Dooley v. City of Kansas

• Decision Date: 31 October 1884
• Citation: 82 Mo. 444
• Parties: DOOLEY v. THE CITY OF KANSAS, Appellant.
• Court: Missouri Supreme Court

82 Mo. 444

DOOLEY

v.THE CITY OF KANSAS, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Wash Adams and R. H. Field for appellant.

The petition states no cause of action against appellant, for it charges appellant with an act that it was not and is not capable of committing. Rowland v. City of Gallatin, 75 Mo. 136; Dillon on Munic. Corp. (3 Ed) §§ 89, 561, 565; Hanny v. Rochester, 35 Barb. 177; Field v. Des Moines, 39 Ia. 575; Mitchell v. City of Rockland, 52 Me. 118.

Gage, Ladd & Small for respondent.

The establishment and keeping of the pest-house were within the scope of the purposes for which the city was organized, and the fact that the act was done at an improper place or in an unlawful manner creates the liability of the city. Soulard v. St. Louis, 36 Mo. 546; Hickerson v. Mexico, 58 Mo. 61; Lee v. Sandy Hill, 40 N. Y. 447; Dillon on Munic. Corp. 769; Hunt v. Boonville, 65 Mo. 620.

HENRY, J.

By this suit the plaintiff seeks to recover damages from defendant for a trespass upon a tract of land owned by him, without the limits of the city. In the spring and summer of 1881, the small-pox was prevailing in the City of Kansas, which had no pest-house, and the patients were sent out, in charge of the city police and city physician, and placed in tents by the road-side, in the river bottom, east of the city. The neighbors there compelled the removal of the camp by violence, and the physician and police finally took possession of plaintiff's premises, where they remained from June until the last of August, under control of officers constituting the city board of health. The expenses of this camp were paid by the city, under ordinances authorizing it. Plaintiff obtained a judgment, from which the city has appealed.

The principal question for consideration, is whether the city is liable on the above facts. It is contended by her counsel in an ingenious argument that the city was not authorized to acquire property for use as a pest-house, except by purchase, and that the occupancy of plaintiff's premises was ultra vires and, therefore, the city cannot be held liable for the trespass. The argument is more specious than sound. If a city can be held liable for no act which it is not authorized to perform, then since no city charter authorizes it to perpetrate a wrong, no town or city can ever be held liable for a tort authorized by it. To the contrary, are Hunt v. Boonville, 65 Mo. 620; Thompson v. Boonville, 61 Mo. 283 and Soulard v. St. Louis, 36 Mo. 546. In the latter case the city of St. Louis proceeded to appropriate private property, for street purposes, without observing the mode prescribed by its charter for acquiring it. It was held to have been done “without authority of law; it was wrongful and amounted to a trespass;” and the following was announced as the law on the subject: “A corporation is civilly responsible for damages occasioned by an act, as a trespass or tort, done by its command by its agents, in relation to a matter within the scope for which it was incorporated.

The City of Kansas by its charter is authorized: “To purchase and hold property, real and personal, beyond the limits of the city, to be used for the erection of pest-houses, for the reception of persons afflicted with contagious, or other loathsome diseases.” Instead of purchasing property for that purpose, she proceeded to seize the property in question, just as the city of St. Louis took possession of the property of a citizen for street purposes, without regard to the prescribed formalities for its acquisition. The city of St. Louis was held liable as a trespasser. Soulard v. The City, supra. We are unable to perceive a distinction, in principle, between an unlawful seizure, under the power of condemnation, and such a seizure under a power to purchase. They are but different modes of acquisition. The property taken by the City of Kansas was for a purpose...