Love v. City of Raleigh

MONTGOMERY, J., did not sit. The principal questions presented by this appeal are: first, whether the City of Raleigh was empowered by any general or special statute to purchase fireworks and order a committee to direct the manner of making the display; second, whether, if no such authority had been delegated to the municipality, it would be answerable for the wrongful conduct of agents acting within the scope of its instruction to them, but in the exercise of authority not delegated to it by the Legislature.

It will possibly aid us in the elucidation of these questions to (305) lay down some general fundamental rules defining and fixing the limits of municipal powers. So long as a city keeps within the purview of its delegated authority, it is not responsible for any act of its agents, done in the exercise of its judicial, discretionary or legislative purview, except where subjected to such liability by some express provision of the Constitution or of a statute. Moffitt v.Asheville, 103 N.C. 237; Hill v. Charlotte, 72 N.C. 56; 1 Sherman Redfield on Neg., sec. 262; Robinson v. Greenville, 42 Ohio, 625. But when such a corporation is acting in its ministerial capacity or its corporate as distinguished from its governmental character, in the exercise of powers conferred for its own benefit and assumed voluntarily, it is answerable for the torts of its authorized agent, subject to the limitation that such wrongful acts must not only be within the scope of the agency, but also within the limits of the municipal authority. Moffitt v. Asheville, supra, 254; 2 Dillon Mun. Corp. (4 Ed.), sec. 968 (766).

In the section cited above Judge Dillon says: "If the act complained of necessarily lies wholly outside of the general or special powers of the corporation, as conferred by its character or by statute, the corporation can in no event be liable to an action for damages, whether it directly commanded the performance of the act or whether it be done by officers without its express command; for a corporation cannot, of course, be impliedly liable to a greater extent than it could make itself by express corporate vote or action." Referring especially to the wrongful acts of agents of municipalities, same author says in a subsequent section (969a): "As to torts or wrongful acts not resting upon contract, but which areultra vires in the sense above explained (viz., wholly and necessarily beyond the possible scope of the chartered powers of the municipality), we do not see on what principle they can (306) create an implied liability on the part of the municipality. If they may, of what use are the limitations of the chartered corporate powers?" Thompson on Neg., 737; Smith v. Rochester, 76 N.Y. 506; Mayor v.Cundiffs, 3 N.Y. 165.

It is not denied that if the agent, in the course of his employment, is guilty of negligence or commits even a wilful trespass with the belief and intention that the act will inure to the benefit of the principal, then not only does the doctrine of respondeat superior apply, but both principal and servant may be made to answer for the resulting damage. See authorities cited in Tate v. Greensboro, 114 N.C. on pp. 416 and 417, especially 2 Dillon Mun. Corp., secs. 979,980, et seq.; Hewitt v. Swift, 3 Allen, 420;Johnson v. Barber, 5 Gilman (Ill.), 425; Wright v. Wilcox, 19 Wendell, 343.

"Without express power," says Judge Dillon (1 Mun. Corp., sec. 149-100), "a public corporation cannot make a contract to provide for celebrating the Fourth of July or to provide an entertainment for its citizens or guests. Such contracts are void, and, although the plaintiff complies therewith on his part, he cannot recover of the corporation." Hodges v. Buffalo, 2 Denio (N. Y.), 110; 2 Dillon, sec. 916, et seq.; Austin v. Coggeshall,12 R. I., 329.

It is needless to cites further authority in support of the proposition that if a city is not empowered to contract a debt for the purpose of making a display on a national holiday or on such occasion as the centennial anniversary of its existence as a municipality, it would follow, of necessity, that it could not, by empowering agents to supervise a display that it could not lawfully pay for, subject its taxpayers to liability for the wilful wrong or negligence of such agents, when they are acting entirely outside of the scope of any duty that the city is authorized to impose. Dillon Mun. Corp., sec. 969a. A municipality is not answerable for torts of a servant, except where the wrong complained of (307) is an act done in the course of his lawful employment, or an omission of a duty devolving upon him as an incident to such service.

Before entering upon the consideration of the sufficiency of the statutes relied upon to authorize the action of the mayor and aldermen of the city in making an appropriation and appointing a committee to purchase the necessary articles and to supervise the pyrotechnic display on the occasion referred to, it is perhaps best to recur to the rule that a municipality is clothed with those powers only which are granted in express terms, or necessarily or fairly implied from or incident to those expressly granted, and which it is essential to exercise in order to carry out objects and purposes of creating the corporation. 1 Dillon Mun. Corp., sec. 89 (55); S. v. Webber, 107 N.C. 962.

In all of the cases relied upon by plaintiff's counsel it seems that the municipalities had the authority to pass an ordinance or make an order under color of authority. It has not been contended or alleged that the action is founded upon the creation of a nuisance by the city, nor can it be successfully maintained that the use of fireworks is analogous to the case of blocking up a public highway which it is the duty of the municipality to maintain in good condition.

The charter of the city (chapter 243, Laws 1891) grants to the mayor and aldermen, when assembled, the following powers:

"Sec. 31. That the aldermen, when convened, shall have power to make, and provide for the execution thereof, such ordinances, by-laws, rules and regulations for the better government of the city as they may deem necessary: Provided, the same be allowed by the provisions of this act and be consistent with the laws of the land.

"Sec. 32. The board of aldermen shall contract no debt of (308) any kind unless the money is in the treasury for its payment, except for the necessary expenses of the city government.

"Sec. 33. That among the powers hereby conferred on the board of aldermen, they may borrow money only by the consent of a majority of the qualified registered voters, which consent shall be obtained by a vote of the citizens of the corporation, after thirty days' public notice, at which time those who consent to the same shall vote ``approved,' and those who do not consent shall vote ``not approved.' They shall provide water and lights, provide for repairing and cleansing the streets, regulate the market, take all proper means to prevent and extinguish fires, make regulations to cause the due observance of Sunday, appoint and regulate city policemen, suppress and remove nuisances, regulate, control and tax the business of the junk shops and pawn-shop keepers or brokers, preserve the health of the city from contagious and infectious diseases; may provide a board of health for the City of Raleigh and prescribe their duties and powers; provide ways and means for the collection and preservation of vital statistics; appoint constables to execute such precepts as the mayor or other persons may lawfully issue to them to preserve the peace and order and execute the ordinances of the city; regulate the hours for sale of spirituous liquors by all persons required to be licensed by the board, and during periods of great public excitement may prohibit sales of spirituous liquor by all such persons for such time as the board may deem necessary; may pass ordinances imposing penalties for violations thereof not to exceed a fine of $50 or imprisonment for thirty days. . . . They shall have the right to regulate the charge for the carriage of persons, baggage and freight by omnibus or other vehicle, and to issue license for omnibuses, hacks, drays or (309) other vehicles used for the transportation of persons or things for hire. They may also provide for public schools and public-school facilities by purchasing land and erecting buildings thereon and equipping the same within the corporate limits of the city or within one-half mile thereof. They may also construct or contract for the construction of a system of sewerage for the city, and protect and regulate the same by adequate ordinance; and if it shall be necessary, in obtaining proper outlets for the said system, to extend the same beyond the corporate limits of the city, then in such case the board of aldermen shall have the power to so extend it, and, both within and without the corporate limits, to condemn land for the purposes of right of way or other requirements of the system; the proceedings for such condemnation to be the same as those prescribed in chapter 49, section 6, of the Private Laws 1862-63, or in the manner prescribed in chapter 49, Volume I of The Code."

In these provisions of the charter, and in sections 3800 to 3805, both inclusive, of The Code, will be found enumerated all of the powers granted to the city by general or special laws.

We do not think that the general power to pass ordinances can be held to carry with it by implication any such grant of authority as that to expend the public money for, and conduct under the auspices of the city officers, such a display as that described by the witnesses. We are aware that such authority has been assumed by cities and towns in many of the states, but where the exercise of it has been drawn in question in the courts it has been sustained only when some statute expressly conferred the power to make the appropriation for that particular purpose. As we understand the authorities cited, the Supreme Court of Massachusetts has given its sanction to the validity of (310) expenditures for such purposes only where some express provision of law was shown to warrant it. In one of the cases cited from that state (Tindley v. Salem, 137 Mass. 171) the Court held that, even where a person was injured by the negligent use of fireworks by the servants of a city that had ordered the display for the gratuitous amusement of the people, under the authority of a statute, the city was not liable to answer in damages. In an earlier case it had been held that a city council must act strictly in pursuance of statutory power to make such displays to subject it to liability for injuries due to the negligence of its servants in the management of it. Merriam v. Lourevel, 98 Mass. 219. Where no statutory authority is shown for a wrongful act, done under the direction of a municipality, the Supreme Court of Massachusetts lays down the general rule as to its liability substantially as we have stated it.Cavanaugh v. Boston, 139 Mass. 426; Clafflin v. Hopkinson, 4 Gray, 502. If there is no authority conferred upon the mayor and aldermen by the statute mentioned, and we can discover none, after diligent search and examination, it is immaterial whether the persons in immediate control of the fireworks were servants, acting under the direction of the committee appointed by a resolution passed by the mayor and commissioners, and stood in the relation of agents to the city, or whether they were independent contractors. If the authorities of the city acted ultra vires in ordering the display, the question whether they employed expert pyrotechnists and acted upon their advice after securing their services, is equally as irrelevant. If, therefore, it were conceded that the chairman of the committee, appointed by the city for the purpose, supervised and directed the negligent management of the fireworks, and at such a place as it was evidence of a want of care to select, we think it was the duty of the court, (311) nevertheless, to tell the jury that the mayor and aldermen were not authorized by law to make an appropriation for and direct the management of a display of fireworks, and that the city was not liable to respond in damages for the wrongful or negligent conduct of a servant acting under instructions given by the city, but without authority of law. For the reasons given, we think that the court should have instructed the jury that in no aspect of the evidence was the defendant corporation liable for the acts of its servants in the management of the fireworks. Whether the rulings of the court upon the admissibility of testimony were abstractly erroneous or not, is not material, since, whether excluded or admitted, it was manifest that the plaintiff was not in any view of the evidence entitled to recover. There was no error of which the plaintiff can justly complain, and the judgment must be

Affirmed.

Cited: Willis v. New Bern, 118 N.C. 137.