Bennett v. City of New Orleans

Las», J. The defendant is sued for an act of omission, or non-feasance, in not «causing certain draining-machine, erected for public utility, to be repaired and Ikept 3k 'operation; in consequence of which neglect plaintiff alleges that his ¡premises, on which he had an iron foundry and machine-shop, were overflowed, Tiis buskess suspended, and his property damaged to the amount of eight thousand -dollars. 'The answer is a general denial, which puts at issue the law as well as the facts «of tthe pIeíbqtiff’s case. A&rdtgkg the non-feasance of defendant, and damage to plaintiff resulting 'theréfeom, vfche question presents itself: do these facts give plaintiff a right of :acfion against defendant, a municipal corporation vested with a portion of the powers of 'government, for the recovery of the damage sustained ? It seems lie be a well settled principle in respect to the jurisdiction of courts, tchat the sovereign cannot be sued without his consent, and that the principle is applicable ¡te ¡all governments, whatever may be their form. Jurisdiction implies .superiority, :smd the supreme power in a state can have no superior. 'This exemption from liability on the part of government, has been extended to unumciipal icoi]f orations, vested with, and exercising portion's of the sovereign ¡power, ¡for the reason that such corporations are considered the representatives of {the government, and that their exemption from suit is necessary to make the pre-ffogatke available to the government itself. O’Conner v. City of Pittsburg, 18 Penn. R., 187; Stewart v. City of New Orleans, 9 An., 462. The exemption, however, has been strictly construed, in regard to municipal eorporations, mud they have been held liable, for damage to property, whenever the act avsllmrizsd by them, was not warranted, by the powers vested in them by their charter, wax contrary to law, or was improperly, wantonly and maliciously done, McGarey v. City of Lafayette, 4 An., 440. Walling v. Mayor and [121] Trustees of Shreveport, 5 An. 660 ; Wilde v. City of New Orleans, 12 An., 15. It is held, that where the act done was clearly within the scope of their powers, and was properly executed, they are not liable for damage to private property. Reynolds v. Mayor and Trustees of Shreveport, 13 An., 426. Hence it results, that a municipal corporation is not liable for damage to private property, unless the act complained of was without the authority of, or against law, or was improperly or wantonly executed. Such being the rule in regard to acts of commission, it applies with much greater force to acts of omission or nonfeasance, within the discretion of the corporate authorities, and involving, as in this case, an expenditure of the corporate funds. We are therefore of opinion, that the plaintiff is without a cause of action against the defendant. The exercise of powers involving disbursements of the corporate revenues is a matter of discretion with corporate authorities, unless otherwise expressly commanded by legislative will. If the plaintiff has been damaged, it is damnum absque injuria. That municipal corporations may be sued in all matters of contract, and in cases of tort, as well as in those expressly authorised by statute, is not questioned. The exemption from suit, or non-liability for damage to private property extends to those cases in which the damage results from, or is consequent on the exercise or non-exercise of power vested in the corporation, and the power itself is legally and properly exercised, or its non-exercise is a matter of discretion. The corporation may avail itself of this exemption from suit, on the plea of the general issue, as was done in this case. Stewart v. City of New Orleans, 9 An. 463 ; Reynolds v. Shreveport, 13 An. 421. It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that there be judgment for defendant, with costs in both courts.