USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 11
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learned Justice, who finally appealed to them for sympathy. He protested that he had the utinost confidence in each of thiem as lawyers, "but what am I to do?" he said. "You attorneys differ so widely about the law and we have not the books that each of you claim settles the case. So how am I to decide it? If we had the books, there would be no trouble, as each of you claim, but wliat an I to do without these books?" Show, who was always equal to any emergency (especially before a Justice of the Peace), deliberately rose and said: "Your Honor, I fully appreciate the dilemma in which we are placed, but to the legal mind there is an easy way out of it. Mr. Estis will not deny this legal prop- osition contained in the books cited by nie, as well as in his own, to-wit: That in the trial of any case the best evidence must be first used, but when the best evidence can't be obtained, the next best evidence must be resorted to. Does the gentleman deny this?" Estis remarked that this was the only sound legal proposition that the gentleman had presented before His Honor since the trial commenced.
Show knew he had him then and rose and said, "Your Honor, I congratulate you on the easy way out of all this seemning perplexity. Mr. Estis admits the soundness of the legal proposition I have presented. He could not do otherwise. Now, your Honor, as the books are the best evidence of what they contain, but as the books cannot be produced, we must resort to the next best evidence, that is, proof of what the books contain. Your Honor, I am ready as a lawyer to testify. Swear me!" Joe bolted for the door, mounted his borrowed horse and rode hin to death trying to catch the south-bound stage coach, left the country, quit the practice, and lost his health trying to regulate a district school in Texas. He never recovered from the shock of Show's logic. Show moved to Eureka Springs and raised "Cain" generally down there-joined the "W. C. T. U., " but the water was too thin for liis blood and he got out of the whole dilemma by dying.
I learn that my old friend, Judge Elijalı H. Norton, is to write on "Early Practice in the Platte Purchase." I knew the Judge when he was "riding the circuit" as Circuit Judge up in the Platte Purchase. He traveled horseback and his saddle skirts were longer than his stirrups, so Jim Craig used to say. Jim Craig used to tell many jokes on the Judge, one of which I will repeat, for I feel certain Judge Norton's modesty will prevent his referring to it. I wish Craig were alive to tell and embellish it. Up in that part of Missouri some of the streams are quite wide, not deep but a little murky, so that the bot- tom is not easily seen when the water is no more than a foot deep. The Judge in riding from one court to another in those days, had the usual number of lawyers on the circuit with him. Jim Craig said that the Judge often lagged behind so as to be alone, that "he might think up some variation in his next charge to the Grand Jury." O11 one occasion when the Judge had fallen some distance behind, Craig and some half dozen other lawyers came to one of those streams and in crossing over took their coats and vests off and were in the act of putting them on again when the Judge came in sight. As he rode up to the further bank Jim called to him, saying, "Norton, your horse is pretty tall and it may not swim him, but you had better do as we have done, and then you will not get wet; just take off your clothes and hold them up and you will cross over safely. We will ride on." Craig said they went a short distance and watched the Judge. He dismounted and dis- robed, got back upon his tall horse, with his clothes in a bundle on the pommel of his saddle, ready to hold them up higher when necessary, and rode carefully across, but the water was not knee deep to his horse. By the time the Judge re-made his toilet, Craig was far enough ahead to insure his safety.
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If the Judge is jealous of this trespass on his territory, tell him that I consent that this joke may be tacked onto the tail end of his piece.
Yes, "riding the circuit" has passed away, and few, very few, of these old lawyers remain.
" Still o'er these scenes my memory wakes, And fondly broods with miser care;
Time but the impression deeper makes, As streams their channels deeper wear."
Springfield, Mo., December, 1897.
MUNICIPAL LAW IN MISSOURI.
BY W. C. MARSHALL, CITY COUNSELLOR OF ST. LOUIS.
A BRIEF reference to the origin, history and development of cities, is necessary to a correct understanding of the law applicable to municipalities. The body of the laws of Missouri is taken from the common law of England as it was prior to the fourth year of the reign of James I. and fromn statutes which are of a general nature, not local to that Kingdom. (Rev. Stats. Mo. 1889, Sec. 6561) .
The civil divisions of England were established by King Alfred into:
1. Counties. 2. Hundreds. 3. Tithings or Towns.
An indefinite number of hundreds made up a parish (as it was called under the eccle- siastical reign), or county (as it was called in Saxon), or shire, as it was sometimes called. The hundreds, as the name indicates, were composed of a hundred families, or ten times ten families each, and the tithings or towns comprised ten families. This idea of the sub- division of the civil power was borrowed from Germany and Normandy. The purpose was, first, to bind the ten families into one, and thereby make each a surety to the King for the good behavior of the other, and to be responsible for its own disorders; and second, to facilitate the collection of the tithes, whichi was a tax in kind, of one-tenth of the crops raised by the people. Each division had its own chief or ruler and exercised limited powers of government. Cities or towns were sometimes called counties corporate, and, out of special grace and favor of the Kings, were granted the privilege of being counties to themselves, to be governed by their own Sheriffs or other magistrates, so that no officers of the county at large had any power to intermeddle therein. Such was the organization of London, York, Bristol, Norwich, Coventry and many others. The original charters of the American Colonies were based upon the same principles. These charters were revocable at any time, by the Crown, and the old charter of London, granted by Henry I. in 1100, was taken away by quo warranto in 1683, the Judges yielding to the will of the King, notwith- standing no legal grounds therefor were alleged or proved. About eighty other municipal charters in England were likewise taken away about the same time. That of Massachusetts was taken away in 1684, and those of Rhode Island and Connecticut in 1687. The charters of Massachusetts, Rhode Island and Connecticut were restored, as a result of the English Revolution, in 1688, but those of London and the eighty other municipal corporations were not fully restored until the "Municipal Corporations Reforin Act " was passed in the reign of William IV.
The divisions of civil government in the United States are radically different and pro- ceed upon entirely different principles. With us the powers of the Federal Government are limited and delegated, whilst those of the States are limited only by the will of the people. The powers of the cities are derived from the States that created them, and are such as are delegated or are incident and necessary to the power delegated, and within their scope are
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as full as the power of the State, and, in fact, are the powers of the State exercised by the cities under the express authority of the State. Our counties are also political subdivisions of the State.
The distinguishing differences between our government and that of England are, first, in England, all power is centered in the King, and is by him delegated but never parted with, while with us all power is vested in the people, and every form or character of gov- ernment is by the consent of the people, the Federal, State, county and city organizations being mere agencies for the performance of the people's wishes and the transaction of the people's business, and may be changed at the pleasure of the people; second, in England, the counties, counties corporate and cities exercise acts of government but not of sover- eignty, whilst with us each political division or subdivision is sovereign within the scope and limits of its powers; third, in England, counties had no power of taxation for local purposes and hence no revenues of their own (the tithes belonging to the Crown), and the title to the highways and all other property in the county being in the King, the counties were not subject to suit in reference to county management, as that would be an indirect recovery against the King, who could do no wrong, while the cities were liable to private actions for negligence, because their charters were usually granted for business purposes and for the private advantage of the favored few to whom the charters were granted and were not for the benefit of the whole people, and it was generally provided in such charters, as a burden linked to the benefit, that the city should maintain the King's highways and manage the King's property, and hence the practice grew up in courts of allowing suits against the cities.
In the United States we proceed upon a different theory. In most of the New Eng- land States the courts hold that their cities exercise governmental powers only, and have no business powers or resultant responsibilities unless expressly made so liable by their charters. In the Middle and Western States, however, the law is broadly stated to be that cities have a dual capacity: First, governmental; second, business. For acts done in their governmental capacity, there is no liability, but for negligence in the transaction of their business powers, they are liable in the same manner as private corporations or indi- viduals. The rule followed in the Eastern States is logically in harmony with the history and formation of cities, whilst that followed in the Middle and Western States rests upon judicial precedent, which has grown up from a failure to distinguish between the history, organization and liability of cities in England, and the structure, powers and responsibilities of cities in the United States, and sprang from following English cases, without noting the reasons for those decisions and their inapplicability to our conditions and forin of govern- ment. The results are incongruous and irreconcilable and present some queer contradic- tions. Missouri follows the rule of the Middle and Western States, and the purpose of this article is to call attention to a few of the results and consequences in this State.
In Murtaugh vs. St. Louis, 44 Mo., 479, the plaintiff sued the city for injuries caused by the negligence of the hospital officials while treating him, a charity patient, at the City Hospital. The Court held that, "where the officer or servant of the municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from tlie negligence or mesfeasance of such officer or servant, the corporation is liable, as in the case of private corporations or parties; but when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, then the cor-
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poration is not liable for the consequences of such acts or omissions on the part of its officers and servants," and the Court referred to cases where the same rule obtained in New York, Virginia, California, Alabama, Louisiana and Kentucky, and accordingly con- cluded that as the hospital was maintained at public expense (and not for the private profit of the city) in the exercise of its governmental powers, for the good of the public, the city was not liable in the action.
This case follows the letter, spirit and logic of the rule of municipal liability.
Armstrong vs. the City of Brunswick, 79 Mo., 319, was a suit for damages to the hotel of the plaintiff, on the ground that the city permitted the owner of lots adjoining plain- tiff's hotel to use them for pig-pens, thereby creating a nuisance and impairing plaintiff's enjoyment of his premises. It sought to hold the city liable, because, under its charter, it had the power to abate nuisances, and had not exercised such power. The Court held that the power to abate nuisances is a police power, conferred upon a city for public good, and not for private advantage, and hence the city was not liable for a failure to exercise this governmental power. Murtaugh vs. St. Louis is cited, approved and followed.
Reardon vs. St. Louis County, 36 Mo., 555, was an action for damages for the death of plaintiff's husband, caused by falling off a defective bridge on a county road. The county was held not liable. The distinction between governmental duties or powers of counties, and powers conferred for their own benefit, is strikingly pointed out, and the cases decided in the New England States are reviewed and shown to be authority for a re- covery in such cases only where the action is expressly given by statute. It is well here to note that under the law as it then was (and now is), the county had a right to levy a tax to raise money to keep the roads in repair, just as cities now have.
Heller vs. Sedalia, 53 Mo., 159, was a suit for damages for the negligence of the fire department in failing to extinguish a fire in the plaintiff's brewery. The Court held that the plaintiff was not entitled to recover, saying: "The creation of the fire department was not for the peculiar benefit of the corporation, but for the public. The officers of the de- partment, although appointed by the city, are public officers, and not the agents of the city in the sense that renders the city liable for their acts or omissions of duty."
McKenna vs. St. Louis, 6 Mo. A., 320, was an action for damages for the death of the plaintiff's son, by being run over and killed by a fire engine on its way to a fire. The Court held that plaintiff was not entitled to recover, saying: The fire department was maintained for public good, and hence the city was not liable for negligence in its manage- inent, nor was it liable for negligence "of officers charged with the public health, the estab- lishing of regulations for the suppression of vice, and other matters of public concern in which all people have a common interest, which it is the chief end of every good government to protect."
Hannon vs. St. Louis County, 62 Mo., 313, was a case where the county was sued for the death of plaintiff's son, caused by the caving of an embankment of a ditch which had been dug by a contractor with the county for the laying of water pipes to carry water from the city's water inains to the county's insane asylum. The deceased was employed by the contractor and was working in the ditch when the sides caved in fromn not being properly shored. A demurrer to the petition on the ground that "the county is a political subdivi- sion of the State of Missouri, and not a body corporate, either public or municipal, liable for the laches or misconduct of its servants or employes," was sustained by the lower Court. The Supreme Court reversed the judgment. The case is interesting because the
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Court admitted that "towns are involuntary territorial and political divisions of the State like counties, established for purposes of government and municipal regulation." A similar definition is given of counties, and also says that it was not intended "to question the cor- rectness of the proposition, so generally concurred in elsewhere, asserted in Reardon vs. St. Louis County (36 Mo., 555), 'that quasi corporations, created by the Legislature for the purpose of public policy, are not responsible for the neglect of duties enjoined on them, unless the action is given by statute,' yet the county was held liable because the laying of water pipe to furnish water to an asylum that was maintained in a governmental capacity, for the good of the people and not for private gain or profit, was not a duty enjoined on the county, but was a duty (public) voluntarily assumed (but not for private gain or profit) , and hence the county was liable for the negligence of its agents."
Thus a distinction is drawn between public, governmental duties enjoined and those assumed.
It might well be said that no governmental duty is enjoined upon a county or city to maintain a hospital or a fire or police department, any more than it is enjoined to have an insane asylum, yet if they are maintained it is in a governmental capacity, for public good at great public expense, and in no sense for private profit, and hence, logically and upon the recognized and admitted distinctions as to liability, it is wholly immaterial whether the duty is enjoined or assumed. In any event it is for public good and the city (or county) is not liable. It is confidently believed that this case will not be adhered to if the question again comes before the Supreme Court.
In Kiley vs. Kansas City, 87 Mo., 103, it appeared that two or three months before the injury complained of, a fire had occurred on private property, but on the line of the street. The brick walls of the burnt houses were left standing and were so unstable as to be dangerous to persons passing on the sidewalk and also to thie occupants of a small house on the adjoining lot. The walls fell upon the house and into the street and killed plaintiff's daughter, who was visiting the house. The Court held that it was the duty of the city to keep its streets safe for persons using the streets, as travelers, but as the plain- tiff's daughter was not killed while on the street as a traveler, the city was not liable, not- withstanding under its police powers it could have (but was not obliged to), prosecuted the owner of the unsafe walls and compel him to remove them. Murtaugh vs. St. Louis, and Armstrong vs. Brunswick were cited and followed in this case.
Ulrich vs. St. Louis, 112 Mo., 138, was a case where a prisoner in the work-house of the city, sued the city for damnages caused by being kicked by a vicious and dangerous inule owned and used by the city at the work-house. The Court reaffirmed Murtaugh vs. St. Louis, Armstrong vs. Brunswick, and Kiley vs. Kansas City, and hield that the work- house was an institution maintained by the city in its governmental capacity, and lience, the city was not liable for the negligent acts of omission or commission of the officers and agents of the city intrusted with its management.
Carrington vs. St. Louis, 89 Mo., 208, was a case for damages received by plaintiff falling against iron trap doors of a cellar-way in the sidewalk, opening into a building used and occupied by the Police Commissioners as a police station. A member of the police department had opened the doors, painted them, propped them up with a stick and left them to dry. 'The lower Court instructed that the policeman was not an agent of the city and that his negligence was not the negligence of the city, but left it to the jury to find whether the dangerous condition of the sidewalk and cellar-way was known to the city, or
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might have been known to it in time to make the same safe. The Supreme Court held that tlie case was properly submitted to the jury on the issue. But the Court analyzed the act creating the Board of Police Commissioners to determine whether the policeman was an agent of the city so as to bind the city for his negligence, and whether his knowledge of the dangerous condition of the sidewalk, was the knowledge of or notice to the city. After calling attention to Section 33 of the Police Act, which declares that members of the police force of St. Louis shall be deemed and taken in all courts to be city officers as well as State officers, the Court held that although the policeman was a city officer, yet the city was not liable for his negligent acts because the police department was created for public good and not for private corporate advantage, and hence the city was not liable under the rules laid down in Murtaugh vs. St. Louis, 44 Mo., 479; Armstrong vs. Brunswick, 79 Mo., 319, and Kiley vs. Kansas City, 87 Mo., 103.
Still the Court said that the city was bound to keep its streets in a reasonably safe con- dition for persons traveling thereon, it was liable if it neglected to do so, and that the city was liable for the negligent use of its own property the same as private corporations, and that though the property in this case was a police station, yet it was built at the city's ex- pense and hence was the city's property, and then the conclusion is stated as follows: "We conclude that as to the act in question, Batte (the policeman) was the officer and agent of the city, and that his knowledge of the condition of the trap-door was notice to and knowledge thereof on the part of the city."
This case is hard to understand. The police department was created for public good, and the city is therefore not responsible for its negligence. The city is expressly forbidden by the act creating the police to liave a police force of its own. It has no voice in the em- ployment or management of the force. It is required to pay the expenses of keeping up the force, including the furnishing of station houses, but it has no control over such sta- tions. But the city must keep its streets in safe condition and is responsible for the negli- gent use of its own property. Hence the knowledge of the policeman is notice to and the knowledge of the city and the city is liable. The city owns the building, because it was required to pay for it. Granted. But it has no control over it and is forbidden to interfere
with its management. Yet it is liable for its negligent use! Again: The policeman is a city officer and agent. The city lias no voice in his appointment nor any control over him. The police department is maintained for public good and hence the city is not liable for its negligence. Yet his knowledge of his negligent act is the knowledge of the city. The city is bound to keep the streets in safe condition and is liable if it knew the street was out of condition or could have known it. The city liad no knowledge in this case nor had the condition existed long enough to charge it with notice. Yet though it was not liable for the policeman's negligent act in creating a dangerous condition, and though it had no con- trol over him or the police station, still the knowledge of the policeman was the knowledge of the city, although the policeman never notified any city officer and could not be compelled by the city to notify it. Or otherwise stated, the city is not liable for the negligent act of the policeman, but it is liable because the policeman (over whom the city had no control) knew his negligence had created a dangerous condition in the sidewalk.
This case will scarcely be followed by the Supreme Court if the question ever comes before it again, but it is being constantly used in nisi prius courts to the serious detriment of the City of St. Louis, as an authority for holding that the city knew of defects in the streets because a policeman had seen them or could have seen them, notwithstanding if he
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did or could have known of them he may not have reported them to the city. In fact he never does and cannot be compelled by the city to do so. The decision is wrong and should be overruled.
Thus it may be fairly said that the Missouri courts have always recognized the dual capacity in which a city acts and have uniformly asserted the principle that when the city acts in a governmental capacity for the good of the public and not for private corporate gain, it is not liable for the negligent acts of its officers or agents; but that when it acts in its business capacity, for private corporate benefit, it is liable, as an individual or a private corporation would be. Acting under these principles it has been held that for injuries received by a patient in any of the eleemosynary institutions of the city, or from the opera- tions of a fire or police department, or from a failure to exercise any of its police powers, the city is not liable.
These principles are expressly recognized, but not applied, in Hannon vs. St. Louis County, 62 Mo., 313, and Carrington vs. St. Louis, 89 Mo., 208, but it is not believed that either of these cases were properly decided, on principle, nor that they will be adhered to by the Supreme Court when the question comes before the Court again.
There is another underlying reason why these cases ought not to be followed and can- not fairly be allowed to stand. Supplying water to patients in an insane asylum (Hannon vs. St. Louis County), or maintaining a police force, including proper station houses (Car- rington vs. St. Louis), are an expense and a benefit to the public at large, as much so as maintaining a fire department or a hospital, and if the city can be made liable for any neg- ligent act of any officer or agent in the transaction of anything incident to such public pur- poses, no city could afford to have a hospital, an insane asylum, a poor house, a work house, a fire department or a police department, but would be compelled to abandon such institu- tions.
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