Hull v. Town of Roxboro

• Decision Date: 30 October 1906
• Citation: 55 S.E. 351,142 N.C. 453
• Parties: HULL v. TOWN OF ROXBORO.
• Court: North Carolina Supreme Court

55 S.E. 351

142 N.C. 453

HULL v. TOWN OF ROXBORO.

Supreme Court of North Carolina

October 30, 1906

Appeal from Superior Court, Person County; Moore, Judge.

Action by Luther Hull against the town of Roxboro. From a judgment for plaintiff, defendant appeals. Affirmed.

A municipal corporation is not civilly liable for failure to pass ordinances which, if passed, would preserve the public health or otherwise promote the public good.

A municipal corporation, having enacted health ordinances under its legislative power, is not civilly liable for any omission to enforce the same or to see that they are properly observed.

Plaintiff alleges that defendant is required by its charter to enact and enforce ordinances which may be necessary to preserve the public health and to prevent the existence of nuisances, and that in compliance with this requirement it did pass ordinances for the suppression of nuisances and the protection of public health, which prescribed fines and penalties for their violation, and among others an ordinance providing how pigsties or hogpens and privies, should be erected and kept clean, so as to prevent offensive odors therefrom, which would cause contamination of the air and produce disease, thereby making them a nuisance; that one of the plaintiff's neighbors, living on an adjoining lot kept his hogpen and privies in a filthy condition, contrary to the provisions of the said ordinances, and that they were so situated with reference to the plaintiff's dwelling being on a higher level, that the drainage from them was carried upon the plaintiff's premises, and that by reason thereof the health of the plaintiff's wife and of his infant child was seriously impaired, and that he was consequently put to great trouble and expense in their cure that he requested the mayor and two of the commissioners of the town to notify the board of commissioners of the existing condition of his neighbor's lot, and warned them that it was a menace to the health of his family, but that the defendant failed to enforce the said ordinances and abate the nuisance, though the health officer of the town reported the condition of his neighbor's premises to the board, and they were therefore advised of the situation. The plaintiff then alleges the special damage he has suffered as the result of the alleged wrongful acts and omissions of the defendant and prays judgment for $1,500 and costs. The defendant first answered denying the material allegations of the complaint but at the trial demurred ore tenus thereto, upon the ground that no cause of action was stated therein. The court sustained the demurrer and dismissed the action. Plaintiff excepted and appealed.

Manning & Foushee and W. T. Bradsher, for appellant.

Wm. D. Merritt, for appellee.

WALKER, J. (after stating the case).

The plaintiff seeks in this action to recover damages upon the ground that the defendant has failed to enforce certain ordinances it had enacted for the suppression of nuisances, and he alleges that by reason of this omission of duty he has suffered an injury in the way he describes. The particular grievance of which he complains seems to be that as the defendant had the power under its charter to pass ordinances for the protection of the public health, and did pass such ordinances which were adequate for that purpose, it was bound, through its officers, to insure an absolute observance of them by the inhabitants of the town, and that a liability arises to any one who is specially damaged whenever such officers fail, even in a passive way, to secure their observance, and that this asserted principle entitles him to compensation for the injury resulting from their inaction. He bases his whole claim upon the theory thus advanced. There is nothing better settled in the law than that the powers and the correlative duties of a municipal corporation are of a twofold character--the one public, that is, governmental and legislative or discretionary; and the other private, that is, absolute and ministerial. In the former case it acts as an agency of the state for the purpose of governing that portion of its people residing within the municipality, but in its corporate and private capacity it acts for itself and for its own benefit and advantage, though the public may derive a common benefit from the due and proper exercise of its powers and the performance of its duties which are ministerial. It is exempt from liability for any injury resulting from a failure to exercise its governmental powers, or for their improper or negligent exercise, but it is amenable to an action for any injury caused by its neglect to perform its ministerial functions, or by an improper or unskillful performance of them. Where it is acting in its governing capacity it is not responsible, because it is then presumed to be in the exercise of a part of the power of the state and therefore under the same immunity. We believe the distinction between the two classes of powers and duties, as we have stated it, is clearly recognized by the authorities, which appear to be quite uniform. Joyce on Nuisances, § 354; 2 Dillon, Mun. Corp. (4th Ed.) § 949; McIlhenny v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L. R. A. 470; Jones v. Williamsburg, 97 Va. 722, 34 S.E. 883, 47 L. R. A. 294. The courts, in enforcing the principle thus established, have held almost with unanimity that a municipal corporation is not civilly liable for the failure to pass ordinances, even though they would, if passed, preserve the public health or otherwise promote the public good. A leading case upon this subject is Hill v. Charlotte, 72 N.C. 55, 21 Am. Rep. 451, which has been cited with approval in many other courts. It is equally well settled that, if the corporation has enacted ordinances under the legislative power granted in its charter, it is not civilly liable for any omission to enforce them or to see that they are properly observed by its citizens or those who may be resident within the corporate limits. 2 Dillon, Mun. Corp. § 950; Hines v. Charlotte, 72 Mich. 278, 40 N.W. 333, 1 L. R. A. 844; Wheeler v. Plymouth, 116 Ind. 158, 18 N.E. 532, 9 Am. St. Rep. 837; Harman v. St. Louis, 137 Mo. 494, 38 S.W. 1102; Forsyth v. Atlanta, 45 Ga. 152, 12 Am. Rep. 576; Robinson v. Greenville, 42 Ohio St. 625, 51 Am. Rep. 857; Fifield v. Phoenix, 36 Pa. 916; New Orleans v. Abbagnato, 62 F. 240, 10 C. C. A. 361, 26 L. R. A. 329; Rivers v. Augusta, 65 Ga. 376, 38 Am. Rep. 787; Brinkmeyer v. Evansville, 29 Ind. 187; Moran v. Car Co., 134 Mo. 641, 36 S.W. 659, 33 L. R. A. 755, 56 Am. St. Rep. 543; Griffin v. N. Y., 9 N. Y. 456, 61 Am. Dec. 700; Lorillard v. Monroe, 11 N.Y. 392, 62 Am. Dec. 120.

A few striking passages selected from those cases and law writers which are among the best authorities will serve to show the steady trend of judicial thought upon this important question; the leading idea being that for a failure in governmental action municipal corporations are responsible only to their corporators or to the power which brought them into being. "A municipal corporation is, for the purposes of its creation, a government possessing to a limited extent sovereign powers, which in their nature are either legislative or judicial, and may be denominated 'governmental' or 'public.' The extent to which it may be proper to exercise such powers, as well as the mode of their exercise by the corporation, within the limits prescribed by the law creating them, are, of necessity, intrusted to the judgment, discretion, and will of the properly constituted authorities to whom they are delegated; and, being public and sovereign in their nature the corporation is not liable to be sued either for a failure to exercise them or for errors committed in their exercise." Kistner v. Indianapolis, 100 Ind. 210. "The [defendant in this case] is a municipal government whose powers are defined and limited by the terms of its charter of incorporation. The exertion of its powers by its constituted authorities in prescribing rules of police and imposing and inflicting penalties for their infraction is but a mode of exerting the power of the government of the state within the limits of the city. It is a government within a government. Still they are the same--the one being the execution of the will of the other within certain established boundaries of...