Fowle v. Common Council of Alexandria

Mr Chief Justice Marshall delivered the opinion of the Court, In Decerab'er 1796, the general assembly of Virginia passed an act entitled “an act concerning corporations,” declaring, “ that from and. after the passing thereof, the mayor5 aldermen, and commonalty of the corporate towns within the said commonwealth, and their successors should, -upon request of any person desirous thereof, grant licenses to exercise, in such town, the trade or business of an auc-. tioneer ; provided, that no such license should be granted until the person or persons requesting the same should enter into bond, with one or more sufficient sureties, payable to the mayor, aldermen, and commonalty of such corporate town, and their successors, in such penalty, and with such *404 condition; as by. the laws and ordinapces of the town shall be:rqquired> In thte year 1779 the town of Alexandria was incorporated by the name' of “ the mayor and commonalty of the town of Alexandria/’ The -corporation consisted of the mayor, recorder, aldermen, and common council jpen. The mayor, recorder, and aldermen, and.their successors, were copstituted justices of the peace, with power to appoint constables, surveyors of the streets and highways, and -to hold a .court of hustings, once in every month ; and to appoint clerks, a sergeant, and other proper officers. In the year 1800 the mayor and commonalty passed On. ordinance “ for licensing auctioneers ágreeably to an act of the general assembly, passed on the 22d of December 1796 by which it was enacted; that the' mayor and eommonalty sfyall grant to any person or-persons during .the samé, a license to exercise the trade or business of an auctioneer within the town.. Provided that no such license shall be granted until the person or persons applying shall enter into, bond, with one or more good securities, in the sum of twenty thousand dollars, payable to the mayor and con» pnalty¿ and conditioned for the payment of-the annual rent of five, hundred dollars, to the mayor and commonalty,, in. quarterly payments, for. the said office, and for the due and faithful performance of all the duties of the same ; which bond shall not become void on the first recovery, but may be put in suit and prosecuted from time to time, by, and at the costs of any person injured by a breach thereof,,until the whole penalty shall be recovered." In 1804 congress passed an act “ to amend the charter oAlexandria,” in which provision was made for the election of a common council. The judicial duties of the mayor,, recorder, and aldermen, having been transferred to the circuit court -of the United States for the county of Alexandria, it was enacted, that the common councils elected “ and their, successors shall be, and hereby are made a body politic and corporate, by the name of the common council of Alexandria,” The estate, &c. vested in the mayor and commonalty was transferred to the common council, and the nsual cor *405 poiate powers to sue and be sued, &c- to erect work-houses, &c. to provide for the police of the town, &c. were conferred on that body. They were authorised “ to appoint a superintendent of police, commissioners and surveyors of the streets, constables* collectors of the faxeé, arid all other officers vt'.ho may be deemed necessary fot ihe execution of their laws, who shall be paid for their services a reasonable compensation, and whose duties ahd powers shall be prescribed in such manner as the common council shall deem fit for carrying into execution the powers hereby granted.” The twelfth section enacts “ that so much of. any act. or acts of the general assembly of Virginia, as comes within the purview of this act, shall be, and the same is hereby repealed'. Provided, that nothing, herein contained shall be construed to impair or destroy any right or remedy which the mayor and commonalty of Alexandria now possess or enjoy, to or concerning any debts, cláims, or. demands against any pet-son or persons whatsoever, or to repeal any of the laws and ordinances of the mayor and commonalty of the said town, now in force, which are not inconsistent with the act.” In June 1817 the common council of Alexandria passed “ an act to amend the act for licensing auctioneers, and for other purposes,” in the following, words: “ be it enacted by the coinmon council of Alexandria, that every person or persons obtaining á license to exercise the business of an auctioneer within' the town of Alexandria, shall annually apply for, and obtain a renewal of his or their license, and shall also annually renew his or their bonds for the same, in the manner provided by law; and every person failing to renew such, license, and give bond annually, shall cease to: exercise the business of an auctioneer, and shall be proceeded against accordingly.” - The declaration, after reciting the act of 1796, and the several ordinances of the corporate body of the town of Alexandria, charges., that the common council of Alexandria; on the. day of ,in the year 1815, in the tovvn of Alexandria, did grant a licénse to one Philip G. Marsteller, to exercise the trade and business of an auctioneer, within the said town, for the term of one year; and at the expiration *406 of the said -year, did renew the said license to the. said Philip G; Marsteller for one other year, and did continue to renew the said license from the end of the' said last mfentioned year, from year to year; until the day of , in the year ! 8, 19, during aU which time, that is to. say, from the day of , in the year 1815, to the day of , in. the year 1819, he, the. said. Philip G. Marsteller, did exercise the trade and business of an auctioneer, in the. said town of Alexandria, under the said license and authority of the said common council, and that, during the period aforesaid, the said plaintiff delivered to him, the said Philip G. Marsteller, sundry goods, wares, and merchandize, to be sold by him at auction, in the said town of Alexandria, and that the said Philip did, from time to time, during the period he. so carried on the trade of an auctioneer, under the license aforesaid, sell at auction the said goods, &c. so delivered to him. by the plaintiff, to the amount of $1583 09, which said sum, the said Philip, though often requested, failed to pay. to the said plaintiff. The declaration then states, that a judgment was obtained against.the said Philip for the said sum, which he was totally unable to pay ; by means of which premises the plaintiff became entitled to the benefit of the bond and security, which . ought to have been taken by the common council previous to granting the said license to exercise the trade of auctioneer as aforesaid. Yet the defendants, not regarding their duty in that behalf, but contriving to deceive and injure the plaintiff, did not, and would not take any bond and security as aforesaid, from the said Philip G. Marsteller, during the time when the transáctions aforesaid took place ; but on the contrary, so carelessly, negligently, and improperly conducted themselves in the premises, that by and through the negligence, carelessness, and default of the defendants, no bond and security was taken from the said'Philip, and that the' money- due from the said Philip was wholly lost to him, the said plaintiff, to his damage $3000. To this declaration the defendants filed'a general'demurrer, and at the.same time pleaded the general issue. The counsel for the plaintiff objected to receiving at the *407 same time ¿ demurrer, and a plea to the whole declaration, but the court overruled thé objection, under the act of assembly, which is in these words: “ the plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defence.” The court, haying sustained the demurrer,, and. entered judgment for the defendants; the plaintiff has brought the cause by writ of error into this court. "The power to. license auctioneers, and to take bonds for their good behaviour in office, not being one of the incidents tó a corporation, must be conferred by an act of the legislature ; and in executing it,' the corporate body must conform to the act. The legislature of Virginia conferred this power on the mayor, aldermen, and commonalty of the several corporate towns within that commonwealth, of which Alexandria was one; “ provided that no such. license should be grantéd until the person or persons requesting the same should enter into bond, with one or more sufficient securities, payable to the mayor, aldermen, arid commonalty of such corporation.” This was a limitation on the power. Though the corporate name of Alexandria was “ the mayor and commonalty,” it is not doubted that a bond taken in pursuance of the act would have b.eeri valid. Jones, 261. In the year 1800, when the, corporation of Alexandria determined to act upon this law, ah ordinance was passed authorising “ the mayor and commonalty” to grant licenses to auctioneers, provided that no such license should be granted, until bond with sufficient sureties should be given, payable to “ the mayor and commonalty.” It may well be doubted,' whether this ordinance is sustained by the legislative act, in pursuance of which, it was made. That act authorised “ the mayor, aldermen and commonalty” to grant licenses to auctioneers, first taking bonds payable to the “ mayor, aldermen and commonalty.” The ordinance omits the “ aldermen,” both in the clause which empowers the body to grant ‘licences, and in that which names the obligees in the bond. But supposing this difficulty to be entirely removed, we *408 are next to inquire whether, the powers to grant licenses to auctioneers, and to take bonds for the performance of iheir duty, which were given by the act of 1796‘tothe mayor, aldermen and commonalty, and by the ordinance of 1800 to the mayor and commonalty, have been transferred to, and vested in the common council of Alexandria. This depends on the act of congress, passed, in 1804, “ to amend the charter of -Alexandria.” Under this instrumept, the corporate body consists of the common council alone. The mayor is separated from them, and the aldermen ard discontinued. The power of the mayor and commonalty are not transferred generally to the common council, but the powers given them are specially enumerated. We do not find, in. the enumeration, the power to grant.licenses to auctioneers.. If it could be maintained that the repealing clause does, not comprehend the act of 1796, still the'act amending the charter changes the corporate body so entirely, as to require new provisions to. enable it to execute the powers conferred by that act. The corporate body is organized anew, and does not retain those parts'which are required for the execution of the act of 1796. An enabling clause, empowering the common council to act in the particular Gase, or some general clause which might embrace the particular case, is necessary under the new organization of the corporate body. It has been already said that we find no particular provision, and the general powers granted are so limited by the language of the grant, that they cannot be fairly construed to comprehend the subject of licenses to auctioneers. It may be admitted that the ordinance of 180,0 is not repealed by the act amending the charter. But that ordinance is not adapted to the new corporate body, and could not be carried into execution by the common council, till modified; by some act of legislation. The common council took up this subject in 1817, and passed the act recited in the declaration. We are relieved from inquiring whether this act removed or could remove the difficulties which have been stated, by the circumstance that the declaration changes the nonfeasance, which is the • *409 foundation of the action, as commencing in.the year 1815. We do not think any, law then existed w(hich empowered the common council of Alexandria to license auctioneers, or to take bonds for the faithful performance of their duty. The injury alleged in the declaration, as the foundation of the action, is the omission to take the bond required by law. Now if the common council was not required or enabled by law to take a bond, the action cannot be sustained. If the declaration is to be considered as stating the cause of action to be the granting a license, without previously requiring a bond ; it will not, we think, help the casei The common council, has granted a license to carry on the trade of an auctioneer, which the law did not empower that body to grant. . Is the • town responsible for the losses sustained by individuals from the fraudulent conduct of the auctioneer? He is not the officer or agent of tho corporation, but. is understood to act for himself as entirely as a tavern keeper, or any other person, who may carry on any business under a license from the corporate body.’ Is a municipal corporation, established for the general purposes of government, with limited legislative powers, liable for losses consequent on its having misconstrued the extent. of its powers, in granting a license which it had not authority to grant, without taking that security for the conduct ofthé person obtaining the license which its own ordinances had been supposed to require, and which might protect those who tráhsácted business with the person. acting under the license ? We find no cáse in which this principle has been affirmed. That Corporations are bound by their contracts is admitted; that money corporations, or those carrying on business for themselves, are liable for torts, is well settled: but that a legislative corporation, established as a part of the government of the country is liable for losses sustained by a nonfeasance, by an omission of the corporate body to observe a law of its own, in whióh no penalty is provided, is a principle for which we can find'no precedent. We are not prepared to make one in this case. In permitting the defendant below to demur and plead to *410 the whole'declaration, the circuit court has construed the act on that subject as it has been construed by the courts of Virginia. There is nn error,.and the judgment is affirmed with costs. This cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Columbia, held in and for the county of Alexandria, and was argued by counsel; on consideration thereof, it is ordered ánd adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs.