Hill v. The Bd. of Aldermen of the City of Charlotte

• Decision Date: 31 January 1875
• Parties: D. H. HILL v. THE BOARD OF ALDERMEN of the CITY OF CHARLOTTE.
• Court: North Carolina Supreme Court

21 Am.Rep. 451

72 N.C. 55

D. H. HILL

v.THE BOARD OF ALDERMEN of the CITY OF CHARLOTTE.

Supreme Court of North Carolina.

January Term, 1875.

A municipal corporation is not liable to an action for damages, either for the non-exercise of, or for the manner in which, in good faith, it exercises discretionary powers of a public or legislative character.

( Meares v. Commissioners of Wilmington, 9 Ired. 73, cited and appro??ved.)

CIVIL ACTION, for damage, tried before his Honor, Judge Schenck, upon the complaint and demurrer at Fall Term, 1874, of the Superior Court of MECKLENBURG county.

The defendants demurred to the complaint of the plaintiff, and on the hearing, his Honor overruled the demurrer. From this judgment defendants appealed.

All the facts pertinent to the points raised and decided in this court, are stated in the opinion of Justice RODMAN.

Jones and Johnson, for appellants .

Wilson & Son and Brown, contra .

RODMAN, J.

The complaint alleges that the defendant is a corporation authorized “to make all ordinances, rules and regulations for the good government, health and safety of the property and persons in said city, not inconsistent with the laws of the State or of the United States, and to impose penalties for the breaking or infringement of any laws or ordinances by them established.” That in pursuance of this authority the authorities of the city in 1871, adopted an ordinance which prohibited all persons from firing guns or pistols, or exploding any squibs or fire crackers within the limits of the city, under a penalty of five dollars for each offence. It prohibited also the use or exhibition of fire works, &c., within the limits of the city, without the written permission of the mayor, under a penalty of twenty dollars for each offence, &c.

On 15th December, 1873, the defendants in disregard of its duty, &c., passed an ordinance suspending the above ordinance from 25th December, 1873, to the 1st January inclusive. On the evening of the 1st January, 1874, a crowd of boys and men collected in a street of the city near a building of the plaintiff, and there negligently fired off squibs, fire crackers, Roman candles, &c., whereby the said building caught fire and was burned, to the damage of the plaintiff, & c. The defendants demurred.

We conceive that nothing can be clearer, than that when a general authority is given to a municipal corporation to be exercised through its proper legislative officers, to make ordinances for the good government, health and safety of the inhabitants and their property, it is thereby left entirely to the discretion of those authorities, to determine what ordinances are proper for those purposes. Such a charter gives powers, and in a moral sense imposes duties, for in that sense there can be no power to be used for the benefit of others, that does not carry with it a moral obligation to use it to the best of the grantee's judgment and ability, for the purpose for which it is given. But it does not impose such distinct and specific duties as to enable a court to say in any given case, that they have not been performed. If a court should undertake to say, that by reason of this general grant of power, it was the duty of the municipal authorities...