Black v. City of Columbia

• Decision Date: 29 June 1883
• Citation: 19 S.C. 412
• Parties: BLACK v. CITY OF COLUMBIA.
• Court: South Carolina Supreme Court

19 S.C. 412

BLACK

v.CITY OF COLUMBIA.

Supreme Court of South Carolina.

Jun. 29th, 1883.

1. The word “understanding” falls short of alleging a distinct and express contract between the parties.

2. The plaintiff brought action for damages against a municipal corporation, based upon the destruction of his house by fire, resulting from an inadequate supply of water, to a sufficient supply of which he claimed to be entitled by reason of a water tax assessed upon such property by the city and paid by him. Held, on demurrer, that the action was for a tort, and, therefore, as against a municipal corporation, could not be sustained.

3. A contract made by the officers of a municipal corporation to insure to a taxpayer an adequate supply of water to extinguish fires, would not be binding upon the corporation unless the officers had the right to make such a contract. The officers of the city of Columbia have no such right.

4. An action cannot be maintained in this State against a municipal corporation for the non-performance of a public duty, there being no statute authorizing it. The functions of municipal corporations considered.

5. Power to supply the city with water having been given by statute to a municipal corporation, a duty was thereby imposed which required the exercise of judgment and discretion, and was not, therefore, purely ministerial.

6. White v. City Council of Charleston, 2 Hill 571, and Coleman v. Chester, 14 S. C. 286, recognized and followed.

Before WITHERSPOON, J., Richland, July, 1882.

This was an action by Joseph R. Black, as trustee for himself and others, against the city of Columbia. The opinion states the case. The order of the Circuit judge, omitting its statement of the pleadings, was as follows:

The two causes of action will be considered separately and in the inverse order in which they are laid in the complaint. I regard the second cause of action ex delicto in its nature, as the plaintiff claims damages by reason of the non-performance of a duty devolved upon defendant under the law. No statute is pleaded giving the right to maintain an action for tort against defendant, nor was any such statute referred to upon the hearing. Whilst the rule is different in regard to private corporations, it seems to be well settled that such an action will not lie against a municipal corporation, like a city or town, created for the public good, unless authorized by statute. See Coleman v. Chester, 14 S. C. 286, affirming White v. City of Charleston. The defendant's demurrer to plaintiff's second cause of action must, therefore, be sustained.

I regard the first cause of action in the complaint as uniting two causes of action, damages being claimed as well for defendant's breach of contract as for breach of duty in not keeping the water pipes in order and furnishing plaintiff with a proper supply of water, which resulted in the destruction of plaintiff's property by fire. Plaintiff might have waived the tort and relied upon the contract, or vice versa. If plaintiff wished to rely upon both the tort and the contract he should have set up each as a separate cause of action. He has not done so. Defendant, before demurrer, by motion, could have required plaintiff to separate these two causes of action, or at least have required plaintiff to elect between them. If either of the causes of action so united (in the first cause of action) can be maintained, the demurrer as to such cause of action must be overruled. In Coleman v. Chester, supra, it is held that a municipal corporation may make contracts and be bound by them without statutory authority.

It is true that this cause of action, whilst in its nature ex contractu, is not as formally or definitely pleaded as it should be, yet I am not prepared to hold that it is defective in substance; on the contrary, it substantially appears on the face of the complaint that defendant agreed with plaintiff, in consideration of the payment of the special water tax, to furnish water pipes in order and a sufficient supply of water to protect plaintiff's property from fire; that defendant failed to comply with this undertaking, by reason of which failure plaintiff's property was destroyed by fire, for which plaintiff claims damages. The facts stated cannot be disregarded because plaintiff also rests his demand for damages upon defendant's breach of duty. The informality in the statement of the cause of action for breach of contract must also be disregarded, if the facts are sufficiently presented as a cause of action. Hammond v. R. R. Co., 15 S. C. 10.

It is therefore ordered and adjudged that defendant's demurrer to plaintiff's second cause of action be sustained, and that said demurrer to first cause of action for damages for breach of contract be overruled, but with leave to defendant to answer over within thirty days from service of notice of the filing of this decree, without prejudice to any right of defendant to require the first cause of action to be made more definite and certain upon the matter of contract therein relied upon. Upon defendant's failure to answer within the time herein directed, the plaintiff may have his damages assessed at the next or some subsequent term of court, as in case of default.

Mr. J. T. Sloan, Jr., for defendant, appellant, cited 19 Ohio St. 19;29 Ind. 187;12 Ohio St. 375; 69 Pa. St. 420; 17 B. Mon. 722;2 Hill 571;3 Pet. 409;14 S. C. 286; 1 Greenl. Evid., § 256.

Messrs. Bacon & Moore, contra, cited 14 S. C. 286;Dill. Mun. Corp., §§ 373, 374, 383-5, 750, 774-8, 957, 1048, 1027, 1021, 789, and the authorities referred to in the notes; Story Ag., § 52; 16 Cal. 255;24 Ill. 105; 2 N. & McC. 537; 1 Spears 31; Cooley Tax. 416, 427; 43 Ind. 574;91 U. S. 551;102 Mass. 489; 38 Geo. 334; 2 Den. 433; 11 H. L. Cas. 686; 11 R. I. 141; 2 Hurlst. & N. 204; 22 Pa. St. 54; 124 Mass. 564;126 Id. 324;73 N. Y. 365.

The opinion of the court was delivered by

MR. JUSTICE MCGOWAN.

This was an action against the city of Columbia to recover $2,500 damages, the value of a dwelling-house and outbuildings destroyed by fire on February 22d, 1882, by reason, as alleged, of the failure on the part of the defendant corporation to keep its water pipes, hydrants and fixtures in repair, so as to furnish a sufficient supply of water to enable the engines to extinguish fires. The fire did not originate on the plaintiff's premises, but in a neighboring building, and, it was alleged, could have been extinguished before it reached and consumed the plaintiff's house, had there been a sufficient supply of water in the pipes, and that the want of such supply was caused by the negligence of the corporation.

The complaint contained two causes of action. The first, among other things alleged: “That the defendant is a municipal corporation, and by virtue of several acts of the legislature, is clothed with a general power of taxation, and also with certain special powers of taxation within the corporate limits of the city. *** And also with the power of laying down all pipes, fixtures, fire plugs, hydrants, water works and cisterns, within the said corporate limits, with ample power at any and all times to make ordinances, rules and regulations necessary to the execution of their said powers. That by virtue of such powers and the said charter, and of the ordinances passed thereunder, the said defendant corporation did lay down or cause to be laid down in the streets leading to and upon plaintiff's premises, certain water pipes, and did place and cause to be placed in said streets certain hydrants connected with said pipes. *** That said defendant did assess upon plaintiff's said property an annual tax for the use of the said pipes, and of the water to be furnished thereby to the plaintiff by defendant for certain purposes,among others, in case of fire in or about the said premises and for the extinguishment thereof. That in consideration thereof, and with the understanding that the plaintiff was to be furnished with an ample supply of water by means of the said pipes and hydrants for the extinguishment of any fires that might occur as aforesaid, the said plaintiff did agree to pay and did pay to the said defendant the annual tax so assessed and imposed. *** That by reason of the premises and of the powers and duties imposed by said acts and by reason of the ordinances of the said defendant, and in consideration of the tax so paid, and in consideration of the said understanding that the pipes and hydrants aforesaid should be properly laid down and placed so as to furnish the said plaintiff with an adequate supply of water for necessary purposes, and for the extinguishment of fires as aforesaid, it became and was the duty of the defendant to lay down such water pipes, and to place such fire plugs and hydrants as would furnish a full and adequate supply of water for the purpose aforesaid, and at all times to keep in said pipes, fire plugs and hydrants, such adequate supply of water and to keep said pipes and hydrants in proper order. ***

“That the said city of Columbia, unmindful of its duty in the premises under the charter and ordinances aforesaid and its understanding with the plaintiff, and notwithstanding the taxation and assessment of the said sum of money and in utter disregard of the plaintiff's right, wholly failed and neglected to comply with its obligations or perform its duties and to keep said water pipes and hydrants in proper order, and to keep in the same a sufficient supply of water for the extinguishment of fires as aforesaid. *** That on or about February 22d, 1882, the house of one Carr, adjoining plaintiff's lot, took fire; that the alarm being given, the fire department and other persons repaired to the spot in sufficient force, with engines, &c., in ample time to extinguish the fire and prevent its extending to plaintiff's buildings; but, although strenuous efforts were made to draw water from the pipes and hydrants aforesaid, it was...