Young v. City of Kansas

I. Hall, J. The ordinance directing the construction of the culvert authorized the city engineer to determine its dimensions. The point is made by defendant’s counsel, that it was the duty of the common council.to have provided, by ordinance, what the dimensions of the culvert should be, and that the ordinance in question delegated the power of the common council in that respect to the engineer, and thereby relieved the defendant of all liability on account of the construction of the culvert. This contention of counsel is based upon the following provisions of defendant’s charter: “The common council shall have * * * , and likewise shall have power within the jurisdiction of the city, by ordinance: * * * Eight. To establish, erect, and keep in repair- bridges, culverts, and sewers, and to regulate the use of the same; to establish, alter, and change the channel of water-courses, and to wall them up and cover them over.” Sect. 1, art. 3, of amendment to charter; Laws of 1875, pp. 203. 204. “The common council shall have power to cause to be graded, constructed, reconstructed, paved, or otherwise improved and repaired, all streets, sidewalks, alleys, or public highways, or parts thereof, within the city, at such time, and to such extent, and of such dimensions, and of such materials, and in such manner, and under such regulations, as shall Toe provided by ordinance; * * *” Sect. 1, art. 3, amend, to chart.; Laws of 1875, p. 250. The argument is that the culvert, because it was in the street, is to be deemed a part of the street, and is, therefore, subject to the provisions of the charter requir — 113 — ing the ordinance, ordering certain street improvements, to prescribe the dimensions and materials of the work. The above provisions of the charter must, however, be construed in connection with other provisions of the charter, in order to determine the correctness of the contention. The mode of assessing and collecting the cost of the various kinds of street improvements referred to is provided by • several sections of article eight of the amendment of the charter referred to above. Culverts are not included in the improvements enumerated in the first section of said article. This must be conceded. Mention of culverts is made in the whole article in only one instance. Section seven of said article eight contains, among other things, the following provisions: “The work done in constructing, partially or wholly, any street or avenue, may be protected from surface water by temporary drains or culverts, put in under the directions of the city engineer or other officer in charge of or superintending the work, or otherwise, as provided by ordinance; and the same be closed, removed, or altered at will, and the city shall not be liable for damage resulting to private property from insufficiency or want of repair of such drains or culverts, or in respect thereof, in any way.” As culverts are not contained in the enumeration of street improvements; as no provision is made for the payment for culverts, or mention made of them in the whole article concerning street improvements, except in the one instance stated, it is clear to our minds that culverts cannot be deemed to'be street improvements, or held to be subject to the provision of the charter in relation to street improvements, except in that single instance. There is no pretense made that the culvert in suit was built as a temporary culvert, to protect a street improvement. The charter did not require the common council to prescribe the dimensions of the culvert. The ordinance properly — 114 — conferred upon the city engineer the power to determine such dimensions. II. It is contended by the defendant’s counsel that the act of determining the dimensions of the culvert was a quasi- judicial act, and that a mistake as to the dimensions required would not render the defendant liable. The distinction between the ministerial and judicial duties of a municipality is, as has been well said by Judge Dillon, “plain in theory, but oftentimes difficult of application to particular cases.” The distinction would seem to necessarily rest upon a discretion had by the city to discharge or not discharge the duty, because where the duty is absolute and imperative, and the city has no discretion, the duty is ministerial, its discharge not depending upon the exercise of judgment, but being required by law. It is by force of this reason for the distinction between ministerial and judicial duties, that a duty which is judicial before the municipality has entered upon the performance of it, frequently becomes, when its performance is entered upon, ministerial. The municipality has a discretion to do or not to do the work; the duty is, therefore, judicial up to the time that it is determined to do the work; but when the work is ordered, the law often requires that it be done in a particular manner, or that it be not done in a certain way, and, therefore, after the work is ordered, the duty of the municipality to do the work in the manner required, and not to do it in the way forbidden, is ministerial. The municipality, as to these two things, has no discretion ; as to them its judgment is superseded, controlled, and directed by the requirements of the law, and its duty is to comply with these requirements. This idea has been clearly set forth in many adjudicated cases, but it has nowhere, so far as I know, been better expressed than in Hinds v. City of Marshal (22 Mo. App. 214), in which case, after recognizing the doc — 115 — trine that the duty oí a municipality to improve its' streets is a judicial duty, which the municipality, in its discretion, may determine to exercise or not exercise, the duty of the municipality in doing the work, when determined upon, was, in certain respects, declared to be ministerial, in these words: “But as the further and imperative duty rests upon the corporation to protect its streets and sidewalks from dangerous nuisances and obstructions, and to keep them in a reasonably safe condition for use by the public by day and night, it would be an absurd contradiction to say that it might determine on a plan for the improvement of its streets, which would expose the public to perils and dangers of life and limb, by digging yawning ditches along and about its highways, and leave them unprotected and unguarded, and without any danger signals, to entrap the unwary, and often the most vigilant, at night.” There is a wide difference between the power of a municipality with respect to natural streams and surface water. Dillon on Municipal Corp., sect. 797. The author there states that a municipality has not the right, with respect to natural streams, to injure the property of others “ by badly-constructed and insufficient culverts or passage-ways, obstructing the free flow of water.” In support of the text, many cases are cited in a note, and among others, Rose v. St. Charles (49 Mo. 509), in which case it was held that the defendant city was liable for the damages caused by damming up a water-course in the grading and filling of certain streets. The difference between the power of a city with respect to natural streams and surface water, has been further recognized by our Supreme Court, in Imler v. City of Springfield (55 Mo. 126), and Barns v. City of Hannibal (71 Mo. 449). In the former case it was said: “A liability would exist against a city for filling up or damming back a stream of running water, so that it would overflow its banks and flow upon the land of another; but a very different — 116 — rule exists as to surface water.” In the latter case, the defendant city was held liable for damages caused by it in changing the channel of a natural stream, under the-authority of its charter, by reason of the new channel having been constructed of a width and depth insufficient to afford a passage-way for the water of the stream,, equal in capacity to the old channel. In making the culvert, in the present case, it was the duty of the defendant, absolute and imperative, to-so make the culvert as not to obstruct the water of the running stream, to the injury of others. As to that duty, the defendant had no discretion. The defendant did not have to build a culvert at all, but in building a culvert, when it was determined to< build one, the defendant had to build one in accordance-with the requirement named, i. <?., so as not to obstruct the water of the stream, to the injury of others. The-defendant had to build a sufficient culvert; the defendant had not the right, in building a culvert, to create a nuisance. Hence, the act of determining the dimensions of the culvert was a ministerial and not a judicial act: and the defendant was liable for all damages caused by the insufficiency of the said dimensions. This conclusion is supported by the following cases, in addition to those already cited: Spellman v. City of Portage, 46 Wis. 147; Perry v. City of Worcester, 6 Gray, 544; Parker v. City of Lowell, 11 Gray, 353; Sprague v. City of Worcester, 13 Gray, 196; Rochester White Lead Company v. City of Rochester, 3 Comstock, 463; Mootry v. Town of Danbury, 45 Conn. 555; Noonan v. City of Albany, 79 N. Y. 170. So far as concerns this point, the declarations of law given for the plaintiff were fair to the defendant. The said declarations of law also, in effect, declared the law properly as to the defendant’s duty in regard to extraordinary rains. The case having been tried by the-court, without the aid of a jury, .the declarations of law are to be considered by us as only for the purpose of' — 117 — ascertaining the theory on which the court tried the case. Hence, we do not think the objection made by the defendant to the action of the court, in refusing certain declarations of law asked by it, referring expressly to the subject of extraordinary rain-storms, well made. The declarations of law given for the plaintiffs clearly show that the court tried the case in accordance with the correct theory in regard to that matter. III. The latter clause of that portion of section 1, oí article 3, quoted above, being in these words: “To establish, alter, and change the channel of water-courses, and to wall them up, and cover them over,” cannot be held to authorize the common council to disturb any vested rights. Such does not appear to have been the intention of the legislature. The intention of the legislature to confer such power upon the common council would have to be clear and manifest before we should so construe the charter, because a provision effectuating such intention would seem to be prohibited by that provision of the constitution of this state in these words: “That private property shall not be taken or damaged for public use, without just compensation.” Const. of Mo., sect. 21, art. 2. The change of the channel of the stream, made by the city of Hannibal, on account oí which it was held liable- in Barns v. City of Hannibal (supra), was made under an express provision of its charter. IY. Declaration of law, number twelve, asked by the -defendant, stated a correct proposition of law. This .seems to be conceded by the- counsel for the plaintiffs, for the reasons given by them to sustain the action of the court in refusing said declaration of law are, that it presented an issue not raised by the pleadings, and' that there was no -evidence to support it. An examination — 118 — of the abstract of the record discloses sufficient evidence on which to base the declaration of law. We can conceive of no reason for the court’s action in refusing to give it, except the other reason assigned by counsel, i. e., that it presented an issue not raised by the pleadings. The answer contained a general denial. As to the issues raised by a general denial, in a case for negligence, Judge Bliss says “ In gn action for negligence, by which property or the person is injured, the fact that the injury results from the negligence of defendant, is put in issue by a general denial, and, hence; he may show affirmatively, under such denial, that the injury arose from some other cause.” Bliss on Code Plead., sect. 829. And on this subject Mr. Pomeroy says : “In actions for injuries to persons or property alleged to have resulted from the defendant’s negligence, he may prove, under a general denial, that the wrong was caused by the negligence of third persons, not agents of the defendants, and for whom he was not responsible ; or he may prove contributory negligence of the plaintiff.” Pomeroy’s Rem. & Rem. Rights, sect. 675. In this state contributory negligence of the plaintifl must be specially pleaded. Donovan v. Railroad, 89 Mo. 149. But, with this exception, the foregoing statements of the issues raised by the general denial, in an action for negligence, seems to have the approval of oui Supreme Court. In Cousins v. Railroad (66 Mo. 572), it was held that in an act,ion against a railroad company, under the old fifth section of the damage act, for killing stock, it was competent for the railroad company to show, under the general denial, that the injury was caused by a locomotive, which was, at the time, being used by a servant of the company, without authority, for purposes of his own, and outside of the line of his employment. The general rule as to the effect of the general .denial, under the.code, is: “It forces the plaintiff to — 119 — prove all the material allegations of facts contained in his complaint or petition, and constituting his cause of action, by sufficient evidence at least to make out a prima facie case; it also permits the defendant to offer any and all legal evidence which controverts those averments, and contradicts the plaintiff’s proofs.” Pomeroy on Rem. & Rem. Rights, sect. 666; see, also, Bliss on Code Pleadings, sect. 326. By proving that some one else than himself caused the injuries complained of, the defendant would necessarily prove that he did not cause said injuries. Logically, it must follow, from the general rule stated, as to’ whose correctness there can be no question, that the defendant, under the general denial, may prove that a third party caused the injuries in suit. In our opinion, the general denial raised the issue presented by the declaration of law. For the refusal of the court to give' said declaration of law, the judgment must be reversed, and the cause remanded. It is so ordered. All concur.