Wallace v. Town of Norman ( 1900 )

Opinion of the court by

Irwin, J.:

The first assignment of error in this case is, and in fact the only assignment of -error is, that the court erred in sustaining the demurrer of the defendant to the petition of the plaintiff, and in dismissing plaintiff’s cause of action. The allegations of the petition are that a conspiracy existed among the inhabitants of the town of Norman, and that the object of said conspiracy was to prevent by means of threats and physical violence, the laboring, living or lodging within the corporate limits of said town, of colored citizens of the United States. The only allegation in said petition in any way connecting said defendant, to-wit, the town of Norman, with said conspiracy, is in the seventh paragraph of said petition, wherein it is said:

“The defendant town, and all of its officers and agents, including its president, trustees) and marshal, at all of the times herein mentioned, since the inception of said conspiracy as aforesaid, have had full knowledge and notice of the existence of said conspiracy, and of the names of said conspirators, and of the .said unlawful objects and purposes thereof, and of the said unlawful acts committed by said conspirators pursuant to said conspiracy within tkie three years last past,” etc.

We are at a loss to understand how a municipal corporation, such as the town of Norman, in its official capacity, and as á body corporate, could be a party to a conspiracy. We can understand how the officers, who, for the time being, may be exercising, in their official capacity, the authority 'delegated to a town or city, might, in their individual capacity, be a party to a conspiracy, but a municipal corporation, which is limited by law to the purposes and object of its creation, to-wit: the ipaintaining and exercising of the powers of local government, cannot, in its municipal capacity, be a party to a conspiracy. If the conspiracy existed as described in this petition, or, taking the petition and construing it -by the ordinary rules of construction,' it isimply means that there existed, in the minds of the inhabitants of that locality, certain prejudices against the colored people; this was a condition of the public mind, over which the corporate authorities of Norman could exercise no rightful jurisdiction. The corporate authorities of a city or village may prescribe by ordinance as to the actions' and conduct of the people; but no such village has a right to legislate, by ordinance, as to the thoughts, feelings, biases or prejudices that shall exist in the minds of the inhabitants who compose that particular locality. It is cpntended in plaintiff’s brief that one of the subjects, over which, authority is delegated to the city is, to provide means “for keeping and preserving the peace and quietness of .such town.” This simply means that the town of Norman, in its official capacity, as a municipal corporation, shall have the night, and it shall be the duty, of such town, to make and pass all necessary ordinances for the protection and welfare of the people in this particular.

There is no allegation in the petition that the municipal authorities of Norman have been requested to pass ordinances upon this subject and refused; there is nothing in the petition which tends to .show that the ordinances already passed by the town of Norman, on this subject, are not such as are proper, lawful, legal and sufficient. Now, when a city has passed the necessary ordinances on any subject delegated to its charge, such ■ordinances become laws, enforcable by any person, and it becomes the duty of all persons to assist in their enforcement; in fact, ordinances of every state and village, like the laws of every state and territory, are enforcable on the application of any person, when such application is made to the proper tribunal or officer: While ■it is true, in this petition, the purpose of the conspiracy was clearly set forth, and its existence is positively alleged, still, there is nothing in the petition which alleges any overt act of conspiracy, no definite details of such an organization, nothing that would show-that ■such an organization had any tangible existence, by means of which it could he identified or suppressed by the city authorities of Norman.

Now if the contention of the plaintiff is true that it was the duty of the town of Norman to suppress and abolish this alleged conspiracy, how could this have been accomplished, legally, by the city of Norman? It is a well known fact that the only mode of redress of grievances against its inhabitants by a city, and the only manner of enforcing any right delegated to them as a city, is by the pasing and enforcing of ordinances. Now if this conspiracy existed in consequence of or on account of the failure of the city of Norman t» pass or enforce ordinances on the subject,, then this failure should have been clearly and definitely set out in the petition of the plaintiff, but there is no such allegation; and not having so set opt, we are constrained to presume that the city of Norman had passed necessary, proper and sufficient ordinances on this subject. When they have legally legislated by ordinance on the subject, they have then put it in the power of every citizen, who may live or be in said city, to apply to the proper courts for thie 'enforcement of said ordinances; and for the punishment of every violation thereof. We cannot believe that under the law a municipal corporation can be accountable for the unauthorized acts of its servants, or the criminal acts of its employes, unless such acts are within the scope of the authority of such servants or employes. If acting beyond or outside the scope of their ■authority, then, in such acts, they are not the servants or employes of the city.

In Dillon, on Municipal Corporations, volume 2, second edition, page 877, in speaking of the liability of municipal corporations for the acts of "its officers, it is said: “To create such a liability it is fundamentally necessary that the act done which is injurious to others must be within the scope of the corporate powers as prescribed by charter or positive enactment (the extent of which powers all persons are bound, at their peril, to know;) in- other words, it must not be ultra vires' in the sense that it is not within the power or authority of the corporation to act in reference to it under any circumstances. If the act complained of lies wholly outside of the general or -special powers of the corporation •as conferred in its charter or by statute, the corporation can in no event be liable, whether it directly commanded the performance of the act, or whether it' be done by its officers without its express command.”

Again, the same distinguished author, at page 879, of the same volume, makes use of this language: “The principle that a corporation is bound by the acts of its officers, only when within the charter or scope of their powers, and-that acts outside of the powers of the corporation, or of the officers appointed to act for it, are void as respects the corporation, is vital; and the opposite doctrine ha® no support in reason, and very little, if any, in the judgments of the courts.”

In Dillon on Municipal Corporations, volume 2, second edition, page 868, the doctrine is laid down: “Public or municipal corporations 'are under no common law liability to pay for the property of individuals destroyed by mobs or riotous assemblages, but -in such caises the legislature may constitutionally give a remedy, and regulate the mode of assessing the damages.”

In the case of Western College v. Cleveland, 12 Ohio State 375, it was held that a provision mter alia in the constituent act of the city, that it shall be tbe duty of the council to regulate the police of the city, preserve the peace, prevent riots-, - disturbances, and disorderly assemblages, had reference to the passage o-r ordinances to ble enforced by officer® appointed for the purpose, and did not make the city responsible for the riotous' destruction of property, or the neglect of the officers of the city in not preventing such destruction.

We are clearly of the opinion that in the absence of any legislative provision, malting, the city liable, they cannot be held liable for the acts- of a mob, in the destruction of life and property. It is alleged in said petition that certain city officers, naming them, were present, aiding and abetting said riot and said mob, but it cannot be claimed, it. seems to us, that when such officers were present, aiding, or assisting or abetting such mob, that they were then acting within the scope of their authority as officers of the defendant city, as a corporation, but that their acts, at that time, were in no way authorized by th-e city; but it seems to us that before thje city could he held liable in thi® case, it must be shown, by the petition, that there has been some overt act done by the city, or some omission on the part of the city, of some duty enjoined on it by law. It seems t® us, that, talcing the allegations of the petition as true, the only thing the city government could have done by way of preventing the said mob from committing the acts complained of, would have been to have passed ordinances on the subject, prohibiting the acts’ and prescribing the penalty therefor. And such petition does not allege that such ordinances were not passed by the city; and, as the passage of such ordinances would have been the proper exercise of the authority delegated in the premises, to the city, we think it proper to indulge in the presumption that the city authorities have done their duty in this particular, and that said ordinances were passed and in force.

It is alleged in the petition that various persons have been, in consequence of this conspiracy, assaulted, beaten and misused, but, it seems to us, these facts would not, of themselves, make the city liable. It certainly could not be contended that the city is liable for every injury that may result to a person in consequence of a violation of an' ordinance, because that ordinance has been repeatedly violated. This petition states nothing more than that the plaintiff has been injured and damaged by a mob, or the unlawful act of a number of malicious persons, within the corporate limits of the city of Norman-, and that the names of the persons so committing suco acts was known to the defendant. But we fail to see anywhere in the petition any allegation which would. m.ake the city of Norman liable as a" municipal corporation. If unlawful acts have been done by individuals, whether such persons were holding municipal offices in said city of Norman or not, whereby the plaintiff has been damaged and has sustained injury, then -such persons, in their individual capacity, are liable, and an action may be brought against them, but it seems to us there is nothing in this petition, when measured by the well known and recognized principles of the law, that would make the city of Norman, as a city, liable. City authorities make rules to regulate the conduct of people within the limits1 of the city, but no city can, by law, regulate or control the thoughts, feelings or prejudices of the people. If the city can be held responsible for the likes and dislikesi óf its people, fEen, with equal propriety, could it be said, they are responsible for the health, religion or politics of the community. The secret thoughts, feelings, likes and dislikes, of the people are beyond legislative control; it is only the outward manifestations, as exemplified in conduct, that can be regulated and controlled by law. It might be beneficial to the human family, if by legislation, good health, and not disease, could be made contagious, but under-the present system of jurisprudence, this cannot be done.

Hence, we think the demurder to said petition was properly sustained. Finding no error in the record, the decision of the district court is affirmed.

Burwell, J., having presided in the court below, not sitting; all of the other Justices concurring.