From the Richmond Dispatch, 5/21/1863, p. 2, c. 1
I am asked to advise the Council “whether the city is liable for property destroyed by rioters, and if there is no such liability, whether, in my opinion, the Council has the right, under the charter of the city, to assume and pay claims for such property?”
It is not assumed in the terms of the question that there has been any neglect of duty on the part of the officers of the city in preventing or suppressing the riot which occasioned the loss complained of; but the naked inquiry is, in effect, whether, as insurer of all the property within its territorial limits against injuries by violence committed by mobs and rioters, the city is responsible for such injuries recently done here; and so understanding it, I have no hesitation in giving an answer in the negative. There is nothing, certainly, in the character and objects of a municipal corporation (which this city is) to create such a liability. It is a public body, in which is vested a portion of the civil power of the State, to be exercised for the purposes of local government through its several branches – legislative, executive, and judicial – a kind of imperium imperio – reflecting in miniature in its relations with the local constituent body the government of the State itself in its relations with the great body of the people. Its business is to institute and enforce all proper measures, according to the prescriptions and limitations of its charter, for the good government of the city; and, when that is done with the best judgment its members can bring to the task, their functions are appropriately discharged and at an end. For its proper performance they are, like the members of the State government, amenable to popular censure at the polls, and, in cases of willful and corrupt misconduct, to criminal prosecution. Among the numerous provisions of the charter, I find nothing express or implied to warrant the idea that such liability exists, nor have I met with any reported case or text writer which recognizes any such incident as pertaining to corporate municipal bodies. Thus in the case of Prather vs the city of Lexington, ([?]3th B Monroe, 559,) in which it was sought to make the city liable for injuries to property within its limits committed by a lawless mob, the Court say: “We know of no principle of law that subjects a municipal corporation to a responsibility for the safety of the property within its territorial limits, nor has any case been cited in which such a principle has been recognized or established. – If such a liability exists, what is its nature and extent? Does it afford protection against the acts of the incendiary and the midnight depredator, or only against the violence of a lawless mob? If against the latter only, whence arises the distinction? All the acts may be alike injurious, and if the corporation must secure the property of its members in all events, against all unlawful violence, there is no room for discrimination, but a similar liability would exist in each of the cases mentioned. There is nothing in the nature or design of a municipal corporation that imposes such a duty upon it. The chief purpose of such an institution is the adoption of such measures of police as will promote the comfort, convenience and general welfare of the inhabitants within the city, and by local laws adapted to the condition of a dense population, to impart efficiency to the local government.” Against the necessity which was felt in England for special legislation on this subject, and by which such liability has been imposed on local communities as hundreds, town and cities, shows that by common law (which in this instance is ours) it was not incidental to common municipal bodies, as such. From an early period in the English law, the hundreds into which the counties were divided were by statues made liable to persons robbed within the limits, under certain circumstances, in damages equivalent to the loss sustained. These enactments have been greatly extended in modern times, in their shape and objects; until now, by the riot act, the black act, as it is called, and others similar, there is scarcely any injury to property committed in a violent and tumultuous manner, that may not be redressed in that country by action against the hundred. To these may be added the 57th Geo. III, ch 19, sec 38, against injuries by tumultuous assemblies, making the city or town liable if not within a hundred. But we have no such legislation here.
I do not know that it is claimed by those who are asking redress by the city for losses inflicted by the late riot, that those losses have arisen from the failure of the Council to take proper measures or of the officers of the city properly and faithfully to exert themselves, to prevent and suppress the riot; but in neither aspect of the case do I consider the city liable. The Council, it is true, by the charter, must “adopt measures to suppress riots, gaming and tippling houses,” &c. They have the power to impose fines, within a certain limit, and they have the appointment of officers of police – not the Mayor, however, nor the Captain of the Night Watch – the principal officers, who are elected by the people, and they may define and prescribe the duties of these officer, – but these are public duties of a legislative nature, for the proper discharge of which the members are responsible only in their political, representative character. In this, they are to be distinguished in their action from members of a private corporation; for “private corporation, exercising the corporate functions for the benefit of the members, are liable to individuals for an omission or misfeasance of those functions: otherwise, of public corporations, instituted for purposes of government, unless an action be given against them by statute.” White vs City Council of Charleston, 2 Hitt, R (S C) 371. Neither would any delinquency of duty on the part of the police, in preventing or suppressing the riot occasioning the loss complained of, render the city liable; for these officers, although appointed by the Council – and a portion, the Mayor and Captain of the Night Watch, who are not so appointed – do not bear to the city the relation of agents to a principal who is liable for their acts. “The officers of a city are quasi civil officers of the Government, although appointed by the corporation. They are personally liable for their malfeasance of nonfeasance in office; but for neither is the corporation liable. Omissions of a duty imposed upon them by law productive of injury to an individual are not a corporate injury.” “The corporation appoints them to office; but does not, in that act, sanction their official misconduct.” Prather vs City of Lex 583 sup. “Because the corporation is as to the passages of ordinances and the appointment of officers, a Government exercising political power, it is irresponsible for the official misconduct of its officers upon the same principle which generally protects Governments and public officers from liability for the malfeasances and malfeasances of persons necessarily employed under them in the public service. Municipal corporations quo ad hos, [?] and upon the same foundation with public officers of counties, townships, and other quasi corporations, charged with some public duty, or invested with some part of the authority of Government where the employment of officers is necessary and lawful.” [?] vs Mayor of Mobile 31st Alabama R (A. S) 469. “A city is no general warranter against the acts of individuals. Its police may be appealed to, for the purpose of preventing injuries; but if such police err in judgment, or if injuries occur because they are insufficient in the discharge of the powers with which they are invested, the city at large cannot be held responsible for acts of third person, which, under a more sagacious and efficient police, might possibly have been prevented.” Howe vs. New Orleans, 12th Lou. an R 482.
As to the second branch of inquiry, if the position be well founded – that “the city is not liable for property destroyed by rioters” – it follows logically that the Council has no ‘right to assume and pay claims for such property, unless the power be claimed for it to donate the corporate fund to objects which may excite the sympathy and compassion of its members. But a municipal charter being in derogation of common right, is a system of strictly delegated powers. The power of making by laws is unquestionably an incident to the very existence of a corporation, though it is rarely left to implication, but is usually conferred by the express terms of the charter, and when the charter enables a corporation to make by laws in certain cases and objects specified, all others being excluded by implication. To raise and appropriate money is among the powers to be thus exercised, but this must be done merely to effectuate the object specified in the charter. In our charter these objects are all defined. – Among which is the care of the poor – but, as a class, defined and regulated by law, and not embracing individuals whose means may have been more or less affected by the vicissitudes of life. To be sure, in a recent amended charter of the city, the enumerations of the granted powers is accompanied by some very general language, descriptive of the Council’s authority to pass by-laws “which they shall deem necessary for the peace, comfort, convenience, good order, good morals, health or safety of said city, or of the people or property therein; but then, by a well established rule of construction, there general expressions are to be construed with reference to the restrictive character of the instrument, and the subjects embraced by them must be germane to the objects and purposes of the powers expressly granted. They cannot mesh that the Council must undertake to perform for the citizen those duties of imperfect obligation – such as personal charity and compassion for the subjects of underserved misfortune and pecuniary distress. Cases, indeed, have occurred in the proceedings of public corporations, of expenditures for purposes very alien to the objects of their institutions, and they have passed unchallenged, because they accorded with the feelings and sentiments of the tax-paying community; but, when brought to the test of judicial inquiry they have been condemned. Thus, it has been decided that a town corporation could not appropriate money to defray the expenses of a fourth of July celebration. And where a city undertook to pay the costs of a litigation in which it was no party, and not legally liable, although it was supposed to involve the feelings and wishes of its citizens, its drafts for the amount of the costs were held to be void. Holstead vs the Mayor, etc, of New York, 5th Barb 218, affirmed on appeal, as regards this city, so interesting a measure as bringing water into the city by water works, was deemed to require an express legislative grant; so the subscription by the city to the improvement of James river, by which a complete line of water transportation from the Ohio to the city was designed, though so vitally concerning its interests, was held to require a similar communication of power to the corporate body. In fine, I can perceive no ground of liability existing on the part of the city in the case submitted, nor power to assume it; and I answer the whole inquiry in the negative.
R T DANIEL, City Attorney.