Mayor of Hagerstown v. Dechert

Bartol, C. J., delivered the opinion of the Court. This action was instituted against the appellant, to recover damages for the destruction of the appellee’s property, situated within the limits of Hagerstown, by a tumultuous assemblage, on the 24th day of May, 1862. The decision of the case depends mainly upon the construction of the 82d Article of the Code, and involves also the question of the powers conferred on the Mayor and City Council by the charter. The Code provides, in the first section, if property in any incorporated town be destroyed by a riotous assemblage, “ the full amount of damage so done shall be recoverable by the sufferer, by a suit at law against the town within whose jurisdiction such riot or tumult occurred.” The second and third sections limit and define the liability. The second section declares that such liability shall not be incurred “unless the authorities thereof shall have had good reason to believe that such riot, or tumultuous assemblage -was about to take place, or having taken place, shall have had notice of the same in time to prevent said injury or destruction, either by its own police, or with the aid of the citizens of such town. It being the intention of this article, that no such liability shall devolve on such town, unless the authori [382] ties having notice have also the ability of themselves, or with their own citizens, to prevent said injury.” The third section exempts the town from liability, “when .it is satisfactorily proved that the civil authorities and citizens, when called on by the civil authorities thereof, have used all reasonable diligence, and all the powers entrusted to them for the prevention or suppression of such riotous or unlawful assembly. It appears, from the uncontradicted proof in the case, that on the evening of the riot, some hours before its occurrence, the plaintiff notified the Mayor of the danger to his property, which was threatened, and claimed protection, and no steps were taken or means used by the Mayor, or any of the authorities of the town, to prevent or suppress the mob. Upon the question, whether, by reasonable diligence on the part of the town authorities, with the aid of the citizens, the mob might have been prevented, and the plaintiff’s property saved from destruction, the evidence was conflicting. But that question was submitted to the jury, and found by them against the defendant. The position taken on behalf of the appellant, as the ground of exemption from liability, is that neither the Mayor nor the other authorities of the town had any lawful power to create or employ a police force for the purpose of preventing or suppressing riots, nor any power to call on the citizens for aid for that purpose; and it is contended that unless such powers have been conferred on the corporate authorities by the charter, no liability can devolve on the town under the provisions of the Code. Assuming this to be the true construction of the Code, but without so deciding, for it is a point upon which the judges do not agree in opinion. But conceding, for the purposes of this case, that the appellant’s construction is correct, we are all of opinion that, by the Acts of Assembly incorporating the town, full and ample powers were conferred upon the Mayor to employ means for the preservation.of the peace of the town, and to call on the citizens to aid in the prevention and suppression of the riot. [383] The Act of incorporation, Code, Vol. 2, Art. 21, sec. 137, provides that “ the Mayor, in virtue of his office, shall have and exercise all the jurisdiction and powers of a Justice of the Peace, and shall be entitled to the same fee.” This provision was enacted in the original charter of the town, 1847, ch. 3 98, and it is argued that it was abrogated and annulled by the Constitution of 1851; and when reenacted and incorporated in the Code in 1860, it was altogether inoperative and void, because, as it is supposed, it was inconsistent with, and in violation of the Constitution of 1851, then in force. The provisions of the Constitution, to which we have been referred, are Art. 4, sec. 1, which defined the officers in whom the judicial power of the State was vested, and sec. 19 of the same Article, prescribing the manner in which Justices of the Peace should be elected and qualified. It is very clear that, after the adoption of that Constitution, the Legislature had no power to appoint a Justice of the Peace, nor could they vest judicial power in any other officer except such as rvere enumerated in the first section of the fourth Article of the Constitution. When that Constitution was adopted, therefore, it stripped the Mayor of the judicial power or jurisdiction appertaining to the office of a Justice of the Peace, which had been conferred upon him by the Act of 1847; and it is equally clear, that such jurisdiction could not, constitutionally, be conferred upon him by the Code in 1860. But it by no means follows, that the 137th section of the Code was altogether inoperative and void. That section did not attempt to make the Mayor a Justice of the Peace, but to confer upon him certain powers as Mayor. It, in terms, gave him as Mayor, “all the jurisdiction and powers of a Justice of the Peace.” Now', some of the powers exercised by a Justice of the Peace, are judicial; he has jurisdiction to hear and decide cases, civil and criminal. So far as such jurisdiction is concerned, the 137th section of the Code is inoperative. But, in addition to the judicial functions of a Justice of the Peace, [384] he has important police powers as a Conservator of the Peace, not in any respect judicial in their nature, and which it was entirely competent for the Legislature to confer upon the Mayor of Hagerstown, and most essential for him to possess in order to enable him to perform his duties as Mayor, in the preservation of the peace of the town, and for the protection of the property of the citizens. Such power, in our opinion, were conferred on the Mayor by section 137, Article 21, of the Code. To that extent it is constitutional and valid, while it is inoperative only so far as it might be construed as vesting in him judicial power. A Statute may be good in part while other parts are invalid. If a portion be unconstitutional, the Court is not authorized, for that reason, to declare the whole void. State vs. Davis, 7 Md., 151. In Commonwealth vs. Hitchings, 5 Gray, 482, where the same rule of construction was adopted, the Court said: “ The Constitutional and the unconstitutional provision may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is, not whether they are contained in the same section, for the distribution into sections is purely artificial; but, whether they are essentially and inseparably connected in substance.” We adopt that as a correct exposition of the law governing the Court in the construction of Statutes. The jurisdiction of a Justice of the Peace as a judicial officer, and the powers belonging to him as a conservator of the peace, are, in their nature, distinct and independent of each other; and, while the former are not vested in the Mayor, the law has clothed him with the latter. As a conservator of the peace, he had full authority to call on the citizens to aid in the prevention and suppression of the riot, and their legal duty was to obey the call. “ The general duty of the conservators of the peace, by the common law, is to employ their own and to command the help of others to arrest and pacify all such, who, in their pres [385] ence, and within their jurisdiction and limits, shall go about to break the peace.” 3 Burn’s Jus., 4. The powers and duties of conservators of the peace, in the prevention and suppression of'a riot, are fully stated in the authorities cited in the appellee’s brief, and we refer to them without repeating them here. If it be conceded that the construction of the 82d Article of the Code contended for by the appellant is correct, it seems to us clear that the town cannot escape from responsibility for want of requisite power in the Mayor to act in the premises; and there was no error in granting the plaintiff’s prayers by reason of their assuming the existence of the power, or in sustaining the demurrers to the second, third, fourth and fifth pleas. We have discovered no error in granting the prayers of the appellee ; they placed the law of the case fairly before the jury ' and gave to the defendants the benefit of every defence to which they were entitled under the Code. For the reasons before stated, the first, second and fourth prayers of the defendants were properly rejected. Their third prayer was correct, and might have been granted with propriety, but its refusal is no ground for reversal, as the same proposition was contained in the plaintiff’s prayers, which had been granted. In the course of the trial four exceptions were taken by the appellant to rulings of the Circuit Court, on questions of evidence, which remain to be disposed of. The evidence contained in the first and second bills of exceptions was admissible, for the purpose of proving the want of reasonable diligence on the part of the Mayor for the prevention of the riot after he was notified of the danger; it also tended to show his indifferene to the discharge of his official duty, and his sympathy with the spirit and temper of the mob. For similar reasons, the evidence objected to in the third bill of exceptions was properly admitted, showing that Thorns386 burg, one of the members of the City Council, was present with the mob, aiding and encouraging the rioters. In an action of this kind, such testimony is admissible against the defendant. The general rule, that “ a municipal corporation is not liable for the mis-feasance or non-feasance of one 'of its officers, in respect to a duty specifically imposed by statute on the officer,” which was laid down in Martin vs. Mayor of Brooklyn, 1 Hill, 545, has no hpplication to this case. The provisions of the Code under which the suit is brought, .expressly make the corporation liable for neglect of duty on the part of the authorities or officers of the town. (Decided 12th March, 1870.) It appears, by the fourth exception, that the plaintiff was permitted to ask the witness, William Tice, who was a Justice of the Peace, residing in Hagerstown, whether the Mayor had called on him to aid, in his official capacity, in the preservation.of the peace of the town, on the occasion of the riot, and the defendant “ objected to the question, as well as any answer thereto; but the Court overruled the objection, and the defendant excepted.” We think the question was legal and pertinent. It was competent to prove a failure or omission by the Mayor to call for the aid of Tice, who, as a Justice of the Peace, might have rendered more important assistance than a mere private citizen. Such omission on the part, of the Mayor was evidence tending to prove a want of diligence in the discharge of his duty for the prevention or suppression of the riot. Finding no errors in the rulings of the Circuit Court, the judgment will be affirmed. Judgment affirmed.