Imágenes de páginas

tiff's son, an infant, who was killed in one of the public streets by swine which had run him down and trampled him to death. The City of New York had enacted an ordinance prohibiting swine from running at large in the streets, with a provision for the impounding of animals so found. Notwithstanding which, the plaintiff declared, the corporation of New York, being unmindful of its undertaking, did not keep the streets free and clear from swine straying therein; whereby some swine sú suffered by the corporation to be so at large attacked, assaulted, fell upon, and mortally wounded said E. D. Levy.

Mr. Justice SANDFORD delivered an incisive opinion: The plaintiff's counsel well observed, that there was no precedent for such an action as this; and we are compelled to add, that there is no principle upon which it can be sustained. The corporation is undoubtedly vested with certain legislative powers, among which is the authority to restrain swine from running at large in the streets; and they have exercised it by enacting an ordi. nance to that effect. The idea, that because they may prohibit a nuisance, that therefore they must not only pass a prohibitory law, but must also enforce it, at the hazard of being subjected to all damages which may ensue from such nuisance, is certainly novel. The corporation of the city, in this respect, stands upon the same footing within its own jurisdiction, as the state government does in respect of the state at large. It is the duty of the government to protect and preserve the rights of the citizens of the state, both in person and property, and it should provide and enforce wholesome laws for that object. But injuries to both person and property will occur,

which no legislation can prevent, and which no system of laws can adequately redress. The government does not guaranty its citizens against all the casualties incident to humanity or to civil society; and we believe it has never been called upon to make good, by way of damages, its inability to protect against such misfortunes. There would be no end to the claims against this city and state, if such an action as this is well founded. There are innumerable illustrations of the application of the principle. It suffices to say, that no government, whether national, state or municipal, ever assumed, or was subjected to a general liability of this description.

That the enforcement of law is a governmental act is perhaps the most fundamental proposition in this branch of this subject. The rule here is so plain a deduction from the general proposition as to the irresponsibility of the government that there is no conflict in the authorities. The cases are not many; and they are all to the same effect. The enforcement of law is a duty of government, to be sure, but it is a public duty; and as a public duty it is recognized only in public law. The result is that there is no liability to suit for a failure in administration, since administration is a most patent governmental duty.

Moreover, it is of course impossible that all of the law could always be enforced at once. Indeed, that is an elementary fact in administration, not often appreciated, that in administration it is always a question for the executive department what laws shall have enforcement, what laws shall not; or at least, to the enforcement of what laws shall the government direct its best efforts and first attention, and what laws shall by that process of procedure have a secondary enforcement. At all

[ocr errors]

events the executive department should have a free hand in this matter, and it gets that freedom for the exercise of its discretion from this condition of the law.

Another instance of the application of this principle which appears from time to time in the reports may be represented by Wheeler v. Cincinnati, 19 Oh. St. 19 (1869), as well as by any other case. The plaintiff brought his action seeking to recover from the defendant the damages arising from the casual destruction of his house (situated within the limits of said city) by fire; on the ground that the defendant had failed and neg. lected to provide the necessary cisterns and suitable engines for extinguishing fires in that quarter of city in which his said house was situated, and that certain officers and agents of the fire department of said city had neglected and failed to perform their duties in regard to the extinguishing of said fire, by reason whereof said fire was not extinguished, as it otherwise might, and could have been. A demurrer to his petition, alleging these facts, was sustained by the court, and judgment rendered for the defendant, which was subsequently affirmed by the District Court, upon proceedings in error.

l'pon this case the opinion of the Court was this: The laws of this State have conferred upon its municipal corporations power to establish and organize fire companies, procure engines and other instruments necessary to extinguish fire, and preserve the buildings and property within their limits from conflagration, and to prescribe such by-laws and regulations for the government of said companies as may be deemed expedient. But the powers thus conferred are in their nature legislative and

[ocr errors][ocr errors]

The power

governmental; the extent and manner of their exercise,
within the sphere prescribed by statute, are necessarily
to be determined by the judgment and discretion of the
proper municipal authorities, and for any defect in the
execution of such powers, the corporation cannot be held
liable to individuals. Nor is it liable for a neglect of
duty on the part of fire companies, or their officers, char-
ged with the duty of extinguishing fires.
of the city over the subject is that of a delegated quasi
sovereignty, which excludes responsibility to individuals
for the neglect or nonfeasance of an officer or agent char-
ged with the performance of duties. The case differs

from that where the corporation is charged by law with
the performance of a duty purely ministerial in its char-
acter. We know of no case in which an action like the
present has been held to be maintainable.

Upon all the authorities this may be regarded as settled law, that for non feasance in matter of administration there is no liability upon the government. Why this must be so it is not difficult to see. It is obvious that the harm done is imputable to the state, incident to the unavoidable imperfections of a machinery so complicated as this system of administration. A govern

. ment which should hold itself liable for all injuries consequent upon the failure of its administration to enforce the laws could not respond long to the damages in which it would be cast in innumerable suits. The truth of the matter is that we do not conceive of this liability to be enforced by the courts, but to be redressed at the ballot.S



8 ADMINISTRATIVE.-Montreal v. Mulcair, 28 Can. Sup. 458; Delacauw v. Fosbery, 13 N. S. W. Wkly. Notes 49; Spalding v. Vilas, 161 U. S. 483; Workman v. New York, 179 U. S. 552; State v. Hill, 54 Ala. 67; Chope v. Eureka, 78 Cal. 588; Platt V. Waterbury, 72

$ 12. Responsibility of the officer.

The administration as an administration cannot be impleaded for an action done in the pursuance of the execution of the law. A late case which lays down the law with perfect discrimination is Raleigh v. Goschen [1898] 1 Ch. 73. This action was commenced against the Right Hon. George J. Goschen and five other persons described as the Lords Commissioners of the Admiralty, and Major E. Raban, described as the DirectorGeneral of Naval Works, the object of which was to establish against the Lords Commissioners and the Director-General that they were trespassers in entering upon certain land the property of Raleigh, the plaintiff, in the neighborhood of Dartmouth, to stake out ground for a naval college preliminary to process for compulsory purchase. By the defense it was submitted that the court had no jurisdiction to enter the action; that the defendants were agents of the crown; and that they were not liable to be sued in respect of acts done by them as part of the executive government on behalf of her majesty; and they submitted, as a matter of law, that the action could not be maintained.

ROMER, J., said: I will state some principles of law which I conceive govern this class of cases. Now, in the first place, inasmuch as the plaintiffs could not sue

Conn. 531; Love v. Atlanta, 95 Ga. 129; Arms v. Knoxville, 32 II. App. 604; Summers v. Daviess Co. Com'rs, 103 Ind. 262; Ogg v. Lansing, 35 Ia. 495; Brown v. Vinalhaven, 65 Me. 402; Boehm v. Mayo, 61 Md. 259; Buttrick v. Lowell, 1 Allen 172; Edes v. Boardman, 58 N. H. 580; Wild v. Paterson, 47 N. J. Law, 406; Levy v. Mayor, 1 Sandf. 465; Springfield F. & M. Ins. Co. v. Keeseville, 148 N. Y. 46; Wheeler v. Cincinnati, 19 Oh. St. 19; McDade v. Chester, 117 Pa. St. 414; Wixon v. Newport, 13 R. I. 454; Horton v. Mayor, 4 Lea, 47; Mulcairns v. Janesville, 67 Wis. 24.

« AnteriorContinuar »