Lerch v. City of Duluth

LOVELY, J. This is an appeal from an order overruling a demurrer to a complaint upon the ground that it does not state a cause of action. The material part of plaintiff’s pleading here involved discloses in brief the following facts: That he was the owner of a frame barn within the fire limits of the city of Duluth. By virtue of the ordinances of the city it was unlawful to remove such structure to another place within such limits without a permit from the city council. Such permit was duly obtained authorizing the removal to be made under the direction of the building inspector. The plaintiff relied upon this permission, and leased a lot, made contracts to effect the change, and incurred obligations therefor. Afterwards the city council “wrongfully, illegally, and without [300] any right or authority whatever” passed a resolution instructing the building inspector not to issue a permit for a period of one week; and still later, with full knowledge of what plaintiff had done in reliance upon the permit already issued, "unreasonably and arbitrarily” passed a second resolution in terms revoking and rescinding such permit, which is claimed to be an impairment of plaintiff’s vested rights, and a destruction and confiscation of his property interests. It is also further alleged that defendant enforced such resolution, and prevented the removal of the barn, resulting in plaintiff’s pecuniary injury, for which he asks judgment in a substantial sum. The cause of action thus pleaded is founded upon the theory that the resolution revoking the permit was void, and we must, therefore, assume for the purpose of this review that the acts of the council in revoking the permit to move the structure after plaintiff had accepted the benefits conferred therein and incurred expenses in reliance thereon were unauthorized .and invalid. Northwestern Tel. Exch. Co. v. City of Minneapolis, 81 Minn. 140, 83 N. W. 527, 86 N. W. 69; City of Duluth v. Duluth Tel. Co., 84 Minn. 486, 87 N. W. 1127. But it does not follow that, upon the adoption of this resolution, or an attempt to enforce the same by the agents of the city,’ the principle of respondeat superior would apply to render the city liable for the acts of its council in a suit sounding in damages. City of Kansas City v. Lemen, 6 C. C. A. 627, 57 Fed. 905. The proper and appropriate remedy was a proceeding to restrain the action of the city council from interfering with the plaintiff’s legal rights, which is the usual course adopted under such circumstances. Stevens v. City, 111 Mich. 72, 69 N. W. 227. If all that is alleged in the complaint regarding the character of defendant’s acts is true, the resolution was inoperative, and of no legal force, because it was arbitrary, rested upon no necessity, was outside the legitimate exercise of the police power or governmental functions of the common council. It was, therefore, void, and could justify neither the members of the council nor the officers of the city in attempting to enforce it; and, if they did attempt to enforce it in the name of the municipality of the city, [301] they might be restrained by injunction. Horn v. Mayor, 30 Md. 218; City v. Turner, 80 Ill. 419; City v. Louisville, 84 Ala. 127, 4 South. 626. The arbitrary resolution revoking the permit being void, any servant of the city attempting to aid in its enforcement would do so at his peril, and for any acts of his in that respect a suit for damages would undoubtedly lie against him, but against the city itself such an action would not lie, any more than for an unauthorized arrest by a police officer or other ultra vires act of one of its servants. Boehm v. Mayor, 61 Md. 259; Field v. City, 39 Iowa, 575; Calwell v. City, 51 Iowa, 687, 2 N. W. 614; Peters v. City, 40 Kan. 654, 20 Pac. 490. This principle is based upon the dictates of sound public policy, for within the scope of its proper municipal functions the governing body of the municipality has committed to it the performance of certain duties which require the exercise of judgment and discretion, and the city should not be held liable directly as a guarantor that no injury would follow from its acts in such cases. The demurrer of the city should have been sustained. Order reversed, and case remanded.