Sacks v. City of Minneapolis

• Decision Date: 20 December 1898
• Docket Number: 11,306 - (146)
• Citation: 77 N.W. 563,75 Minn. 30
• Parties: JOHN SACKS v. CITY OF MINNEAPOLIS and Others
• Court: Minnesota Supreme Court

77 N.W. 563

75 Minn. 30

JOHN SACKS v. CITY OF MINNEAPOLIS and Others

Nos. 11,306 - (146)

Supreme Court of Minnesota

December 20, 1898

Separate appeals by defendants City of Minneapolis and F. W Cappelen, city engineer of Minneapolis, from an order of the district court for Hennepin county, Lancaster, J., overruling their demurrers to the complaint. Affirmed.

SYLLABUS

City of Minneapolis -- Condemnation of Cemetery -- Liability for Tort.

The charter of the city of Minneapolis authorizes it to condemn land for street and highway purposes, but it also provides that such authority shall not be construed as permitting the condemnation of any ground of any cemetery or burial place occupied for such purpose without the consent of the owner of such ground. It did, without the knowledge or consent of the plaintiff, take and condemn for street purposes his burial lot in Maple Hill Cemetery, in said city, wherein were interred five of his children, remove their bodies therefrom and bury them in one grave in said cemetery. Held, that the condemnation in said cemetery. Held, that the condemnation proceedings were within the general scope of its corporate power, as prescribed by its charter, but that, as it did not obtain the consent of the owner of said lot for such purpose, its acts were unauthorized and tortious, and hence it is liable to plaintiff in damages therefor.

Municipal Corporation -- Action upon Unauthorized Contract -- Action for Tort.

Distinction stated between actions arising on contracts made by a municipal corporation in excess of its corporate powers and actions against corporations for injuries caused by the tortious acts done by its officers and agents in the course of its business, and of their employment in excess of its powers.

Frank Healy and L. A. Dunn, for appellants.

A municipal corporation is not liable for a tort committed by its agents or officers while in the performance of some act which is beyond the power of the corporation, even though the municipality may have ordered the act to be done; neither can the city ratify such act. McCarthy v. City, 135 Mass. 197; Cuyler v. Trustees, 12 Wend. 165; Brown v. City, 90 Mo. 377; State v. Kirkley, 29 Md. 85; Cooper v. Mayor, 53 Ga. 638; Seele v. Inhabitants, 79 Me. 343; Town v. Filteau, 10 Colo. 105; Kreger v. Bismarck Township, 59 Minn. 3; Board v. Deprez, 87 Ind. 509; Trustee v. Schroeder, 38 Iowa 383; Tiedeman, Mun. Corp. § 338; 2 Dillon, Mun. Corp. § 968 (3d Ed.).

Upon the theory that Sp. Laws 1891, c. 129, is invalid, the acts of the city in the premises are wholly ultra vires and the condemnation proceedings are a nullity. Hence the respondent is still the absolute owner of the burial lot, because there has been no proper appropriation of the same to public use. Teick v. Board of Commrs., 11 Minn. 201 (292).

Penney & McMillan, for respondent.

The law recognizes and protects the right of burial. Larson v. Chase, 47 Minn. 307; Meagher v. Driscoll, 99 Mass. 281. See also Pierce v. Proprietors, 10 R.I. 227.

A municipality is liable for the tortious or unlawful exercise of its corporate power. Brink v. Borough, 174 Pa. 395; Welter v. City of St. Paul, 40 Minn. 460; Rich v. City of Minneapolis, 37 Minn. 423; Collensworth v. City, 16 Wash. 224; Donahew v. City, 136 Mo. 657; Norton v. City, 166 Mass. 48; Allison v. City, 51 Mo.App. 133; Dooley v. City, 82 Mo. 444. See also City v. Newell, 26 Ill. 320; Mayor v. Sheffield, 4 Wall. 189; Gould v. City, 60 Ga. 164; Walling v. Mayor, 5 La. An. 660; Buffalo v. City, 58 N.Y. 639; Ashley v. City, 35 Mich. 296; Weed v. Borough, 45 Conn. 170.

OPINION

BUCK, J.

The plaintiff in his complaint alleged: That on November 21, 1866, he became the owner of the north half of lot No. 2 in block 83 in Maple Hill Cemetery, in the city of Minneapolis, which he purchased for his use as a cemetery lot, and that, prior to the acts of the defendants herein complained of, he buried in said lot five of his children and a niece, all of whom remained buried in said lot until removed by the defendants, as herein stated.

On April 11, 1891, the legislature of the state of Minnesota passed a special law authorizing the defendant city of Minneapolis to vacate or cause to be vacated part of said Maple Hill Cemetery, and to remove or cause to be removed from the part so vacated all bodies interred therein, and to purchase or cause to be condemned, taken and appropriated for street purposes the part of said cemetery so taken. Sp. Laws 1891, c. 129, approved April 11, 1891. This law provided that the bodies of deceased persons removed should be properly buried within the remaining portions of said cemetery, in lots similar in size and character to those from which said bodies were removed, giving, however, the right to relatives of such deceased persons to remove the bodies of said deceased persons to some other cemetery, and the names of all deceased persons whose bodies were so removed from said portion of said cemetery, when known, and the place to which said bodies were removed should be entered on a record book, which book was to be filed in the office of the city clerk of the city of Minneapolis.

That the proceedings for the condemnation of any portion of said cemetery grounds under said law are the same as are provided by law for taking private property for like purposes, except as modified by the act. Pursuant to said law, the city of Minneapolis did appropriate and take for street purposes the portion of said Maple Hill Cemetery described in the law, which portion so taken included the premises hereinbefore described, which belonged to plaintiff, and in which said children were interred.

That at a regular and duly-called meeting of the city council of the city of Minneapolis, on June 29, 1894, a member of said city council moved that the city engineer of the city of Minneapolis be, and is hereby, directed to remove in such manner, and to such points as he may deem best, from the portions of Maple Hill Cemetery taken or required by the city for street purposes, all bodies interred therein, the expenses of such removal to be paid out of the permanent improvement fund, which motion was duly carried.

That thereafter, to wit, on November 19, A.D. 1894, said defendants, and each of them, entered upon the said burial lot, and removed therefrom the bodies of each of the said children so interred therein, but that they carelessly and negligently failed properly to bury said bodies within the remaining portions of said cemetery, in a lot similar in size or character to the said burial lot; that, upon the said removal of said bodies, said defendants, and each of them, improperly, negligently and carelessly buried the said bodies in one grave, in some place to plaintiff unknown, within the city cemetery, in the said city of Minneapolis. This plaintiff had no notice, knowledge or information of the said taking of his said lot, and never received any compensation therefor, and had no knowledge or information of the removal of said bodies until long after such removal. That, by reason of the facts hereinbefore stated, plaintiff's feelings were greatly wounded, and he has suffered great grief and mental pain anguish, to his damage, as he alleges, in the sum of $2,000.

The foregoing statement is substantially what constitutes the first cause of plaintiff's action, as alleged in his complaint, to which the city of Minneapolis and defendant F. W. Cappelen demurred separately, upon the ground that sufficient facts were not stated to constitute a cause of action.

The second cause of action is alleged to be as follows:

"Plaintiff repeats and realleges all of the allegations contained in his first cause of action herein, and makes the same part hereof.

"(2) That thereafter, and under and pursuant to said law, said defendant city of Minneapolis undertook to condemn the lands described therein, and including the said premises of plaintiff; that said condemnation proceedings were, on their face, due and regular in manner and form; that thereafter, to wit: on the 1st day of November, 1894, said defendants, pursuant to said law and condemnation proceedings, and without the knowledge or consent of plaintiff, entered upon and took possession of said described premises, and all thereof, and opened and constructed, and have ever since maintained thereon, a public street, and kept the exclusive possession thereof.

"(3) That, by reason of the facts hereinbefore alleged, said premises were of special value to this plaintiff, and were of the value of $2,000."

"(6) That, by reason of the premises, this plaintiff has been damaged in the sum of $2,000."

Each of the above defendants interposed separate demurrers to the second cause of action, viz., that neither cause stated sufficient facts to constitute a cause of action. All of the demurrers were overruled by the court, and the defendants appeal.

An examination of the second alleged cause of action first seems the most appropriate and desirable. In doing this, we assume that the special law of 1891 (chapter 129) is unconstitutional, as the legislature was then prohibited from enacting special laws for the purpose of laying out, opening or altering highways. Const. art. 4, § 33. The acts complained of were done subsequent to the passage of the special law of 1891 above referred to; and, though done by virtue of its apparent authority, yet, as that law was unconstitutional, the acts of the defendant were unlawful, in view of Sp. Laws 1881, c. 76, subc. 8, § 10 (p. 462) which provides that

"Nothing in this section shall be construed as permitting the condemnation of any ground of any cemetery or burial place and occupied for such purposes, without the consent of the owners of such...