as not to become noxious to the occupiers of property below. — 2 Denio, 433.

In Pack v. Mayor, &c., of New York, 4 Selden, 222, it was decided, that a city corporation was not liable for injuries occasioned by the workmen of a contractor with the corporation for grading the street.

In Delmonico v. Mayor, &c., of New York, 1 Sandf. S. C. R. 222, it was decided, without a discussion of the principle involved, that the city was responsible “for the negligence, unskillfulness ormalfeasance of its agents and contractors, engaged in the construction of its public works.” — See, also, Mayor of New York v. Furze, 3 Hill, 612. That case is distinguishable from this, in the same particulars with the case of the Rochester White Lead Co. v. City of Rochester, supra.

In North Carolina, municipal corporations are held to be liable for damages accruing from the unskillful and incautious manner in which a public street was graded. Mears v. Commissioners of Wilmington, 9 Iredell, 73. In a very able opinion, it is argued, that the improvement of the streets by grading is really for tlie private benefit of the corporators, although the public derive an incidental benefit. There is nothing, however, in that opinion, which sanctions the proposition, that the arrest of slaves, abroad at unreasonable hours, or congregating in dangerous numbers, is an act for the private benefit of the corporation. It contains nothing in conflict with the idea, that the authority to do such an act is, like the administration of the criminal law, in promotion of the public safety and morals, and, therefore, public in its nature, although the particular community may be specially benefited.

The case of McComb v. Town Council of Akron, 15 Ohio, 474, does not touch the principle of this case. It goes to the extent of making a corporation responsible for an injury by the lawful and authorized grading of the street to an adjoining proprietor, but does not touch the question of liability for the negligence of an officer, necessarily employed beyond the supervision of the corporation, in the arrest of violators of its ordinances. The decision in the City of St. Louis v. Gurno, 12 Missouri, 414, does not touch the question here, but is in conflict with the decision of the Ohio court.

The case of Johnson v. Municipality No. 1, 5 La. Ann. R. 100, is the ease which we conceded in the outset of this review of authorities might sustain the position of the appellant. In that case, the municipality was subjected to the payment of damages caused by the neglect of the keeper of the police jail to advertise the imprisonment of a runaway slave. It is possible that that ease may be distinguished in the susceptibility of the jailor’s conduct of ■supervision. But it is unnecessary that we should pause to make such a distinction. The same court, in the subsequent ease of Stewart v. City of New Orleans, 9 La. Ann. R. 461, held, that the corporation was not liable for the negligence of the watch in the arrest of a slave, whereby the slave was killed. That case was strikingly similar to this, and involved the same principle. It asserts the doctrine, that municipal corporations enjoy the exemption of government from responsibility for its own acts and the acts of its officers, deriving their authority from the sovereign power, whenever it exercises powers which it possesses for public purposes, and which it holds as a part of the government of the country.

The following language is used by Mr. Justice Cowen, in the case of Martin v. Mayor of Brooklyn, 1 Hill, 545 : “ It (a municipal corporation) is a political body, bound, I admit, and liable to an action, when incurring a debt through its corporate officers, acting within the line of their duty; but not for either misfeasance or nonfeasance committed by independent corporate officers.” — Fox v. Northern Liberties, 3 W. & S. 103.

Our review of the authorities shows, that there is no great uniformity of decision as to the principle which governs the liability of municipal corporations for the misfeasances and malfeasances of their agents. None of them, however, are in conflict with .the doctrine laid down by us, as controlling the decision of this case, unless we so regard the case from 5th La. Ann. R., from which all weight as an adverse Authority is taken away by the subsequent decision of the same court. Having decided this case without involving the points of contest among the decisions, it is not incumbent upon us to attempt to harmonize them, or to pass our judgment upon any of them as expositions of the law. We have stated and decided the question of the liability of the appellee upon the circumstances of the case. We do not inquire, and do not mean to decide, whether the concurrence of all the circumstances from which the exemption from liability in this case is deduced, is indispensable to the conclusion we have attained. We decide this case upon grounds which we conceive perfectly safe and sound, and we leave any future case which may not be identical with it to be met when it may arise.

The judgment of the court below is affirmed.