Prather v. City of Lex.

• Citation: 52 Ky. 559
• Court: Court of Appeals of Kentucky
• Decision Date: 27 January 1852
• Parties: Matilda Prather <I>vs.</I> City of Lexington.

Page 559

52 Ky. 559

Matilda Prathervs.

City of Lexington.

Court of Appeals of Kentucky.

January 27, 1852.

ERROR TO FAYETTE CIRCUIT.

Judge SIMPSON delivered the opinion of the court.

This was an action on the case brought by Matilda Prather against the city of Lexington, for an injury she sustained in the partial destruction of a dwelling house belonging to her, and situated within the city, by the violence of a mob.

She alleged in her declaration, that a mob, consisting of a large assemblage of persons wholly unknown to her, collected in and about her dwelling house, and with force and violence injured and defaced the doors, windows, floors, and various other parts of the building to such an extent as to render it entirely uninhabitable; and that the city of Lexington, by and through her mayor and other officers, neglected, failed, and refused to call in requisition the law, in order to protect her property from the violence of the mob, and willfully and wantonly neglected and refused to suppress it, although apprised of its existence and its unlawful conduct in the destruction of her property. A demurrer to the declaration having been sustained, and a judgment rendered against her by the court below, she has prosecuted a writ of error to reverse the judgment.

The act to incorporate the city of Lexington vests in the mayor and city council the fiscal, prudential, and municipal concerns of the city. It authorizes them to pass all needful by-laws for its government, to appoint a city marshal, and to employ as many watchmen as they may, in their discretion, deem necessary for its safety and advantage. It constitutes the mayor of the city the chief executive officer of the corporation, and makes it his duty to be vigilant and active at all times in causing the laws and ordinances of the city to be duly executed and put in force. And it makes the watchmen conservators of the peace, and vests them with power to apprehend all felons, rioters, breakers or disturbers of the peace, and all persons of riotous and disorderly conduct, and to carry them before the mayor or some justice of the peace, to be dealt with according to law. These are all the provisions of the act that have any bearing upon the question of the liability of the city for the injury sustained by the plaintiff; there is nothing contained in the act expressly subjecting the city to a responsibility for the depredations of mobs, or making it liable for the official conduct of its officers.

The action, it will be perceived, is not brought against any of the city officers to hold them responsible for an injury sustained by the plaintiff in consequence of a failure upon their part to discharge a duty legally incumbent upon them, but it is brought against the city, in its corporate capacity, to hold it responsible for the supposed misconduct of its officers.

Where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual. But as a general rule a corporation is not responsible for the unauthorized and unlawful acts of its officers, although done under the color of their office; to render it liable, it must appear that it expressly authorized the acts to be done by them, or that they were done in pursuance of a general authority to act for the corporation, on the subject to which they relate. (Thayer v. Boston, 19 Pick. 511.) It has also been held that cities are responsible to the same extent, and in the same manner as natural persons for injuries occasioned by the negligence or unskilfulness of their agents in the construction of works for their benefit. (Ross v. City of Madison, 1 Smith, 98; Mayor of Memphis v. Lasser, 9 Hump. 757.) And where a city corporation is bound to keep the streets and sewers of the city in proper repair, it is liable to damages if any person be injured by its neglect to have such repairs made. (The...