McDade v. City of Chester

Opinion, Mr. Justice Clabk: This action on the case was brought against the city of Chester to recover damages for a personal injury received by the plaintiff, Cornelius V. McDade, from the explosion of a manufactory of fire-works, operated in that city by Professor Jackson. The manufactory was the individual property of the operator, and was located upon his ground. On the 17th of February, 1882, the manufactory caught fire, and, whilst the plaintiff was assisting in the extinguishment of the flames, an explosion of the fire-works occurred, from which the injury complained of was received. The plaintiff’s contention is, that it was the duty of the city to have suppressed this manufactory of fire-works; that this duty was neglected; that in consequence of the neglect, the plaintiff received his injuries, and that the city is liable in damages for the same. The question is raised upon a demurrer to the plaintiff’s declaration. The defendant sets forth, as cause of demurrer, that there was no absolute duty or obligation resting upon the city to prohibit the manufacture of fire-works, or limit the quantity of inflammable materials, which might be kept in store by Jackson, or to abate the manufacture or suppress the sale of fire-works as a common nuisance. The city of Chester was incorporated under a special act of .assembly of 14th of February, 1866, P. L. 30, with the same powers, privileges, etc., as were granted to the city of Harrisburg, under an act approved 19th of March, 1860, P. L. 175. By the eighth section, of the act of 1860, thus extended, the mayor and councils of the city of Chester were empowered “ to make, ordain, constitute and establish all such by-laws, [423] ordinances, resolutions and regulations as they may deem necessary to preserve the peace and promote the good order, government and welfare of the said city, and the prosperity and happiness of the inhabitants thereof.” By the act of April 2,1867, P. L. 677, the mayor and councils of the said city, in addition to all the powers theretofore granted, were, inter alia, further empowered: “ 11. To prohibit and remove any obstructions in the highways, and any nuisance or offensive matter, whether in the highways or on public or private ground. “ 12. To prohibit within the said city the carrying on of any manufacture, art, trade or business which may be noxious or offensive to the inhabitants thereof, the manufacture, sale or exposure of fire-works, or other inflammable or dangerous articles, and to limit and prescribe the quantities that may be kept in one place, of gunpowder, fire-works, turpentine and other inflammable articles, and to preserve such other safeguards as may be necessary.” And for the purposes aforesaid, the mayor and councils had full power to enter upon the lands or premises of any person or persons, by themselves and their duly appointed officers and agents. By the fifth section of the act of March 22,1869, P. L. 484, it was provided that the said mayor or council shall have power to cause the removal, by such means as to them shall seem best, of any nuisance. It is contended by the plaintiff in error that this manufacfij tory of fire-works was per se a public nuisance, of which the | mayor and councils, under the city charter and the several ¡ statutes referred to, were bound to take notice; that the duty j to suppress it was legal and absolute, and the city, failing to , do so, is liable for all injuries which are the approximate | results of its continuance. Upon a careful examination of j the whole case, we are unable to adopt this view of the case. ! When a legal duty has been imposed by statute upon a municipal corporation, it is undoubtedly liable for injuries resulting from the neglect of that duty; in such case it stands on the same footing in respect to negligence as a purely private corporation or an individual: Erie City v. Schwingle, 22 Pa. 388; Shear.& Redf. on Neg. 167; Dillon Mun. Corp., §§ 961-5. But the duty imposed must be absolute or imperative, not such [424] as, under a grant of authority, is intrusted to the judgment and discretion of the municipal authorities; for it is a well settled doctrine that a municipal corporation is not liable to an action for damages, either for the non-exercise of, or for the manner in which, in good faith, it exercises discretionary powers of a public or legislative character: Dillon Mun. Corp., ■§ 949. It is certainly unnecessary to cite further authorities in support of a principle so well settled; indeed, we do not understand the general doctrine to be denied, but it is argued that it is inapplicable to the case now in hand. It is likewise true that when a power is given to do an act which concerns the public interest, the execution of the power, when applied to a public officer or body, may be insisted upon as a duty, although the phraseology of the statute be permissive only; especially is this so when there is nothing in the-act save the permissive form of expression to denote that the legislature' designed to lodge a discretionary power merely. But where the power is lodged with persons exercising, or to exercise, legislative or judicial functions, and the subject-matter of the statute and its phraseology concur in showing that the authority is essentially discretionary, no absolute duty is imposed. The true rule is very correctly stated in our own case of Carr v. Northern Liberties, 35 Pa. 330, as follows: “ Where any person has the right to demand the exercise of a public function, and there is an officer or set of officers authorized to exercise that function, there the right and the authority give rise to the duty; but where the right depends upon the grant of authority, and that authority is essentially discretionary, no legal duty is imposed.” To the same effect is the very recent case of Lehigh Co. v. Hoffort, 116 Pa. 119, where it was held that an act of assembly which authorized the county commissioners to erect a foot-walk along the side of a county bridge for the public use and benefit, was a discretionary power only, and the county was not liable for the non-exercise of the same. Where the subject-matter is intrusted for legislative or judicial action, the duty of course is essentially discretionary; no person has the right to demand the exercise of this public function, and there is therefore nothing which can give rise to an absolute duty. The language of the several statutes above referred to is [425] plainly permissive only. By the act of 1860 the officers of the corporation are vested with full “power and authority” to make, ordain, etc., such ordinances, regulations, etc., as they may deem necessary, etc. By the act of 1867 it is declared that the mayor and councils, etc., in addition to all powers heretofore granted, etc., “shall have the following powers,” etc.; and by § 5, act of March 22, 1869, it is provided that they “shall have power” to cause the removal of any nuisance “ by such means as to them shall seem best.” If these provisions are held to be imperative, it must be upon some rule of construction which will impart to the words an interpretation beyond their usual signification. Moreover, the powers granted in the act of 1867 are over such matters as constitute appropriate subjects of legislation or judicial action in the government of a municipality. The laying out and opening of streets, common sewers, public squares and sidewalks; the regulation of party walls, and of weights and measures; the prohibition of horses, cattle or swine from running at large, etc., are embraced in the same section, and the regulation and control of all these respective matters are committed to the mayor and councils, in the same permissive form of words. It is plain, we think, that all the various matters mentioned in the eighth section, including the prohibition and abatement of nuisances, were given into the control of municipalities as proper subjects for legislation in the government of the city; and as such action necessarily involves the exercise of discretion, no absolute duty was imposed or intended to be imposed by the legislature. The whole question is one of legislative intention, and we find nothing in these several statutes to indicate that the legislature meant more than is plainly expressed. There can be no doubt whatever that the municipal authorities of the city of Chester had full power to act in the premises. They had undoubted authority either to limit or to prohibit altogether the manufacture, sale or exposure of fireworks within the corporate limits, and to provide such safeguards for the security of its citizens as in their judgment might be necessary. This subject-matter had been especially intrusted to their judgment and discretion in the charter and acts of assembly mentioned; but certainly no person had any right to demand the exercise of this power in any particular [426] way or to any greater extent than the mayor and councils, in good faith and in the exercise of their discretion, might see proper to provide. Many of the cases cited by the plaintiff in error refer to the non-exercise of power to repair streets and to remove nuisances therefrom. It has never been doubted that municipal corporations are responsible for the results of the negligence of their officers in the repair of their highways. The repair of the highways is a mandatory and absolute duty; it is expressly imposed by statute on the road supervisors of the respective townships: Rappho v. Moore, 68 Pa. 404; and where a municipal corporation, by the acceptance of a charter investing it with the care of the highways within its borders, withdraws the charge from this general peremptory provision, it, by implication, undertakes the duty from which it has absolved the supervisors. Where, under such circumstances, special powers are conferred upon a corporation to open, grade, improve and exclusively control and regulate the public streets within its limits, and the means are provided by taxation for this purpose, although the duty to repair is not enjoined by statute or an action expressly given, both the duty and the liability will be deduced therefrom: Dillon Mun. Corp., § 789. We are clearly of opinion that the learned court was right in entering judgment for the defendant, and therefore the judgment is affirmed.