Mayor, etc., of Hagerstown v. Dechert

• Decision Date: 12 March 1870
• Citation: 32 Md. 369
• Parties: THE MAYOR AND COUNCIL OF HAGERSTOWN v. DANIEL DECHERT.
• Court: Maryland Court of Appeals

32 Md. 369

THE MAYOR AND COUNCIL OF HAGERSTOWN v. DANIEL DECHERT.

Court of Appeals of Maryland

March 12, 1870

APPEAL from the Circuit Court for Washington County.

This suit was brought in the Circuit Court for Washington county to recover damages for the destruction of the appellee's printing office by a mob, on the night of the 24th of May 1862. To the plaintiff's declaration the defendant pleaded the five following pleas:

1st. That it is not guilty of the wrongs alleged in the plaintiff's declaration.

2d. That at the time of the alleged wrongs, as stated in the said declaration, this defendant did not have and enjoy power and authority (under the Acts of the General Assembly of the State of Maryland) to employ a police force, as alleged and averred in the plaintiff's declaration.

3d. That the defendant did not have and possess power and authority at the time of the wrongs alleged in the said declaration, under the Acts of the General Assembly of Maryland, to call in the aid of the citizens of Hagerstown to protect and defend the property of the citizens of Hagerstown, within the said corporate limits, as alleged in the said declaration.

4th. That the defendant did not have and enjoy, at the time of the alleged wrongs stated in the plaintiff's declaration power and authority, under the Acts of the General Assembly of Maryland, to employ a police force to protect and defend the property of the citizens of the said town, within the corporate limits of Hagerstown, as averred in the said declaration.

5th. That the defendant, at the time of the alleged wrongs in the plaintiff's declaration mentioned, did not have and possess power and authority, under the Acts of Assembly aforesaid, to employ a police force and call in the aid of the citizens of Hagerstown, in the said county, to protect and defend the property of the citizens of the said town within the corporate limits thereof, as alleged in the plaintiff's declaration.

The plaintiff demurred to the second, third, fourth and fifth pleas, and the Court sustained the demurrer.

At the trial of the cause the Court, on application of the defendant's counsel, signed four bills of exception.

First Exception: The plaintiff shewed that he was owner of a printing office in Hagerstown, and being apprehensive that this property would be destroyed, demanded of the Mayor protection for the same. The plaintiff's counsel thereupon asked the witness, who was the plaintiff what the Mayor said in reply to this demand. To this testimony the defendant objected, but the Court overruled the objection. Whereupon the defendant excepted.

Second Exception: The plaintiff, in the further progress of the cause, introduced a witness who stated that some days before the riot, he had a conversation with the Mayor of Hagerstown, in which the witness told him of his apprehensions that injury would be inflicted on the Plaintiff's property. The witness was then asked by the plaintiff, what was the Mayor's reply to him. To this testimony the defendant objected, and the Court overruling the objection, exception was taken.

Third Exception: A witness having stated that on the afternoon of the day of the riot, which occurred at night, he saw one of the Councilmen of the town in conversation with persons around him. The plaintiff's attorney then asked the witness what the Councilman said. To this the defendant objected, but the Court overruled the objection; whereupon the defendant excepted.

Fourth Exception: Wm. M. Tice, a Justice of the Peace, being the witness on the stand, was on the cross-examination asked by the plaintiff if the Mayor had called on him as a Justice of the Peace to assist in the preservation of the order of the town on the occasion of the riot. The defendant objected to the testimony, and the objection being overruled, exception was taken.

The plaintiff submitted the following prayers:

1. If the jury shall find from the evidence, that the defendants had good reason to believe that a riotous or tumultuous assemblage, too strong to be resisted by the plaintiff, without the aid of the city authority of Hagerstown, was about to take place at the printing office of the plaintiff, on Saturday, 24th of May, 1862, in time to prevent the same, and that the defendants had the ability of themselves or by the aid of the citizens of said city of Hagerstown, to have prevented the said assemblage before the injuries complained of were committed, and that the defendants did not use reasonable diligence in the employment of the powers entrusted to them for the purpose of preventing or suppressing the said riotous or tumultuous assemblage, and that the property of the plaintiff, situate in said city, was destroyed or injured by said assemblage, then the plaintiff is entitled to recover.

2. If the jury shall find from the evidence, that the authorities of the city of Hagerstown had good reason to believe that a riotous or tumultuous assemblage was about to take place, in the said city, on the evening of the 24th of May, 1862, in time to have prevented the same from injuring or destroying the property of the plaintiff there situate, and that the city authorities had the ability of themselves, or with the aid of the citizens of said city, to have prevented said injury or destruction, and that the civil authorities did not use all reasonable diligence and all the powers entrusted to them for the prevention and suppression of said riotous and tumultuous assemblage, and that the property of the plaintiff, situate in said city, was destroyed or injured by said unlawful assemblage, then the plaintiff is entitled to recover.

3. If the jury shall find from the evidence, that a riotous and tumultuous assemblage had taken place in the city of Hagerstown, on the evening of May 24th, 1862, and after it had taken place, that the authorities of said city had notice of the same in time to prevent injury or destruction of the property of the plaintiff there situate, by said assemblage with the aid of the citizens of said city, and that the authorities of the city, of themselves or with the aid of the citizens of said city, had the ability to prevent said injury, and that the property of the plaintiff was injured or destroyed by said assemblage, and said authorities did not use due diligence to prevent said injury, and did not call to their aid the citizens of said city for the purpose of preventing said injury, then the plaintiff is entitled to recover.

4. If the jury shall find a verdict for the plaintiff, then in estimating the damages, they are to give the plaintiff the full amount of any damages they may find was done to his property, and they have the right to add to the same, interest from the time the said damage occurred, up to the time of finding their verdict.

5. If the jury shall find from the evidence, that the Mayor of Hagerstown was notified by William Beirshing, one of the City Council, two or three days prior to the 24th of May, 1862, that a riotous assemblage was about to take place in said city, for the purpose of attacking and injuring the printing office of the plaintiff there situate, and that on the afternoon of the 24th of May, 1862, the plaintiff notified the Mayor that he anticipated that a riotous assemblage was about to take place, and would attack and injure his property, and asked the Mayor for protection to his property, and that the Mayor refused to make any effort to protect said property, and that a riotous and tumultuous assemblage did take place on that evening, and did destroy and injure the property of the plaintiff, and if they shall further find that after said notice, there was sufficient time for the Mayor of the city to have called to his aid the citizens of said city, and that with the aid of the said citizens, the said tumultuous assemblage could have been suppressed, and injury to the plaintiff's property have been prevented, then the plaintiff is entitled to recover.

The defendant prayed the Court to instruct the jury as follows:

1st. That the Act of Assembly under which the plaintiff is suing contemplates the intervention by the corporate authorities of the corporate or municipal power for the suppression of riotous or unlawful assemblies, and not by means of mere personal persuasion, and the failure or refusal of the Mayor, members of the Council, or either of them, to intervene to suppress a riotous or unlawful assemblage by using their personal and individual influence, is not such an omission of public duty as renders an incorporated town or city liable for loss of property sustained by a citizen, arising from a riotous or unlawful assembly. Therefore, if the jury find that the plaintiff's property was injured or destroyed by a riotous or unlawful assemblage within the jurisdiction of Hagerstown, and that the Mayor and Council of Hagerstown had notice that a mob was imminent, and threatening the plaintiff's property, and that the said Mayor and Councilmen refused or failed to interfere, by means of their personal influence over the rioters, to protect the property of the plaintiff, the corporation of Hagerstown is not liable for any loss of property on account of such failure or refusal.

2d. That, by the several Acts of Assembly incorporating the town of Hagerstown, in force at the time the alleged riot mentioned in the declaration of the plaintiff, there were no provisions conferring upon the said corporation power to create or employ a regular or special police force for the government of said town, or for the purpose of preventing or suppressing riots within the jurisdiction of the said town nor was there any power or authority conferred by the said Acts of Assembly upon the said corporation to call out the citizens of the said town to aid in...