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ing the rigbt shall use ordinary care to avoid leje party constructing or maintaining the reservoir is to others. Hence the lisbility for damages in een beld liable, not at all events, but as he might be if he cage grows out of the violation of a duty of the la had negligently constructed a house which fell down, ing to the injured party, and not out of the dangers or invited another into a dangerous place.After recharacter of the act wbich caused the damages. To piewing English authorities upon this subject he says: law may probibit the act because it is dangere, e "A comparison of these cases seems to show the Eoout of this prohibition the duty is created. uper 123 glish rule to be as follows: Whoever gathers water violation of which the right of action for damin into a reservoir, where its escape would be injurious pends. It would be unjust and oppressive to tim to others, must at his peril make sure that the reser. of any one the payment of damages to another te

poir is suficient to retain the water which is gathered be bas violated no duty which he owed to be

into it. But, if thus sufficient in construction, the when he has done him no wrong. For this reace liability for the subsequent escape of the water be. legal duty is an essential element of negligence, o

comes a question of negligence. The proprietor is there can be no negligence where there is no dat, not liable if the water escapes because of the wrong.

A few examples will serve to explain what heb tul act of a third party, or from vis major, or from any waid. The old common law of England moder:

other cause consistent with the observance of due and duty of every man to keep his cattle within the las

reasonable care by him. Due care must, of course, of his own possessions. If he failed to keep thee

be a degree of care proportioned to the danger of in. be failed to discharge his duty, and was liable to i

jury from the escape. But it is not very clear that owner of the premises upon which they estrapeita

the English rule, as thus explained, differs from that damages done; and this liability did not depends

of this country." Cooley, Torts (20 Ed.), pp. 676, 680; any neglect of their owner in failing to keep theo ?

Fletcher v. Rylands, L. R. 1 Excb. 265, L. R. 3 H. L. Here he was required to keep them up, because :

330; Nichols v. Marsland, L. R. 10 Exch. 255, 1 Thomp. their propensities to do mischief when rundt i

Neg. p. 88; Box v. Jubb, 1 Thomp. Neg. p. 90; Thomp. large, in order to protect others. For tbe same 99

Elect. $$ 61-67. mon the owner of any other domestic animal whe

"One who erects on his own premises a steam known by him to be vicious and accustomed 12 #1

boiler, baving in it no defect known to him, or which hurt is required to keep him secure, and, ini?

be mlebt have discovered by the exercise of ordinary 11-charge this duty, is responsible for danse (2

care and skill-that is to say, by the application of while be is at large, without regard to the ded: 22

known tests—and who operates it with care and skill, of the owner.

is not answerable to an adjacent proprietor for dam. "It is said in an early case," says Judge casting

iges caused by its explosion.” So a corporation oper. that where one bas tiltby deposits on his preslek

ating a railroad by the dangerous agency of steam is he whose dirt it is must keep it that it may noi !"

not responsible for injuries caused thereby, unless

they be the result of negligence of the owner or its pass. Therefore, it tiltby matter from 3 pritsi

agents. In both these cases the owner is not denied other place of deposit percolates through the si

the right to use his property, and is limited only in the adjacent premises, or breaks through into t

the manner in which it is used, although to do so was neighbor's cellar, or tinds its way into his well, the

dangerous to others. a nuisance. Nor where this is the natural reet:

In Railway Co. v. Hopkins, 54 Ark. 209, 15 S. W. the deposit is the question of liability one de pei.com

Rep. 610, the court in effect held that one has a right pn degrees of care to prevent it. Says Foster, i

to maintain a heavy sign overhanging a sidewalk in a To suffer filthy water from a vault to percolae

much frequented part of a city, provided he use ordiHilter through the soil into the land of a contigi.

bars care in keeping it securely fastened. The court proprietor, to the injury of his well or cellar, win

said: "The defendant was under a duty to the pub.
lie to exercise common prudence to place and keep
its sigo in such position as not to endanger the safety
of pedestrians in the street.
In Railway v. Copery, 33 S. W. Rep. 426, this court
said: "Electric companies are bound to use ‘reason-
able care in the construction and maintenance of their
lines and apparatus—that is, such care as a reasonable
mat would use under the circumstances--and will be
responsible for any conduct falling short of this
standard.' This care varies with the danger which
Fill be incurred by negligence. In cases where the
wires carry a strong and dangerous current of eleco
tricity

, and the result of negligence might be expos.
ure to death or most serious accidents, the highest
degree of care is required. This is especially true of
electric railway wires suspended over the streets of

populous cities or towns. Here the danger is great, and jater under all contingencies which can leaves

the care exercised must be commensurate with it. But

fais duty does not make them ipsurers against acci. with due care. For any negligence, either is at

dents, for they are not responsible for accidents which ruction or in subsequent attention, from which

a reasonable man, in the exercise of the greatest pru. Ary results, parties maintaining such reservoir DA

dence, would not under the circumstances have g from the tiooding of lands by reservoir, obica.si

and towns of this State, provided they do not obstruct the same. This right belongs to that class in the ex. ercise of wbich due care and skill is enjoined. In the exercise of it, it was the duty of appellant to use such skill and care in selecting or constructing its piers and poles, and in suspending and fastening its wires and cleats upon the same, and in making, maintaining, and keeping them (the poles, piers, wires, cleats, and fastenings) secure against such wind, weather, and acts of persons or things as might reasonably be anticipated, and in preventing them from becoming dan. gerous to pedestrians or other persons using the streets, as a prudent and reasonable man, mindful of his duties and desirous of discharging them, would use under the circumstances, wbich care and skill should be measured by the rule laid down in the case last cited. For a failure to discharge this duty it is responsible to such parties as may be injured by its non-performance. Ward v. Telegraph Co., 71 N. Y. 81. Its liability for damages is dependent only on such condition.

According to the foregoing test, are the iastructions objected to by appellant correct?

The second instruction makes the dangerous character of the wires and their fastenings the sole test of liability. The same defect exists in the instructions numbered 4, 6, and 8. In the sixth the court told the jury that, if they “believed from the evidence that the defendant fastened its wires upon a pier over the street in such a manner as to loosen the brick, or cause them to be loosened by the natural action of the wind or rain, and that the brick were so loosened and liable to fall upon any one in the street below, and that said street was a public highway, and that such fastenings rendered travel on the highway less secure or more hazardous, then such fastenings would be neg. ligence on the part of defendant. And if you further find that plaintiff was injured by a brick or timber falling from said pier, caused by the manner of fast. ening the same by defendant, you must find for the plaintiff, even though you may find that persons upon the roof of the building, engaged in extinguishing a fire or protecting the building from fire, may have contributed in precipitating the brick to the pave. ment below, provided you further find that such ac. tions of persons on said roof might reasonably have been anticipated." The fourth and eigbth, taken as one instruction, are substantially a repetition of the sixth. According to all of them it was the duty of the jury to return a verdict without regard to the care, skill, and diligence exercised by appellant in suspending and fastening its wires, and in maintain. ing its structures or appliance in a safe condition. The instructions given at the instance of appellant upon the same subject do not explain, but contradict, them, and the error in the instruction objected to remained uncorrected.

t is done habitually and within the knowledge of the party who maintains the vault, whether it putrina above ground or below, is of itself an actionable at

oder such circumstances the reasonable precauti which the law requires is effectus!ly to excluie ?? filth from the neighbor's land, and not to do so is ft elf negligence.' Onls sudden and unavoidable xei lept which could not have been foreseen by dness? Jould be an excuse in such a case." Cooles, 1c3 1. 673. But the rule is different as to reservoirs in reb'1

collected for useful and ornamentals oses. As to them Judge Cooley says: "It is lisad

gather water on one's premises for useful and 475 pental purposes, subject to the obligation to com Fruct reservoirs with sufficient strength to retain '

ater

Je anticipated, and afterwards to preserve and 2017

DAMAGES-SALE OF OPIUM TO WIFE-RIGHT OF ACTION BY HUSBAND). — The Supreme Court of North Carolina decide, in Holleman v. Harward, 25 S. E. Rep. 972, that an action for damages will lie at the suit of a husband against a druggist who, in violation of the express orders of the husband, has sold laudanum and similar preparations to the wife, in consequence of which she has become a confirmed subject of the opium habit, result

responsible. We say nothing now of injuries 2

In this state any person or corporation organized ising the water must and do have that edett,

for the purpose may construct, operate, and maintain nine our attention to the case of reservoin mid

telephone lines along and over the streets of the cities use injuries to the lower proprietors only as they eak away. The American decisions seem to Je liability on the ground of negligent, Ei'u

guarded agalpst."

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ing in the loss of her services and companionship. The following is from the opinion:

The question, then, is, can the plaintiff, upon the facts set out in the complaint, maintain an action? The action is a novel one. With the exception of the case of Hoard v. Peck, 56 Barb. 202, which, in its most important aspects, resembles the one before us, we have been able to find no precedent in the English common law courts or in the courts of any of our States. It does not follow, however, that because the case is new the action cannot be maintained. If a principle upon which to base an action exists, it can be no good objection that the case is a new one. It is contended for the defendants, though, that there is no principle of the common law upon which this action can be sustained, and that our own statutory law gives no such remedy as the plaintiff seeks in this action for the wrong done to him by the defendants, and tbat the novelty of the action, together with the silence of the elementary books on the subject matter of the complaint, while not conclusive, furnishes strong countenance to their contention. It is claimed for the defendants that while, in the abstract, such facts as are stated in the complaint would make the parties charged guilty of a great moral wrong, there would be no legal liability incurred therefor. It was argued for the defendants that there was no legal obligation resting upon themselves not to sell the drug, as is alleged, to the plaintiff's wife, or upon the wife not to use it; that many of the ancient restrictions upon the rights of married women had been repealed by recent legislation, or modified by a more liberal judicial construction; that a married woman was ordinarily free to go where she would, and that the hus. band could not arbitrarily deprive her pf her liberty, nor use violence against her under any circumstances, except in self-defense, and that, if he could not restrain her locomotion and her will, he could not preyent her from buying the drug and using it; that the wife's duty to honor and obey her husband, to give to their children motherly care, to render all proper service in the household, and to give him her compan. ionship and love, was a moral duty, but that they could not be enforced by any power of the law, if the wife refused to discharge them. But, notwithstanding the claim of the plaintiff, we think this action rests upon a principle-a principle not new, but one sound and consistent. The principle is this; “Whoever does an injury to another is liable in damages to the extent of that injury. It matters not whether the injury is to the property or the rights, or the reputation of an. other." Story, J., in Dexter v. Spear, 4 Mason, 115, Fed. Cas. No. 3,867. And also in the third book of Blackstone's Commentaries (chapter 8, p. 123) it is written: “Wherever the common law gives a right, or prohibits an injury, it also gives a remedy by action.A married woman still owes to her husband, notwithstanding her greatly improved legal status, the duty of companionship, and of rendering all such services in his home as her relations of wife and mother require of her. The husband, as a matter of law, is entitled to her time, her wages, her earnings, and the product of her labor, skill, and industry. He may contract to furnish her seryices to others, and may sue for them, as for their loss, in his own name. And it seems to be a most reasonable proposition of law that whoever will. fully joins with a married woman in doing an act which deprives her husband of her services and of her companionship is liable to the husband in damages for his conduct. And the defendants owed the

plaintiff the legal duty pot to sell to his wife opium in the form of large quantities of laudanum as a bev. erage, knowing that she was, by using them, destroy. ing her mind and body, and thereby causing loss to the husband. The defendants and the wife joined in doing acts injurious to the rights of the husband. From the facts stated in the complaint, the defend. ants were just as responsible as if they had forced her to take the drug, for they had their part in forming the habit ia her, and continued the sale of it to her after she had no power to control herself and resist the thirst; and that, too, after the repeated warnings and protests of the husband. There is no difference between the principle involved in this action and the principle upon which a husband can recover from a third person damages for assault and battery upon his wife. That assaults and batteries are made criminal offenses makes no difference, the foundation of the husband's suit being, not for the public offense, but for damages,-compensation for the injury which he has sustained on account of the loss of his wife's services. The sale of the laudanum by the defend. ants to the plaintiff's wife, under the circumstances set out in the complaint, was willful and unlawful, and the husband's injury is just as great as if his wife had been disabled from a battery committed on her, although the unlawful act is not indictable.

The defendant's counsel also insisted that the selling of laudanum is a lawful business, that it is on the same footing as the sale of spirituous liquors unre. strained by the statute. It is true that there is no statutory provision in North Carolina prohibiting the sale of laudanum as a beverage or as a medicine, but it does not therefore follow that a sale of it under all circumstances is lawful. As is well said in Hoard v. Peck, supra: “Its lawfulness or unlawfulness de. pends upon the circumstances of the sale, and the uses and purposes to which it is to be applied.” It is lawful to sell laudanum as a medicine. It is also law. ful to sell spirituous liquors as a beverage upon the dealer's complying with the license laws, except in the cases prohibited by statute. Certainly no fair inference can be drawn from this that damages may not be recovered from one who knowingly and willfully sells or gives laudanum or intoxicating liquors to a wife, in such quantities as to be attended by such consequences to the wife as are set out in the coniplaint in this action. We have in our State (Code, $ 1077) a statute which makes it unlawful to sell liquor in any quantity to a minor (except he is a married man), and section 1078 gives to the person injured damages therefor. But suppose we had no statute on the subject of liquor selling to minors, would the law permit with impunity a dealer or other person to sell liquor to a man's child, without his knowledge or consent, in such quantities as to produce habitual in. toxication, or to render him unfit for employment? But laudanum is well known to be a poisonous drug. As a beverage, it cannot be drunk without injury to the body, affecting the health of the physical and moral powers, and this is known to most persons of ordinary intelligence and to all druggists. The defendants knew, taking the complaint in this appeal to be true, that the plaintiff's wife did not buy the laudanum for medicine. They knew that she was buying it as a beverage; that she was violating ber duty to her husband in destroying her health, and thereby rendering herself unfit as a companion for bim, and to render proper service in the household. They assisted her, and encouraged her, for gain, with the means of doing all this in face of his frequent protests and warnings. The habit she had formed

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atiff the legal duty pot to sell to his wife oping :

form of large quantities of laudaonn is a les up, knowing that she was, by using them, destret. her mind and body, and thereby causing los to

husband. The defendants and the wife joined in 14 acts injurious to the rights of the bustad !n the facts stated in the complaint, the deleni - were just as responsible as if they bal forced

at the drug, for they had their part in fornitz babit in ber, and continued the sale of it to robe had no power to control hersell and Test thirst; and that, too, after the repeated witam

protests of the husband. Tbere is no differest ween the principle involved in this action and the priple upon which a husband can recover troes f person damages for assault and battery lat wife. That assaults and batteries are made eris

offenses makes no difference, the fonodatico si husband's suit being, not for the public diete

for damages,-compensation for the injury and bas sustained on account of the loss of bis riki ices. The sale of the laudanum by the defen

to the plaintiff's wife, under the circunstaM out in the complaint, was willful and uploat the husband's injury is just as great as it his de

been disabled from a battery committed on bus pough the unlawful act is not iudictable. he defendant's counsel also insisted that these

of laudanum is a lawful business, that it is oe te e footing as the sale of spirituous liquor ined by the statute. It is true that there to utory provision in North Carolina prohibiting to

of laudanum as a beverage or as a medicine, ba be not therefore follow that a sale of it under di umstances is lawful. As is well said in Board T. k, supra: "Its lawfulness or uplawlules de e upon the circumstances of the sale, and the

and purposes to which it is to be applied." 118 fuì to sell laudanum as a medicine. It is ako list

to sell spirituous liquors as a beverage upid <3 ler's complying with the license laws, eretta cases prohibited by statute. Certainly no faire nce can be drawn from this that damage: mars ecovered from one who knowingly and william

or gives laudanum or intoxicating liquors if á 1, in such quantities as to be attended by sa

was the direct result of the use of the drug, which

tled that the violation by a railroad con:pany the defendants sold to her in such large quantities,

of an ordinance limiting the rate of speed of and they knew it, and persisted in it, although re

a train is negligence per se.

Weber v. Railpeatedly warned and entreated by the husband pot to do so. His honor erred in sustaining the demurrer. road, 100 Mo. 194, and cases cited. No reaIt ought to have been overruled.

son can be perceived for a distinction in favor of one driving a horse in violation of law, in

stead of an engine. Both acts are alike proTHE EFFECT OF MUNICIPAL ORDI- hibited."? It will be observed that by this NANCES UPON CIVIL LIABILITY BE- decision the Missouri court makes the ordiTWEEN PRIVATE PARTIES.

nance duty the standard of care, for the quasi

public corporation and the individual alike; In a former article upon this subject the thus overruling the doctrine of Fath v. Tower writer said while it is difficult to reconcile

Grove & Lafayette Ry. Co.,' that the city orthe cases, or to deduce from them a general dinance there pleaded was competent to bind doctrine in the premises, it is safe to say that

the defendant corporation only because it had where the ordinance is one authorized by the

accepted a franchise from the City of St. power vested in the municipal corporation Louis, and was therefore subject to the city by the legislature, and where the scope of ordinances and liable civilly for their violathe ordinance includes a general protection tion. The ordinance of the City of St. Louis of the community from acts of omission or

provides as follows: “Any person who shall commission which may become, or are liable in this city ride or drive any animals in any to become singularized, to the injury of an highway, thoroughfare or public place, individual

, its violation is actionable to every quicker than or beyond a moderate gait, or person injured by it. The enactment of an

shall not slacken the pace of such animal or ordinance possessing the qualifications named

animals in approaching any crosswalk upon fixes the measure of proper care, a departure trom which, resulting in private injury, ren

which any person may be in the act of cross

ing ders the offender liable.” Since the forego

shall be deemed guilty of a

misdemeanor.” In the late case of O'Hara ing was written, several cases have emphasized the rule as stated, and define more

v. The Globe Iron & Foundry Co., where accurately than any preceding cases the ex

the plaintiff while standing upon a crosstent to which ordinance regulations affect

walk was struck in the chest by a bundle of private liability. In an action by a widow

gas pipe which protruded beyond the box of to recover damages for the death of her hus

the defendant's wagon, the St. Louis Court band, the Supreme Court of Missouri says

of Appeals, by Rombauer, P.J., says:4 "The per McFarlane, J., "on the trial, defendant of

evidence establishes the fact that the driver tered to read in evidence an ordinance of the

was guilty of negligence under the ordinance city, which provided that no person within

in failing to slacken the speed of the horse

As to the rate the city should drive any animal in any street

in approaching the crossing. faster than a moderate gait, or should drive

of speed at which he was driving any such animal in such a manner as to come

the evidence is conflicting.” The class of into collision with or strike any other object

cases to which the doctrine applies is infinite or person. The court refused to permit the

in range.

Thus it was recently held that ordinance to be read, and of its action the

where the city ordinance prohibited leaving defendant complains, and we think justly. of negligence to permit a horse to stand in

horses in the street unbitched, it was an act There was a plea of contributory negligence. The ordinance was offered to support that employer was liable to a person sustaining

the street unbitched, for which the driver's the deceased faster than & moderate gait requires the owner of materials forming an when the collision occurred, the act would have been negligent; and, if it contributed

obstruction in a street to prepare and place

lights thereon with such care and diligence ery. The rule in this State is well set

2 Weller v. C. M. & St. P. Ry. Co., 120 Mo. 635.654.
8 105 Mo. 537-549,
4 Decided March 24th, 1896. Unreported as yet.
B Jones v, Belt, 32 Atl. Rep. 723.

fequences to the wife as are set out in the case Int in this action. We have in our state content 1) a statute which makes it unlawful to sell line finy quantity to a minor (except he is a mattis P), and section 1078 gives to the person injera Jages therefor. But suppose we had do statute 4 ubject of liquor selling to minors, would to uit with impunity a dealer or other person ta ei or to a man's child, without his knowledge !! fent, in such quantities as to produce baliteet cation, or to render him untit for employezze laudanum is well known to be a poisonous dit

beverage, it cannot be drunk without injury body, affecting the health of the physical de al powers, and this is known to most person: It nary intelligence and to all druggists. The to lants knew, taking the complaint in this appës."

true, that the plaintiff's wife did not bar

lanum for medicine. They knew that of

ing it as a beverage; that she was fioletine 19

to her husband in destroying her besti,

directly to the injury, would bar a recov

eby rendering herself untit as a companies *

1 59 Cent. L. J. 165.

and to render proper service in the bottom y assisted her, and encouraged her, for gait. I means of doing all this in face of his tree Jests and warnings. The habit she had

10

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as reasonably to secure their burning till day. reasoning of the old cases. The learned light, such owner is liable to third persons court then reviews Behan v. The People, lo 'for injuries incurred through negligence in The People v. Stevens, and Rex v. Robinthe performance of this duty, either by him- son, quoting Lord Mansfield to this effect: self or by a contractor in his employ, even if “The rule is certain that where a statute crethe lights were extinguished by an unknown ates a new offense, by prohibiting and making cause. 6

unlawful anything which was lawful before, In Tobey v. B. C. R. & N. Ry. Co., and appoints a specific remedy against such the Supreme Court of Iowa holds that "kick- new offense (not antecedently unlawful), by a ing" cars within city limits at a rate of particular sanction and particular mode of speed prohibited by ordinance is negligence proceeding, that particular method of proper se (following Correll V. B. C. R. & ceeding must be pursued, and no other." M. R. R. Co., 38 Iowa, 120). In each From this foundation, the New York court instance the Iowa court has clearly and ex- concludes: "The principle is a very ancient plicitly held to the rule, and has refused to one, and has never been departed from. It recognize any distinction between a statutory is a most national interpretation of the lawand an ordinance provision as establishing making power.

making power. On passing the act or the the standard of due care, a departure from ordinance in a case where the thing prohibited which is negligence, rendering the defendant was lawful before, the law makers say to each liable in the absence of proof of contributory member of the community, if you do this negligence. The case of Correll v. B. C. R. thing, and as often as you do it, you shall & M. R. R. Co.,expressly criticises the pay such a penalty. That is the whole of it. doctrine of Brown v. Buffalo & State The simple act of the defendant, of running Line R. R.,9 which is one of the clearest

the train at a greater rate of speed than six expositions of the old doctrine that a city

miles an hour, unconnected with any

actual ordinance, and even a penal statute could negligence, involved the defendant in no not affect the civil liability of private par- other consequences than the payment of the ties violating it. It is of interest to note penalty.” This opinion was vigorously critithe language of the New York Court of cised in Shearman & Redfield on Negligence Appeals in the latter case. The proof showed, (4th Ed.), Sec. 467, note 3, and was overwithout contradiction, that the ordinance of

ruled in Beisegel v. N. Y. C. R. R. Co., the city of Buffalo prohibited the moving of where the court by Grover, J., says:

"Is locomotives or cars on any portion of the de- it not clear the ordinance made the running fendant's railway within the city at a rate of of trains at a speed prohibited by it unspeed exceeding six miles an hour, under a lawful? Can it be true that in a legal penalty of one hundred and fifty dollars, and

sense an act prohibited by law and a specified that plaintiff's intestate was struck and in

punishment and penalty prescribed for its stantly killed by one of defendant’s cars run- commission becomes lawful by suffering the ning at a speed of more than six miles an

punishment or paying the penalty ? Certainly hour. The court by Welles, J., says: “The not.” It is the latter reasoning which is bequestion presented is, whether the legislature ing pretty uniformly adopted by the courts intended to authorize the common council to of all the States, and its firm establishment change, and whether the latter intended to in all jurisdictions is a consummation dechange the common law liability of parties in voutly to be wished. cases like the present or whether the penalty

St. Louis.

JAMES L. HOPKINS. annexed to a violation of the ordinance was intended as the only punishment connected

10 17 N. Y. 516. with such violation.” The reader will note 11 13 Wend. 341.

12 2 Burr. 800. that this statement very plainly presents the

18 14 Abb. Pr. (N. S.) 29. issue, and comprehends the entire ground of

18

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6 Wilson y. White, 71 Ga. 506; cited Beach, Con-
tributory Negligence (2d Ed.), Sec. 250.

7 62 N. W. Rep. 761.
& Supra.
9 22 N. Y. 191.

usoning of the old cases. The learned urt then reviews Beban v. The People." he People v. Stevens," and Res v. Robis1." quoting Lord Mansfield to this effet The rule is certain that where a statute die es a new offense, by prohibiting and making lawful anything which was lawful before, d appoints a specific remedy against such w offense (not antecedently unlawtul)

, by s rticular sanction and particular mode of þceeding, that particular method of pro pding must be pursued, and no other." Jom this foundation, the New York court Includes: “The principle is a very ancient Je, and has never been departed from. It a most national interpretation of the liv king power. On passing the act or the linance in a case where the thing prohibited s lawful before, the law makers say to each mber of the community, if you do this ng, and as often as you do it, you sks y such a penalty. That is the whole of it e simple act of the defendant, of running

train at a greater rate of speed than s les an hour, unconnected with any actus) gligence, involved the defendant in na her consequences than the payment nalty.” This opinion was vigorously erita ed in Shearman & Redfield on Negligente 1 Ed.), Sec. 467, note 3, and was ora ed in Beisegel v. N. Y. C. R. R. Co. ere the court by Grover, J., not clear the ordinance made the running trains at a speed prohibited by it e ful? Can it be true that in a legal

MUNICIPAL CORPORATIONS – OFFERING RE.

apprehension, or conviction of offenders against WARD FOR CRIMINALS.

the criminal laws of the State. Nor does any

statute of the State confer upon municipal corpoCITY OF WINCHESTER v. REDMOND.

rations such authority. Supreme Court of Appeals of Virginia, Nov. 19, 1896. But it is claimed that the exercise of such 1. In the absence of express authority conferred by power is authorized by section 9 of the charter of its charter or by general law, a municipal corporation the city, which, after conferring upon the counhas no power to offer and pay a reward for the ap- cil a number of particular powers, authorizes it prebension and conviction of persons violating the "to do all such things as it may deem proper for criminal laws of the State.

the prosperity, quiet, und good order of the city.” 2. Authority to a council of a city to offer a reward

This language, though very broad, is yet not for the detection of criminals cannot be inferred from a "general welfare" clause of its charter, the matter

without its proper limitation. It is to be conbeing properly a subject of State, and not municipal

strued with reference to the object contemplated jurisdiction.

by the State in the grant of the charter, and the 3. The offer by a city council of a reward which it extent of the power it confers is to be measured bas no authority to pay is ultra vires, and creates no and limited by the purposes for which the corpoobligation enforceable against the city.

ration was created. A municipal corporation is a RIELY, J.: This case is before us upon a writ local and subordinate government, created by the of error to a judgment of the circuit court of sovereign authority of the State, primarily to Frederick county, rendered against the city of regulate and administer the local and internal Winchester, for the amount of a reward offered affairs of the city or town incorporated, in conby its common council for the apprehension and

tradistinction to those matters which are comconviction of incendiaries. The main and impor- mon to and concern the people at large of the tant question for our determination is :

Did State. And it is only in regard to the local and the council have the power, under the law, to internal affairs of the city or town that its counoffer the reward, and bind the city for its pay.

cil, unless expressly authorized, has the right to ment? A municipal corporation, as well as other

legislate. To this end, specific powers are usually corporations, is, in this country at least, the crea

given in express words; and when a general and ture of the legislative power of the State, and its

indefinite power, as the one under consideration, charter is its constitution and fundamental law.

is superadded, it is to be confined in its exercise Upon the provisions of its charter and such other

to the ordinary objects and purposes of municistatutes of the State as are applicable to cities

pal corporations, and not to be construed to comand towus depend the powers that are conferred

prehend a matter which is common to the State, upon the corporation, and that may be exercised by its council, wbich is its legislative body. It

and affects its people at large. The line of dis

tinction may not always be perfectly clear. Cases possesses no powers except those conferred upon

doubtless do sometimes arise when it is not readit, expressly or by fair implication, by the law which created it and other statutes applicable to

ily perceived whether the power exercised by the

council of a city or town is implied in the powers it , and such other powers as are essential to the attainment and maintenance of its declared ob

expressly given, or is necessary to the accom. jects and purposes. It can do no act, nor make

plishment of the objects and purposes of the corang contract, nor incur any liability, that is not

poration, or whether it is wholly a State power, thus authorized. These principles lie at the

and only to be exercised by its legislature; but, foundation of the law of municipal corporations,

as respects the particular case before us, there is and are the guides in the construction and adju

no such difficulty. Here the line of distinction is dication of their powers. "It is a general and un

clearly and broadly marked. disputed proposition of law," says a distinguished

Crime is an offense against the State, and not jurist and eminent commentator in his excellent

against the city, town, or county in which it may be committed, as distinguished from the rest of the State. The offense is against the sovereign authority, and not against the individual or particular community. All the people of the State are concerned in the punishment and suppression of crime. And the State, whose prerogative it is to punish crime, has made adequate provision for the vindication of the public justice. When a crime has been committed, it is her law, and not that of the corporation, that is broken.

She has prescribed penalties for the various speCorp. (3d Ed.) $ 89. The city of Winchester is a

cies of crime, and enacted laws for the arrest, municipal corporation chartered by the legisla

trial, and punishment of criminals. They are ture of the State. An inspection of its charter

averted by her officers, and tried by her judiciary discloses that no express power was given to the

under her laws.. The State constantly makes use corporation to offer a reward for the detection,

of officers of the corporation in the discharge of its governmental functions, and requires them to

says:

se an act prohibited by law and a specifel pishment and penalty prescribed for its pmission becomes lawful by suffering the hishment or paying the penalty? Certainly :.” It is the latter reasoning which is de

pretty uniformly adopted by the court fill the States, and its firm establishment all jurisdictions is a consummation de tly to be wished. St. Louis.

JAMES L. HOPRIS

treatise on this subject, “that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.” Dill. Mun.

17 N. Y. 516. 13 Wend. 341. 2 Burr, 800. 14 Abb. Pr. (N. S.) 29.

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