City of Orlando v. Pragg

• Citation: 12 So. 368,31 Fla. 111
• Parties: CITY OF ORLANDO v. PRAGG.
• Decision Date: 06 February 1893
• Court: United States State Supreme Court of Florida

12 So. 368

31 Fla. 111

CITY OF ORLANDO v. PRAGG.

Florida Supreme Court

February 6, 1893

Appeal from circuit court, Orange county; John D. Broome, Judge.

Tresspass on the case by John M. Pragg against the city of Orlando. There was judgment for plaintiff, and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A municipal corporation is not liable for tortious acts committed by its officers and agents, unless the acts complained of were committed in the exercise of some corporate power conferred upon it by law, or in the performance of some duty imposed upon it by law. Such a corporation is liable in damages for a lawful and authorized act of its agents, done in an unauthorized manner, but not for an unlawful or prohibited act.

2. Where the declaration in a suit in tort against a municipal corporation does not show upon its face that the acts complained of were such as to be wholly outside of all corporate powers or duties, or that, from their nature, they were impossible of commission by the corporation in the exercise of any corporate power conferred upon it by law, or in the performance of any duty imposed upon it by law, it is not subject to demurrer on the ground that the acts complained of were ultra vires.

3. If the act complained of be such that the corporation could not commit it under any circumstances in the exercise of any power or authority conferred upon it by law, then it is ultra vires, and the municipality cannot be held liable therefor but, if the act be not ultra vires in the sense that it is not within the power or authority of the corporation to act in reference to it under any circumstances, then it can be held liable therefor.

4. The power conferred in general terms on municipal corporations to prevent and abate nuisances cannot be taken to authorize the condemnation of that as a nuisance which, in its nature situation, or use, is not such in fact, And if the city acting under the general power, abate that as a nuisance that is not such in fact, it does so at its peril, and is liable for the damage done, if it turns out in proof that it has made a mistake.

5. Where the fact of nuisance is clear, the city is then under the obligation to exercise the power of abatement in a reasonable manner, so as to do the least injury to private rights, and if it exercises the power of abatement in an unreasonable, careless, or negligent manner, so as to produce unnecessary damage, it will be liable for the damage caused by such negligence.

6. Where the fact of nuisance is clear, and the owner is notified thereof, and given a reasonable opportunity to remove same, and he fails, and the city, acting under its general power, or as the agent of the county board of health who have the same powers of abatement, then abates the same in such manner as not to cause unnecessary damage to the owner, then the city is not liable for any damage resulting from such abatement.

COUNSEL W. H. Jewell, for appellant.

J. High Murphy, for appellee.

OPINION

TAYLOR J.

John M. Pragg, the appellee, sued the city of Orlando, the appellant, in trespass, the following being the declaration filed in the case: 'And now comes the plaintiff, John M. Pragg, by his attorneys, Mershon & Rogers and J. Hugh Murphy, and complains of the defendant, the city of Orlando, of a plea of trespass on the case, for that, whereas, on or about the 6th day of July, A. D. 1887, the plaintiff was engaged in the business of a dealer in natural curiosities, and had attached to his shop a museum for the exhibition of live and stuffed animals of various kinds for profit; and while so engaged in business, and on or about the day and date aforesaid, the said defendant, by and through its mayor, city council, servants, agents, and employes, entered in and upon the premises of the plaintiff, where said business hereinbefore mentioned was by the plaintiff being carried on, and situated on the west side of Orange avenue, between Pine and Church streets, in the said city of Orlando, and without just cause did then and there remove, destroy, and deprive the plaintiff of the ownership, sale, use, and benefit of the following described property, to wit: Two water turkeys in coop, two coons in cage, one dozen snakes (mixed) and two cages, two snipes and cage, one owl and cage, three turtles and cage, one lot chickens and cage, five alligators, one lot chicken and animal houses, one lot of shells, one fox, one lot of peafowls,--whereby the plaintiff sustained damages in the sum of six hundred and thirteen dollars, and whereby plaintiff was further injured in his business to his damage in the sum of two hundred dollars, wherefore plaintiff demands judgment for sixteen hundred dollars and costs of this action.'

To this declaration the defendant municipal corporation demurred upon the ground that a city is not liable for illegal acts of its agents, and for 'other causes appearing upon the face of the papers.' This demurrer being overruled, the case went to trial upon a plea of the general issue, and resulted in a verdict and judgment for the plaintiff in the sum of $300, and from this judgment an appeal is taken here.

The first error assigned is the order overruling the defendant's demurrer to the plaintiff's declaration. The contention of the appellant here upon this assignment is that the declaration does not exhibit a case of corporate liability, because it does not show that the defendant city was acting within the scope of its corporate powers as prescribed by law, or that it was performing any duty imposed upon it by law, when it committed the acts complained of.

The law is well settled that municipal corporations can be held liable for tortious acts only that are committed while in the exercise of some power conferred upon them by law, or in the performance of some duty imposed upon them by law. 'Where the act which produces the injury is outside of the powers conferred on the corporation, it cannot be held in damages. A municipal corporation is liable in damages for a lawful and authorized act of its agents, done in an unauthorized manner but not for an unlawful or prohibited act.' 7 Lawson, Rights, Rem. & Pr. § 4010; Cooley, Torts, (2d Ed.) 141; Field, Dam. § 80; City of Chicago v. Langlass, 52 Ill. 256; Anthony v. Inhabitants of Adams, 1 Metc. (Mass.) 284; Hunt v. City of Boonville, 65 Mo. 620; Mayor v. Cunliff, 2 N. Y. 165; Hanvey v. City of Rochester, 35 Barb. 177; Schumacher v. City of St. Louis, 3 Mo. App. 297. In discussing this rule, however, Mr. Dillon, in his work on Municipal Corporations, (3d Ed. § 968,) says: 'The rule of law is a general one that the superior or employer must answer civilly for the negligence or want of skill of his agent or servant in the course or line of his employment, by which another is injured. Municipal corporations, under the conditions therein stated, fall within the operation of this rule of law, and are liable, accordingly, to civil actions for damages when the requisite elements of liability coexist. To create such a liability, it is fundamentally necessary that the act done which is unjurious to others must be within the scope of the corporate powers as prescribed by charter or positive enactment, (the extent of which powers all persons are bound, at their peril, to know;) in other words, it must not be ultra vires in the sense that it is not within the power or authority of the corporation to act in reference to it under any circumstances. If the act complained of is wholly outside of the general or special powers of the corporation as conferred in its charter or by statute, the corporation can in no event be liable, whether it directly commanded the performance of the act, or whether it be done by its 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. But if the wrongful act be not in this sense ultra vires, it may be the foundation of an action of tort against the corporation, either when it was done by its officers under its previous direct authority, or has been ratified or adopted, expressly or impliedly, by it, or when it was done by the officers, agents, or servants of the corporation in the execution of corporate powers or the performance of corporate duties of a ministerial nature, and was done so negligently or unskillfully as to injure others, in which case the corporation is liable for the carelessness or want of skill of its officers or immediate servants or agents in the course of their authorized employment, without express adoption or ratifying act. Such are the general principles of law, concerning which there is no disagreement.' And again, in section 969, the same high authority says: 'The principle that a municipal corporation is bound by the acts of its officers only when within the charter or scope of their powers, and that acts wholly outside of the powers of the corporation, or of the officers appointed to act for it, are void as respects the corporation, is vital; and the opposite doctrine has no support in reason, and very little, if any, in the judgments of the courts...