City of Georgetown v. Commonwealth

• Citation: 115 Ky. 382,73 S.W. 1011
• Parties: CITY OF GEORGETOWN v. COMMONWEALTH.
• Decision Date: 29 April 1903
• Court: Court of Appeals of Kentucky

73 S.W. 1011

115 Ky. 382

CITY OF GEORGETOWN v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 29, 1903

Appeal from Circuit Court, Scott County.

"To be officially reported."

The city of Georgetown was convicted of permitting a nuisance within its limits, and appeals. Reversed.

W. S Kelly, for appellant.

Clifton J. Pratt and M. R. Todd, for the Commonwealth.

NUNN J.

At the May term, 1902, of the Scott circuit court, an indictment was returned against appellant, a city of the fourth class, in the usual and proper form, charging, in substance, that it did unlawfully suffer and permit in an open gutter, drain and sewer between the gas plant and "Big Spring Branch," two points within the limits of the city, all sorts of filth, excrement, vegetable and animal matter refuse and waste from the gas plant, and the ordinary sewerage of the community in, through, and along the open gutter, drain, and sewer to flow therein, and to remain rotting and festering, and giving forth and emitting noxious and poisonous gases, charging and burdening the atmosphere with dangerous and offensive odors, and disturbing the comfort of all good people, etc. On the plea of not guilty the evidence showed, in substance, the following facts: That there was a natural drain running from the gas plant to "Big Spring Branch," the drain passing along through the city, and into this drain the waste from the gas plant was permitted to flow, likewise the filth from privies on private property along this drain, and especially during the dry seasons of the year, when water was not flowing in this drain, it became very obnoxious and offensive to the smell and was in fact a nuisance. The gas plant was not owned or operated by the city. It was shown by the record that the city council had passed ordinances making it an offense, and fixing the penalties therefor, for causing, maintaining, or permitting in the city limits noxious or unhealthy matter in such a drain or in any place within the city. The trial resulted in a verdict against the appellant for $480, and the court refusing to set aside the verdict and grant a new trial, the case is here on appeal.

If the corporation, the appellant, is liable to be indicted and fined for such an offense as proven in this case, then the judgment ought to stand. The only question to be determined is whether or not it is liable. As this is an important question to the state and all the cities and towns in the state, we have taken great pains to examine all the authorities touching the subject within our reach. This direct question, so far as we have been able to find, has never been before this court before; that is, as to whether or not a municipal corporation can be indicted and fined for its failure to cause the abatement of a nuisance, or cause the punishment of the individuals creating and suffering the same on their private property. There is no pretense that the city or its officials created or caused the nuisance, or that it exists on any property belonging to or under the control of the appellant, except the ordinary police control as the agent of the state. In the case of Dudley v. The City of Flemingsburg (Ky.) 72 S.W. 327, the court said "There are two general principles underlying the administration of government of municipal corporations. The one is that a municipal corporation, in the preservation of peace, maintenance of good order, and enforcement of the laws for the safety of the public, possesses governmental functions and represents the state. The other is where the municipal corporation exercises those powers and privileges conferred for private, local, or merely corporate purposes peculiarly for the benefit of the corporation. Under the former the city is not liable for malfeasance, misfeasance, or nonfeasance of its officers. Under the latter it is." This prosecution is based upon the theory that the city is liable to punishment for the failure of its officials to abate a nuisance and to prosecute the individuals responsible therefor. Nuisances are offenses at common law, and the persons creating or permitting them are liable to indictment wherever committed; and when the state grants to a city the power to abate or pass ordinances to punish persons guilty of such offenses this right is exercised only in aid of sovereignty in the enforcement of its laws for the comfort, safety, and health of the public. The city, in such a case, becomes a part of the sovereignty, and therefore is not liable to indictment. A municipal corporation is not liable for the acts of its officers in enforcing or the failure to enforce the criminal or penal laws of the commonwealth or the penal ordinances of the city. In Taylor v. City of Owensboro (Ky.) 32 S.W. 950, the court, in an action seeking to make the city liable for the malfeasance and misfeasance of its officers, said: "The municipal corporation in all these and the like cases represents the state or the public. The police officers are not the servants of the corporation. The principle of respondeat superior does not apply, and the corporation is not liable unless by virtue of a statute expressly creating the liability. The cases rest on the ground that municipalities represent the commonwealth, and municipal officers, while engaged in duties relating to public safety and in the maintenance of public order, are the servants of the commonwealth"-- and refers to Dillon on Municipal Corporations, §§ 974, 975; Pollock's Adm'r v. City of Louisville, 13 Bush, 221, 26 Am. Rep. 260; Jolly's Adm'x v. Hawesville, 89 Ky. 279, 12 S.W. 313; and Prather v. Lexington, 13 B. Mon. 559, 56 Am. Dec. 585. The case of State v. Town of Burlington, 36 Vt. 524, was where the city was indicted for suffering and permitting a nuisance wherein the slop and waste water from the premises of several individuals was conducted into a ditch, from which offensive and unwholesome odors arose, offensive to the inhabitants living on the street. The court, after discussing the liability of the city upon statutory questions, decided the case upon broader principles, and said: "But we are also of opinion that the removal or abatement of nuisances erected or created by private persons cannot be considered as a corporate duty imposed by law upon towns. *** This cannot be considered as creating a corporate duty on the town, unless we can assume that all and every duty which by general laws is devolved upon officers elected by the town is a corporate duty, and that the failure of every town officer to perform his official duty subjects the town to suit or indictment if the consequence is injurious either to any individual or to the community generally. But no such principle has ever been understood to prevail, except where the liability was created by statute. *** The general supervision of the business affairs and concerns of towns is given to selectmen, and in the performance of such duties they are the agent of the town, and they may bind the town by their acts, and the town be liable for their acts, in much the same manner and upon the same principles that obtain between ordinary principals and agents. But when the Legislature by general laws devolve certain duties relative to the general police upon selectmen, they do not become corporate duties and obligations of the town, any more than such duties required to be performed by constables, grand jurors, or justices of the peace. If there is any liability to individuals or to the public growing out of their failure to perform such duties, it is upon the officers, and not upon the town." Cities are liable for the malfeasance of their officials in matters peculiarly pertaining to their benefit and advantage, but not for their failure to enforce or for nonenforcement of the criminal and penal laws of the sovereignty. Upon this principle the town of Marion was made liable to McGraw. The town imprisoned him for the failure to pay a license fee, unconstitutionally imposed, for the peddling of spectacles in the town. The court, in substance, said that the license fee was for the sole benefit of the town, and McGraw had not committed any...