Murray v. City of Omaha
| Decision Date | 06 November 1902 |
| Docket Number | 12,197 |
| Citation | 92 N.W. 299,66 Neb. 279 |
| Parties | THOMAS MURRAY v. CITY OF OMAHA ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Douglas county. Action in trespass for the tearing down a building as a nuisance under municipal ordinance. The facts appear in the opinion. Tried below before BAXTER, J. Judgment for defendants. Plaintiff brings error. Affirmed.
AFFIRMED.
I. J Dunn, for plaintiff in error.
W. J Connell and James H. Adams, contra.
POUND C. BARNES and OLDHAM, CC., concur.
This is an action against the city of Omaha and the members of the board for the inspection of buildings, appointed under its charter, to recover for the alleged wrongful tearing down of certain frame buildings condemned by the board as nuisances under provisions of a municipal ordinance. The principal contest was as to the liability of the city, and as no other question is argued in the plaintiff's briefs, we are concerned with that aspect of the case only. Section 36 of the act of 1893 [*] for the government of cities of the metropolitan class, which was in force at the time of the occurrence out of which this case arose, gave the mayor and council power to provide for fire-limits; to provide for the removal of buildings erected contrary to fire-limit regulations; to provide that buildings within such limits, which had become dangerous by reason of decay, be removed, and to assess the cost of removal upon the land, or to collect it from the owner personally. While the language used is somewhat ambiguous, taken in connection with section 107 of the same act, we think it was intended to give the mayor and council power to provide general rules upon these subjects by ordinance. Section 107 provided that in every city of the metropolitan class there should be a board for the inspection of buildings, which should "have charge of the enforcing of all ordinances pertaining to party walls, or the erection, construction, alteration, repair, or removal of buildings." In other words, the power to make rules on such subjects was left to the city; the power to apply, execute and enforce them was intrusted to this board. The statute also provided that the principal and executive officer of the board should be an inspector of buildings, and the city authorities, evidently construing the statute as we have done, provided, in the ordinances shown in evidence, certain general rules for carrying out the powers given by section 36, and left their execution to that officer. The contention of the plaintiff is that the provisions of the ordinance as to the mode of procedure in removing a dangerous building were not strictly adhered to, and that for such reason the defendants became liable. A verdict for the defendants was directed in the trial court, and the plaintiff has come here by petition in error.
We are of opinion that the city was not liable for the manner in which the board for the inspection of buildings exercised its office. The execution of laws and ordinances as to the erection, repair and removal of buildings was given expressly, not to the city, but to this board. The board was not under the control of the city government, but exercised its own discretion. It could not be ordered to condemn or remove this or that building. All the city could do was to enact ordinances providing general rules. When these were enacted, their execution and application was left to the board. The city did not enforce them. As the board was the creature of the statute, and exercised powers derived from the state, not from the city, we do not see how it can be said to represent the municipality so as to make the latter liable for its wrongful acts. The individual members are the persons to proceed against, not the city. As a general rule, a municipal corporation is not liable for the torts of an independent board, constituted by the charter or by general law to perform some public service from which the municipality derives no special advantage in its corporate capacity, even though the duties imposed on such board might have been imposed upon the municipality, and its members are appointed by the municipal government under the provisions of the charter or law. 1 Beach, Public Corporations, sec. 740; Williams, Municipal Liability for Tort, secs. 16, 17; 20 Am. & Eng. Ency. Law. [2d ed.], 1203. In such case the board represents the state and exercises its sovereignty; it is not an agent of the municipality. That the duties confided to the board in question were for the interest of the general public and might equally well have been left to a board appointed by the state government, or even to a state officer, is illustrated by other provisions in our laws. Not to mention the various statutes which are or have been in force providing for appointment of fire and police commissions by the governor, and giving such boards extensive powers in...
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