District of Columbia v. Ball

22 App. D.C. 543, 1903 U.S. App. LEXIS 5557

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 4, 1903
• Docket: No. 1352
• Status: Published

Opinion

Mr. Justice. Morris

delivered the opinion of the Court:

1. We think that the so-called use plaintiff was authorized in law to use the name of the District of Columbia as the nominal plaintiff in this suit.

While the office of inspector of plumbing was created by act of Congress, and his general duties were prescribed by the same enactment, yet he was to be appointed by the commissioners, to be responsible to them, to act under their orders, and to be subject to such regulations as they should ordain. Plainly, his office is one of great responsibility, and upon the faithful performance of its duties may depend, to a very large extent, the health and welfare of the community. The subject-matter of inspection is usually hid away from the ordinary view after the conclusion of the work of construction, and defects in it can generally be detected only by those expert in such work, or by their deleterious effects upon the neighborhood and the community. Those who afterwards deal with the property, either as occupants or as purchasers, have usually no means of determining whether such work has been properly performed, for the defects are, or may be, entirely latent, and beyond the scope of ordinary observation. It is most important, therefore, that the inspector be held to a rigid accountability for the faithful performance of his duties, and that such performance be enforced by all proper and reasonable precautions.

With this result in view, and in order to secure it, the commissioners have thought proper to make the regulation, which prescribes, as already stated—

“That the inspector of plumbing shall make oath that he will faithfully perform the duties of his office, and shall, before entering upon said duties, execute a bond to the District of Columbia in the sum of $5,000, with three sureties, to be approved by the commissioners, conditioned for the faithful performance of the duties of his office, and for the benefit of all persons who may be aggrieved by his acts of neglect.”

Under this regulation it seems to us to be very plain that the official bond required of the inspector, although executed to the District of Columbia as the obligee, was intended, not alone for the protection of the District as a municipality, but likewise, and perhaps more generally and more frequently, for the protection of individuals who would have to deal with property on the faith of the due performance of his duty by the inspector, and who should suffer damage from his neglect or failure to perform such duty. While the health and welfare of the community as a whole might be largely affected by the neglect of the inspector to perform his duty, it is not apparent that in any special instance the District has any interest which could at all suffer from any such non-performance of duty. On the other hand, individuals might suffer quite frequently from official neglect of the inspector. The owner of the property might be injured by the ignorance or fraud of an incompetent plumber. Subsequent occupants and purchasers, knowing nothing of the latent defect, might be injured, or might find it necessary, as the use plaintiff in this case has found, to make large repairs in order to have the work done as it should have been done in the first instance, and as it would have been done if the inspector had performed his duty. Unless, therefore, the requirement of a bond from the inspector was for the protection of such individuals, we fail to find that there would be any great reason at all for such a requirement. We think that the plain language of the regulation made by the commissioners provides that the inspector’s bond shall be for the use and benefit of individuals aggrieved by the inspector’s neglect; and that the regulation is in effect a consent in advance to any person aggrieved to use the name of the District in a suit for his use and benefit. We see no distinction in principle between the inspector’s bond in this case and a sheriff’s bond, which, although given to the State, is liable to be put in suit in the name of the State to the use of any person aggrieved by his malfeasance or non-feasance of his official duty.

It is suggested, however, on behalf of the appellees that the regulation in question is one beyond the p«wer of the commissioners to make, and is therefore a nullity; and that therefore the bond given in pursuance of it is equally a nullity. But if the defendants, having given the bond and having procured the office of inspector for their principal on the faith of their being so bound to the District and to individuals, are not now estopped by their conduct from denying its validity, in regard to which we need express no opinion, we find no ground whatever on which to question the reasonableness and validity of the regulation. The duties of the office, as we have seen, are such as to justify the commissioners in seeking to surround them with all possible precautions. Congress, having provided for the appointment of an inspector by them, remitted the whole subject-matter to them for regulation. And it is not apparent to us why they should not have required a bond before they allowed any man to enter upon so responsible a position. It is not necessary that the requirement of a bond for the faithful performance of duty should be prescribed by statute. Private individuáis in the conduct of their private business may validly prescribe such a. requirement as a condition precedent to the appointment- of a person to a responsible office in their service; and it is not apparent why a municipality with vastly greater responsibilities, might not properly do so, when it is given authority to make all reasonable roles and regulations on the whole subject-matter. As well might it be argued that the commissioners can not prescribe an oath of office for the inspector, as that they can not prescribe a bond. The argument which would overthrow the one will overthrow the other. The act of Congress provides in terms for neither oath nor bond. Are the commissioners, therefore, when they have been given so extensive a power of regulation, to be precluded from seeking to throw any of the usual safeguards around the office of the inspector to secure the faithful performance of his duties by him ? We do not think that either reason or authority requires the denial of such power to the commissioners.

We are of opinion, therefore, that the use plaintiff in this case, if she was in fact aggrieved by any negligence of the inspector, was authorized to institute this suit on his official bond in the name of tire District.

2. But the question remains whether she has stated in her declaration a legal grievance against the inspector. In view of the admission of counsel for the appellant in open court of what was undoubtedly the fact, that the .inspector, in disconnecting the plumbing iu tbe bouses in question from the general sewerage system, did no more tban bis official duty under the order of the commissioners, rve fail to see that there is any cause of action whatever stated in the second count of the declaration. Beyond question, the demurrer was properly sustained as to that count.

3. As to the first count in the declaration, that also is open to serious criticism. While there is a recital in it, or an allegation, that the inspector neglected and failed to inspect the houses, or cause them to be inspected, and that in consequence of such failure improper connection was made of the plumbing in the houses with the general sewerage system, yet the gravamen of the charge is that the inspector wrongfully and unlawfully condemned the plumbing and severed the connection, whereby the houses -were rendered untenantable and the use plaintiff was damaged. Now, when it is conceded, as it has been, that the inspector, in the condemnation of the plumbing in the houses and in the severance of the connection with the sewerage system, was wholly within the line of his duty, it would seem that' the whole allegation must fail. Moreover, apart from the concession that the inspector did no more than his duty when he condemned the plumbing and severed the connection, there is a manifest inconsistency between the several statements of the declaration. If we assume, as the declaration alleges, that the inspector did in fact negligently and wrongfully fail to inspect the plumbing in the houses while they were in the course of construction, yet it would be none the less his duty, under the order of the commissioners, to condemn the work and sever the connection when occasion arose for such action, and his action in so doing can not with any propriety be characterized as wrongful or unlawful. A violation of duty in the first instance can. not make the subsequent performance of it wrongful or unlawful. Upon the failure to inspect at the proper time, which necessitated the subsequent condemnation and severance, and not upon this subsequent action as in itself a grievance, can the declaration properly be based.

•If the allegation of neglect on the part of the inspector to< cause the proper inspection to be made of the premises in question at the proper time is well founded, there is in the declaration sufficient to show that the use plaintiff may have been damaged by the neglect; but it has not been sufficiently or properly stated. The real damage to the use plaintiff was not in the condemnation of the plumbing and the severance of the connection, which were both lawful and may indeed be regarded as having been for the benefit of the property and of the plaintiff as its owner, but in the increased price which she paid for the property upon the faith of the inspector’s performance of his duty, or in the expense to which she was put to place the property in the condition in which it would have been if the inspector had performed his duty.

On behalf of the appellant, however, it has been argued that so much of the first count of the declaration as refers to the purchase of the property by Mrs. Young and the subsequent condemnation and severance of the plumbing may be regarded as surplusage; and that as the District of Columbia is, as claimed, the real plaintiff, and negligent failure of inspection is alleged, a sufficient cause of action on behalf of the District is stated, upon which nominal damages, and only nominal damages, could be recovered. It is unnecessary to pursue this argument into the citation of authorities which are adduced in support of it. It must suffice to say, as to them, that, in our opinion, the authorities cited are not applicable to the question in issue.

Courts of law cannot regard with favor suits instituted merely to mulct defendants in costs, such as this would undoubtedly be under this theory of the appellant; and least of all can it be tolerated that official bonds can be made the basis of such suits and the name of the State or the municipality used without warrant by private parties, who can assign no damage to the State or municipality and who have no individual interest themselves in the subject-matter of suit. It is a Avellestablished rule of law that a mere breach of duty, either by a public official or by a private person, will not warrant the institution of suit against him, without allegation and proof of damage sustained by the plaintiff in consequence of such breach of duty. No damage of any kind is here, alleged to have accrued to the District of Columbia; the sole damage alleged is to the use plaintiff. Consequently, if the latter be stricken out, no cause of action is stated.

From what we have said, it follows that, while the use plaintiff is justified in law in putting the inspector’s official bond in suit for neglect of duty causing damage to her, and in using the name of the District of Columbia for the purpose, yet that the declaration is demurrable in not properly stating a good cause of action in the use plaintiff. But at the same time it is readily inferable from the declaration that such cause of action does or may exist. It would seem, therefore, to be in the interest of justice that the plaintiff should have an opportunity to amend the declaration. That opportunity, it is true, was given to the plaintiff in the court below, and was rejected or refused, probably under a mistaken view as to her rights in the premises. We think that, in the interest of justice, and under the very liberal provisions of the statute in regard to amendments, that opportunity may properly be allowed again; although it will not do to experiment with the right of appeal in anticipation of the subsequent allowance of amendment. Such allowance will be used sparingly, and only when the interests of justice seem very plainly to demand it.

If the appellant here, who is the plaintiff in the court below, will file in this court within ten days a notice of her intention and willingness to amend the declaration In accordance with the views expressed in this opinion, the judgment appealed from will be reversed, and the cause will be remanded for the purpose of such amendment and for further proceedings therein according to law. But if the appellant will not file such notice within the time specified, the judgment will be affirmed. In either case the appellant must pay all the costs of the appeal. And it is so ordered.

[The appellant filed the notice required by the foregoing opinion, and the judgment appealed from was reversed. — Reporter.]