Speir v. . City of Brooklyn ( 1893 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The finding of the trial judge that the use of the street for the discharge of fireworks constituted a public nuisance, is amply justified in view of the circumstances. It has been decided in some cases that the discharge of fireworks in the streets of a city or village, is a nuisance per se, and subjects persons engaged in the transaction to responsibility for any injury to person or property resulting therefrom. (Jenne v.Sutton, 43 N.J.L. 257; Conklin v. Thompson, 29 Barb. 218.) It may be doubted whether the doctrine in its full breadth can be maintained. The practice of making the display of fireworks a part of the entertainment furnished by municipalities on occasions of the celebration of holidays or the commemoration of important public events, is almost universal in cities and villages, and we are not prepared to say that this may not be done, and that streets and public places may not be used for this purpose, under the supervision of municipal authorities, due care being used both as to the place selected, and in the management of the display, without subjecting the municipality to the charge of sanctioning a nuisance and the responsibility of wrong doers.

But the circumstances in the present case do not take the transaction in question out of the category of nuisances, or relieve the parties who conducted or promoted the affair from liability for the injury occasioned. The discharge of fireworks in a city under any circumstances is attended with danger. In the present case the danger was greatly enhanced by the location. It was at the junction of two narrow streets of a large city, completely built upon, and where any misadventure in managing the discharge would be likely to result in injury to persons or property. The display was of considerable magnitude and the explosives, especially the rockets, were heavily charged and when exploded, were carried with immense velocity. It was managed by private persons under no official responsibility, and no municipal or public interest was concerned. Under the circumstances, in view of the place, the danger involved and the occasion, the transaction was an unreasonable, unwarranted and unlawful use of the streets, exposing persons and property to injury, and was properly found to constitute a public nuisance.

The judgment below adjudges that the city of Brooklyn is liable for the injury sustained by the plaintiff and this is the only question in the case. That a municipal corporation may commit an actionable wrong and become liable for a tort is now beyond dispute. If the city directed or authorized the discharge of the fireworks which resulted in the injury complained of, it is we think liable. The inquiry is whether the city of Brooklyn did anything which as to this plaintiff placed it in the attitude of a principal in carrying on the display. The mayor of the city, its chief executive officer, expressly authorized it, assuming to act under an ordinance of the common council. In so doing and in construing the ordinance as authorizing him to grant a permit to private persons to use the public streets for the discharge of fireworks, he was following the practice which had long prevailed, and so far as appears no question had been raised that such permits were not within the ordinance. The permit when given and communicated to the police was understood as preventing any police interference with the act permitted, and it had that effect in the case in question. The city had power to prohibit or regulate the use of fireworks within the city and to enact ordinances upon the subject. The ordinances passed were notultra vires in the sense that it was not within the power or authority of the corporation to act in reference to the subject under any circumstances. (See Dillon on Mun. Corp. § 963 etseq.) It is the settled doctrine of the courts that a municipality is not bound merely by the assent of its executive officers to wrongful acts of third persons, nor could the mayor bind the city by a permit, for the granting of which he had no color of authority from the common council, and which was not within the general scope of his authority. (Thayer v. City ofBoston, 19 Pick. 511.) If the permit was in fact authorized by the ordinance the city would, as we conceive, be liable, although the particular act authorized was wrongful. For a mistake in the exercise of its powers, or by acting in excess of its powers upon a subject within its jurisdiction, whereby third persons sustain an injury, there seems to be no reason in justice which should deny the injured party reparation. The common council is the governing body. It represents the corporation, and its acts are the acts of the corporation when they relate to subjects over which the corporation has jurisdiction. It is true that the power to pass ordinances and to regulate the use of fireworks did not embrace a power to authorize or legalize nuisances. But if the ordinance transcended the power of the common council in this respect, the misconstruction of the common council of the extent of its powers in dealing with the subject, which was concededly within its power of regulation, does not, we think, within any just view of municipal exemption from the consequences of unauthorized and wrongful acts of the governing body, exempt the city from liability. (See Cohen v. Mayor,etc., 113 N.Y. 532.) But it is claimed that the ordinance did not by its true construction authorize the mayor to grant permits to use the streets for the discharge of fireworks. The contention is that there is an implied limitation that the permit should extend only to proper and suitable places other than the public streets. But there is no such limitation in terms in the ordinances, and the streets are not excepted from the power granted, and the case shows that the ordinance has been acted upon for many years, and has never been construed as now claimed. We are not prepared to say that the legal construction of the ordinance is not that which is now claimed by the counsel for the city, or that there is not to be read into it the limitation claimed. But the ordinance is at least indefinite and ambiguous. It might well be construed by laymen as it has been construed by the executive officers of the city. The ordinance was in fact the reason for the granting of the permit in this case. We think that as to the plaintiff, who has suffered the injury, the city is bound by the construction of the ordinance placed upon it by the mayor, and upon which for years the mayor had acted.

We think the judgment is sustainable and it should, therefore, be affirmed.

All concur.

Judgment affirmed.