Peck v. City of Austin , 22 Tex. 261 ( 1858 )

Roberts, J.

This is an action brought by the City of Austin against Peek and de Normandie, on an obligation given for the rent of a butcher’s stall, in the city market, bid off by Peck, and occupied by him for one year.

Defendants pleaded, that the city passed an ordinance, establishing the market," and prescribing the mode of selling butchers’ meat in the city, protecting persons who might purchase a license, as did Peck, from competition with unlicensed persons, by inflicting certain penalties upon the latter, and defining the manner in which such penalties should be enforced by the officers of the city. The plea alleged further, that the said officers wilfully neglected their duty, and did not punish certain persons, who violated the provisions of the ordinance, by selling without license, although the same came to the knowledge of said officers; by which, he was not protected in his privilege; and that thereby the consideration of the obligation sued on, for one hundred and fifty dollars, had wholly failed. He alleged that he had paid fifty-five dollars, in advance, which was ample compensation for the use of the stall in the market, which he had occupied. This plea being excepted to, was held to be no defence to the action.

This defence is based upon the supposition, that the city, acting in its corporate capacity, in establishing and regulating a market, by its ordinance, had contracted with Peck, to secure him against such unlicensed competition, in every event.

A slight consideration of the subject will show that this cannot be maintained.

The City of Austin is a municipal government, whose powers are defined and limited by the terms of its charter of incorporation. The exertion of its powers, by its constituted authorities, in prescribing rules of police, and imposing and inflicting penalties for their infraction, is but a mode of exerting the power of the government of the State, within the limits of the city. It is a government within a government. Still they are the same,—the one being the execution of the will of the other, within certain established boundaries of power, and in a certain locality.

This ordinance, then, no more embodies a contract of full indemnity against such unlicensed competition in selling butchers’ meat in the city, than the public act of the legislature of the State, establishing and regulating the license for retailing spirituous liquors, would indemnify against retailing without license. In both cases, there is an undertaking to protect the privilege granted, sub modo. The same undertaking exists to protect all our rights, which the government assumes to protect by the infliction of penalties on those who violate them. The nonfeasance or malfeasance of the officers, to whom is intrusted the duty of punishing such violators of our rights, cannot be recognized in a court of law, as absolving us from the duties of citizenship.

Such corporation, though a municipal government, and therefore public, may also occupy towards individuals the position of a private corporation, and be liable upon its contracts, or for the wrongful acts of its officers, done under its authority, and in pursuance to its will, expressed or implied. Such rule, if applicable to this ease, could not be here enforced; because the act, or non-action, of the officers complained of, was contrary to the will of the corporation, as expressed in the ordinance; which continued in fall force during the whole year. (Thayer v. Boston, 19 Pick. Rep. 511; Martin v. Mayor of Brooklyn, 1 Hill’s Rep. 545; Angell & Ames on Corp. ch. 9, §§ 2, 7, ch. 8, §§ 3, 1; Baily v. New York, 3 Hill’s Rep. 531.)

We are of opinion that the plea was no bar to the action.

Judgment affirmed.