Wallace v. City of Richmond

Cabdwell, J., delivered the opinion of the court. This is a writ of error to a judgment of the Circuit Court of the city of Richmond. The suit was brought in June, 1871, to recover of the defendants in error, the city of Richmond, the value of liquor claimed to have been the propeity of the plaintiff in error, of the alleged value of $30,000, destroyed during the night of April 2, 1865, but a few hours before the city was evacuated by the Confederate forces and entered by the Federal army. The resolutions adopted by the council of the city at a called meeting of that body in the afternoon of April 2, 1865, and by authority of which it is alleged the liquor was destroyed; are as follows: — 212 — “1. Resolved, That it is the imperative duty of this council in case of the evacuation of the city by the government and army to provide as far as it can for the immediate destruction of the stock of liquor in the city. “2. Resolved, That a committee of twenty-five citizens in each ward be appointed by the president to act in behalf of the city, and proceed at once to accomplish this object. That said committee destroy on the premises all the liquor they can find, giving receipts for the same to the holders. “3. Resolved, That the faith of the.city be and is hereby pledged for the payment of the value of all liquor so destroyed to the holders of said receipts.” After the adoption of the above resolution, the following resolution was offered and adopted: “Resolved, That the committee under Mr. Burr’s resolutions be instructed to proceed to carry them out when General Lee orders an evacuation of the city, but they shall at once, if practicable, remove the same to some warehouse where it can be guarded and destroyed when necessary.” The declaration contained a special count setting forth the facts (including the fact that the plaintiff was not given a receipt for his liquor), to which were added the common counts in assumpsit. ' A demurrer was filed by the defendant to the declaration as a whole, and to each count thereof, which was sustained as to. the special, count, and overruled as to the common counts. At the trial upon the plea of non assumpsit, November 27, 1893, the plaintiff offered in evidence a copy of the resolutions of the city council, and evidence tending to show that his liquor was destroyed in pursuance of the resolutions, and the amount and value thereof, but that the committee superintending the destruction failed to give a receipt for the. same. To the introduction of this evidence, other than the copy of the resolutions, the defendant objected, on the ground that — 213 — the committee gave no receipt for the liquor so destroyed,' which objection the court sustained, and refused to permit this evidence to go to the jury, to which ruling the plaintiff excepted. A verdict was then found for the defendant, and the plaintiff moved the court to set it aside, as contrary to the law and the evidence, and grant him a new trial, which motion the court overruled, and entered judgment for the de fendant, to which action of the court the plaintiff again excepted. We do not deem it at all necessary to consider the questions of pleading and practice made by the record; nor the question' whether or not it is essential to a recovery in the case that the plaintiff should have had the receipt contemplated in the resolutions. Suffice it to say upon this question that we construe the expression in the resolutions, “giving receipts- therefor,” as merely directory to the committees appointed to superintend the destruction of the liquor, and an intended to furnish a convenient mode of evidence as to the property that might be destroyed; that such a receipt would not constitute conclusive evidence as to either the citizen or the city, for it could be contradicted or explained by either party, and therefore it could not be considered as a condition-precedent to the liability of ,th'e city. 1 Greenleaf on Ev., sec. 305; Parsons on Contracts (5th ed.), 555; Bishop on Contracts (new), sec. 176. The main question, indeed, we may say, the all absorbing question for our determination, is: Did the council have the right, under the law, to direct the destruction of the plaintiff’s liquor and bind the city to pay him for it? There are two adjudged cases that grew out of the destruction of liquor on the 2d of April, 1865, under the resolutions of the council set out above, and they are cited in support of the assignment of error to the judgment of the court below. The one is Jones v. City of Richmond, decided by this court, and reported in 18 Gratt. 517; and the other The City — 214 — of Richmond v. Smith, decided by the Supreme Court of the U. S., 15 Wall. 437. We do not, however, understand that the decision in the last named case has any controlling influence in the consideration of the question before us. At the trial of that case in the lower court the defendant demurred to the declaration, ■which demurrer was overruled; whereupon the defendant offered two special pleas. (1.) That the city never contracted or assumed the debt, and (2.) that the property would have been destroyed by fire on the morning of April 3, the day of the evacuation, even if the committee had not poured it out on the street during the night of the 2d. The plaintiff took issue on the first plea, and demurred to the second, which demurrer was sustained, and the case heard upon the first plea by the judge, without a jury. The court gave the judgment against the city, and a writ of error was awarded. In the opinion of the Supreme Court, it clearly appears that the court considered that under its rules notice could not be taken of the issue under the first plea, or of the demurrer to the declaration. Indeed, the opinion says that “nothing is open to examination in this case except the ruling of the court in sustaining the demurrer of the plaintiff to the second plea of the defendant.” In concluding its opinion, the Supreme Court uses the following language: “Suppose, however, the exceptions to the judgment are sufficient to raise the questions which the defendants desire to present for decision, still the court would feel constrained to affirm the judgment upon the ground that the Supreme Court of the State have decided in an analogous case that the corporate authorities of the city had authority under the charter of the city to make the order for the destruction of the liquors, and to give the pledge for payment, and that the defendants are responsible for the value of the liquors destroyed — 215 — under that order. State courts certainly have a right to expound the statutes of the State, and, having done so, those statutes, with the interpretation given to them by the highest court of the State, become the rules of decision in the federal courts.” It is obvious from this extract from the opinion of the Supreme Court that the opinion and judgment of this court was followed, without any independent investigation, as a correct interpretation of the statute of the State, and its decision adds nothing, therefore, to the authority of Jones v. City of Richmond. In Jones v. City of Richmond, supra, it was contended for the city, “that the corporation was not liable on two grounds; First, because the destruction of these stores was the result of that urgent necessity which on common law principles deprive the sufferer of indemnity; and secondly, if not to be so regarded, it was an exercise of eminent domain, not pertaining to the corporation either by express or implied delegation of powers to that end, in its charter or the general laws of the State.” The court in its opinion, by Rives, J., does not discuss the first defence, but recognizing, as it would seem, the principle contended for, proceeds to maintain that whatever might be the common law rule as to indemnity from necessity for the act, yet, in the destruction of the liquor, the act itself was one of eminent domain. It quoted from the charter the provision which authorized the council of the city “to pass all by-laws, rules and regulations, which they shall deem necessary for the peace, comfort, convenience, good order, good morals, health or safety of the city, or of. the people or property therein;” also that provision prohibiting the city from “taking or using any private property for public purposes, without making to the owner or owners thereof, just compensation for the same,” and held that the city was liable under those two provisions. Referring to the provision of the charter first quoted, and — 216 — which is commonly known as the “general welfare” clause, it is said: 1 ‘It is hard to conceive of larger terms for the grant of sovereign, legislative powers to the specified end than those thus employed in the charter; and they must be taken by necessary and unavoidable intendment to comprise the power of eminent domain within those limits of prescribed jurisdiction.” No authorities are cited in support of the construction given to the charter, and the opinion recognizes that it is not sustained by the adjudged cases. The view taken by the court was that, the “general welfare” clause having conferred upon the city the power of eminent domain, there were two modes open to the council; Eirst, to direct the destruction of these stores, leaving the question of the city’s liability therefor to be afterwards litigated and determined; or secondly, assuming their liability to contract tor the values destroyed under their order,” and that, the council having adopted the latter mode, it was made a matter of contract; “In this,” sajns the opinion, “they seem to be well justified. They found themselves inhibited, by the terms of their charter, sec. 49, from ‘taking or using any private property for public purposes, without making to the owner or owners-thereof just compensation for the same.’ "We are well aware that an exception is teken inadjudged cases that such destruc tion is not within this language; but, coupled with the inherent equity of such a course, this language was persuasive to the' actual agreement for payment, and should be accepted as a probable and reasonable motive with the council.” While we recognize that one of the primary and fundamen- - tal capacities of a corporation is “to contract and to be contracted with,” we find ourselves wholly unable to concur in the view takeD by this court in Jones' Case, that the charter of the city of Richmond in force April .2, 1865, conferred upon the council of the city, the power and authority, in the exercise of eminent domain, to direct the destruction of the plaintiff’s liquor, and bind the city by contract, or otherwise, to pay for it. — 217 — Judge Dillon, in his work on Hun. Corporations, in a note to see. 443, wherein the extent of the power of municipal corporations to make contracts is discussed, after citing numerous authorities in support of the view taken in the text, reviews the decision of this court in Jones v. The City, supra, and says: ‘Upon the general principles of construction, the author doubts whether the order for the destruction of the liquors was within the scope of the corporate powers of the city.” Referring in this note to the decision of the Supreme Court of the United States in Smith’s case, supra, this author says that the Supreme Court of the United States followed, without examination into its correctness, the exposition of the charter given by the State Court in Jones v. Richmond, supra, and refers to secs. 89, 90, and 91 of his work, where the rules of construction of charters of municipal corporations are discussed, and the adjudicated cases are cited. In section 89 he says: “It is the general and undisputed proposition of law that a municipal corporation possesses and exercises the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared ojects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts-against the corporation, and the power is denied.” This rule is recognized in a great number cf authorities cited, though stated in some of them in different form, but to the same effect. The common law principle upon which the city relies in the case before us as giving the council, or any citizen, authority to destroy the liquors for the public good or the public safety, with exemption from liability, is not controverted on behalf of the plaintiff in error. It is the contention of his learned counsel that the liquor was destroyed in the exercise of the — 218 — right of eminent domain in aid of the police power of the city, and therefore the city is bound to pay its value. He does not claim that the requisite authority in the council was conferred in express terms in the charter, but by implication or intendment, under the rules of construction applicable. The charter of the city of Richmond, in force April 2, 1865, contains the following provision, not usually found in such charters, viz: “Sec. 97. This act shall be construed in relation to the powers conferred upon the city, as a remedial statute in favor of the city. ’ ’ This provision of the charter seems to be greatly relied upon by plaintiff in error, and without doubt changes the rule of construction. The charters of municipal corporations are ordinarily to be strictly construed. By virtue of the provision under consideration the charter of the city of Richmond is to be construed liberally. It is, however, but a rule of construction. It is designed to ascertain the extent of the powers granted, and is in no sense in itself an independent grant or source of power. Where a doubt exists, as to whether or not a municipal corporation may exercise a particular power, that doubt must, under the rule requiring a strict construction of such instrument, be solved by denying the existence of the power, — -see City of Winchester v. Redmond, 93 Va. 711— while under a rule requiring a liberal construction, such doubt would be solved in favor of the existence of the power; but it still remains that, in respect to the charter of Richmond, as of all other municipal charters, the power claimed must be conferred either in express terms, or by fair construction of, or inference from, the express grant of powers contained in the charter, and will not be presumed or assumed to exist. No reference to this provision is made in the case of Jones v. The City of Richmond, supra, and presumably it was not relied on in that case. — 219 — The right to appropriate private property to public use lies dormant in the State, until legislative action is had pointing out the occasions, the modes, conditions, and agencies for its appropriation. It cannot be presumed that any corporation has authority to exercise the right of eminent domain until the grant is shown. Cooley’s Const. Lim. (4th Ed.), p. 657, and authorities cited in note 1. Seciion 49 of the charter of Richmond city, from -which the opinion in Jones v. City of Richmond, supra, quotes the provision relative to taking private property for public uses, &c., is as follows: “The council shall not take or use private property for streets or other public purpose, without making to the owner or owners thereof, just compensation for the same. Butin all cases where the said city cannot by agreement obtain title to the ground necessary for such purposes, it shall be lawful for the city to apply to and obtain from the court of the county of Henrico, or the Circuit Court thereof, if the subject proposed to be condemned lies in said county, or to the court of Hustings held by the judge thereof, or the Circuit Court of the city, if the subject lies within the city, for authority to condemn the same, which shall be applied for and proceeded with as provided by law. ’ ’ This is the only provision in the charter conferring upon the city the power of eminent domain. The pow er is here granted for a certain and well defined purpose, and is to be exercised under prescribed conditions, viz: when the city needs “ground for the purpose of opening or extending its streets,” or for other public purposes, and is unable to acquire title to it by agreement with the owner. In construing statutes the legislative intent is to be looked to, and it would therefore seem an irresistible conclusion that if it had been the intention of the Legislature to confer upon the city of Richmond, by its charter enacted March 18, 1861, and in force April 2, 1865, the power to exercise the right of — 220 — eminent domain in the taking or destruction of any property for- public uses other than land, it would have been conferred in terms as explicit and as well defined as the power to take land for the uses ol the city is conferred in sec. 49 of the charter. Certain it is, that that section was never intended to apply to the destruction of liquor. In. City of Winchester v. Redmond, supra, it was held that, in the absence of express authority by its charter or by general law, the council of the city of Winchester had no authority to offer a reward for the detection of criminals; that authority to do so cannot be implied from the “general welfare” clause of its charter. It was said by Riely, J., who delivered the opinion of the court in that case, when referring to the “general welfare” clause in the charter of Winchester, which is almost in the very words of that clause in the charter of Richmond: “This language, though very broad, is yet not without its proper limitation. It is to be construed with reference to the object contemplated by the State in the grant of the charter, and the extent of the power it confers is to be measured and limited by the purposes for which the corporation was created. A municipal corporation is a local and subordinate government, created.by the sovereign authority of the State, primarily to regulate and administer the local and internal affairs of the city or town incorporated, in contradistinction to those matters which are common to and concern the people at large of the State. And it is only in regard to the local and internal affairs of the city that its council, unless expressly authorized, has the right to legislate. ” . It was said by Staples, J., in Burch v. Hardwicke, 30 Gratt. 34; “When the mob rages in the streets, when the incendiary and the assassin are at work, they do not offend against the city, but against the State.”- Again, “The administration of justice, the preservation of public peace, and the like, although confided to local agencies, are esentially — 221 — matters of public concern, while the enforcement of municipal by-laws, the establishment of gas-works, of water-works, the construction of sewers, and the like, are matters which pertain to the municipality, as distinguished from the State at large. ' Had the liquors in the city been destroyed by authority of the State to keep them out of the hands of the invading army, no recovery of its value could have been had by its owners, but the resolutions of the council clearly show that the liquors were ordered to be destroyed in anticipation of riot, lawlessness, and the mob, the suppression of which pertains to the sovereign power of the State, though confided to local agencies, the officers of the city. Under these circumstances and surroundings the council of the city undertake the destruction of all liquors within the limits of the city, and to pledge tüe faith of the city to pay for them. The power to do this, is not, in our opinion, necessarily or fairly implied in any express power granted to the city, and its possession was not indispensable to the performance of its corporate duties, or the accomplishment of the purposes of its incorporation, whether the provisions of its charter be construed liberally, or according to the general rules of construction applicable to such statutes. Counsel for plaintiff in error brings to our attention an act of the Legislature passed February 12, 1863 (Acts 1862-33, p. 106), which it is claimed escaped the attention of the court and counsel in the Jones case, and it is contended that this act conferred upon the city council of Richmond authority to do exactly what it did on the 2d of April, 1865. The title of the act is: “An act to enlarge the powers of the council of the city of Richmond.” The act provides that the council of the city be and the same is hereby authorized to suppress riots, and unlawful assemblies in the said city; to suppress gaming and gambling houses, tippling, and to prevent and regulate the sale of spirit — 222 — uous and fermented liquors within the said city, and around the same to the boundaries within which the jurisdiction of its corporation courts or officers of police extends in criminal cases; that for the purpose of executing the powers and authority thereby vested in said council, the council might enact ordinances and impose penalties for the violation thereof, by fine and imprisonment; might authorize ánd empower the proper officers and police of the city to seize such liquors, sold or kept for sale, for the use of the city, and shut up the houses in which such liquors are kept, &c.; and that the officers and police of the city should have the same powers and authority in discharging their duties under such ordinances as State officers have in cases of breach of the peace. Section 2 confers authority upon the council to establish armed police and appoint officers thereof, &c. The prime object of this statute, and its legal force and effect, were to enlarge the police power of the city, and to extend this power beyond the limits of the city to the limit of the city’s criminal jurisdiction, and for a specific purpose, viz: “to suppress gaming and gambling houses, tippling houses and such like.” There is, neither in express terms nor by fair and reasonable construction, conferred upon the council of the city by this act, the power to destroy the property of its citizens and bind the city to pay for it. The taking and holding liquors for the use of the city, authorized by the act, was clearly a part of the penalty authorized to be imposed for the violation of the laws or ordinances regulating the sale of liquors or prohibiting gambling houses, tippling houses, and the like. Two adjudicate 1 cases in point are cited in support of the position that the power of eminent domain may be exercised in aid of the police power; the one is Dingley v. City of Boston, 100 Mass. 544; and the other Sweet v. Rachel, 159 U. S. 396; but both of these cases arose in the State of Massachusetts, where there is a statutory system authorizing and regu — 223 — lating the exercise of eminent domain in aid of the police power. We have no such statutes in Virginia. Moreover, if such were the case, there could be no exercise of the right of eminent domain in aid of the police power, unless the power of eminent domain was conferred upon the city by its charter or the general statutes of the State. Our view is that the right of eminent domain was not so conferred upon the city by its charter or general statutes as to authorize it to take or destroy the liquors within its limits on April 2, 1865, in aid of the police power or otherwise, and being without this power the promise to pay was ultra vires, and therefore void. Against the liabilty of the city in the case at bar, the authorities are numerous, and we may say the line unbroken, except bj the decision in the Jones case — a decision founded upon a construction of the charter of the city unsustained by any authority cited. Among the authorities to which we refer are the following: 1 Dil. Mun. Cor. (3d ed.), secs. 89, 90, and 91, and cases cited; Cooley’s Con. Lim. (6th Ed.). 231-2, and cases cited; Republica v. Sparhawk, 1 Dal. 357; Coats v. The Mayor, &c., 7 Cowan 585; Sedgwick’s Con. & Stat. Law (2d Ed.) 434; Parham v. The Justices, 9 Geo. 341; Print Works v. Lawrenee, 23 N. J. Law, 615; Mayor v. Ray, 19 Wall. 468; Mayor v. Lord, 18 Wend. 126; People, &c. v. Common Council, 76 N. Y. 361; Smith v. Newburgh, 77 N. Y. 136; Ravernna v. Penn. Co. 45 Ohio St. 118; Henke v. McCord, 55 Iowa 381; Keller v. Corpus Christi, 50 Tex. 614 and 629; Russell v. Mayor, 2 Denio 461; City of Fort Worth v. Crawford, 64 Tex. 202; Summerville v. Dickerman, 127 Mass. 272; Eufaula v. McNab, 67 Ala. 590; McDonald v. Redwing, 13 Minn. 38-9; Dunbar v. Alcade, 1 Cal 355-6 and 358; Taylor v. Nashville, &c., R. R. Co , 6 Coldwell 646; Field v. City of Des Moines, 18 Amer. R. 46; Taylor v. Inhabitants, &c., 8 Metcalf 465; Harrison v. Wisdom et als, 7 Heisk. 99; Bowditch v. Boston, 101 U. S. 19, 20; United States v. Pac. R. Co., 120 U. S. 227, 234. — 224 — As we cannot concur in the construction of the charter of Richmond given in Jones’ case, and are unwilling to disagree with the unbroken line of authorities cited, the judgment of the court below in the case at bar must be affirmed. Affirmed.