Lynde v. City or Rockland

Barrows, J. The case is presented upon a report with this stipulation : “if tbe action can be maintained upon proof of all tbe facts contained in tbe declaration, then it may stand for trial; otherwise, a nonsuit is to be entered.” Tbe plaintiff insists that tbe action is maintainable upon the strength of tbe allegation that “the said defendants by their health committee, and their agents and officers of the said city of Rockland, duly authorized therefor, took possession of said hotel against the wishes and remonstrance of the said plaintiff, . . . and used it for a pest house and hospital” for small pox patients; that the question is whether any of the officers of a city, acting within the scope of their official duties as defined by the laws of the state, can bind the city to pay rent or damages by taking possession of a house and using it for a hospital for small pox patients; and that under various provisions of R. S., c. 14, they have that power. But in order to reach his position the plaintiff’s counsel ignores the specific allegation in the writ, of facts which preclude us from considering the case as one of contract between the plaintiff and the city acting through its lawfully authorized agents and officers, or as one in which the plaintiff’s house was lawfully impressed for use as -a hospital by application to two justices, so as to give the owner a right to the “just compensation to be paid by the city or town,” under the provisions of the chapter to which he refers. If the plaintiff had a case which would authorize a recovery from the city upon either of these grounds, he should have sued in [315] assumpsit with the proper averments to establish the legal liability of the city to pay the rent or just compensation. But it is impossible to construe the declaration before us except as one of trespass on the case in which the plaintiff seeks to hold the city responsible for alleged wrongful acts of the officers elected by it to perform certain duties imposed by the laws of' the state. That no action against the city can be maintained upon such facts as are here alleged must be regarded as settled law in this state. The reasons and authorities are so fully set forth in Mitchell v. Rockland, 52 Maine, 118, 121, 125, that further discussion would be superfluous. See also Dillon on Municipal Corporations, § 772. The allegation that the acts of the health committee and officers of the city were “against the wishes and remonstrance” of the plaintiff puts an end to any pretense of a contract between the parties. The averments “that at no time was there any person in his said hotel so sick with said disease but could have been removed therefrom without any danger to his health,” and that the plaintiff “urged tho defendants to remove said persons if sick with said disease without delay,” if established, would show that the officers were acting in excess of any authority conferred upon them by chapter 14; because no power is given by that chapter to the officers of a town or city to impress any building for a hospital — that power being conferred only upon two justices of the peace. Section twenty-nine relates only to a provision to be made by the municipal officers, in the ordinary mode, by contract. The declaration in the plaintiff’s writ precludes the idea of any act or contract of the officers of the city for or upon which the city could be liable. Herein the case differs from C. & O. Canal Corp. v. Portland, 62 Maine, 504, in which the defendants were charged with doing, by their servants and agents, acts which for aught that appears in that declaration might have been done in the assertion of some supposed corporate right, and for the doing of which, under the direction of the municipal officers, the corporation might properly be held responsible according to the doctrines laid down by Judge Dillon, ubi supra, and by Shaw, C. J., in the case of Thayer v. Boston, 19 Pick, 511. [316] The distinction between this latter case, where the city claimed to be owners in fee of the land upon which the acts were done of which the plaintiff complained, and such cases as Mitchell v. Rockland, and the case at bar, is too well marked to require further discussion here. Plaintiff’s counsel suggests an amendment eliminating certain averments incompatible with the maintenance of the action against the city. To allow it would be contrary to the stipulation upon which the case is reported. The proposition comes too late. If such an amendment were consistent with the actual facts, it should have been proposed when the case was before the court at nisi prius. Plaintiff nonsuit. AppletoN, C. J., DiokersoN, Daneobth, Yiboin and Peteks, JJ., concurred.