Roth v. District of Columbia

16 App. D.C. 323, 1900 U.S. App. LEXIS 5298

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 3, 1900
• Docket: No. 955
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

Upon the exception taken by the plaintiff to the ruling of the court below, and the assignments of error founded thereon, two principal questions are presented for determination : (1) Whether the Metropolitan police organization of the District of Columbia is a branch of the municipal organization known as the District of Columbia, or a distinct and independent organization which the municipality-does not control and for the acts of which the municipality is not liable; (2) Whether the conduct and management of the ambulance stables, out of which grew the alleged nuisance complained of by the appellant, were public duties for which it is claimed the District of Columbia as a municipality would not be liable, or were municipal duties for which it is conceded the District would be liable.- Upon neither of these questions do we find ourselves able to concur in the conclusion reached by the learned justice who presided at the trial of the cause in the court below. We are of opinion that the police force of the District of Columbia is an integral part of the municipal organization of the District; and we are likewise of opinion that, even if this were not so, the District of Columbia, as a municipality, is liable for the nuisance, or alleged nuisance, complained of in these proceedings, if such nuisance is shown to exist.

1. Whatever may have been the legal relations between the District of Columbia as a municipality and the organization of the Metropolitan police force of the District prior to the act of Congress of June 11,1878 (20 Stat. 102), which established a permanent form of government for the District of Columbia, we are satisfied that, since the passage of that act, the police organization has been merged in that of the municipality. By the sixth section of the act of June 11, 1878, two previously existing independent or semi-independent organizations of governmental character, and apparently the only organizations of the kind that then remained in existence, the board of Metropolitan police and the board of school trustees, both of which had maintained a separate existence, not only from the old corporations of Washington and Georgetown, and the levy court of the county of Washington, but likewise from the subsequent municipality which succeeded these under the act of February 21, 1871, the District of Columbia, were abolished, and their powers and duties were transferred to the Commissioners of the District of Columbia, the executive officers then established as the organs of the municipality. It is contended, on behalf of the appellee, that this transfer of power and duty was not to the District of Columbia as a municipality, but to the Commissioners of the District as individuals. In other words, it is claimed that the act did not have the effect of making the police force a part of the municipal or governmental organization of the District of Columbia, but simply that of substituting the persons who happened to be Commissioners for the time being in the place and stead of the former police board, in the interest of economy. To the correctness of this contention we can not assent. We see no good reason for any such construction of the act.

By the express provisions of the act it was determined by Congress that the District of Columbia should “remain and continue a municipal corporation,” as constituted by the act of February 21, 1871 (16 Stat. 419); and that the Commissioners provided for in the act and in whom the charge and control of the affairs of the municipality should be vested, were to “be deemed and taken as officers of such corporation.” Yet not a single power of any kind is given by express terms in that statute to the corporation thus continued in existence. By the act of February 21, 1871, by which the District of Columbia had been created a corporation for municipal purposes, it had received the usual corporate powers to “contract and be contracted with, sue and be sued, plead and be impleaded, and have a seal,” and a further very general grant to “exercise all other powers of a municipal corporation, not inconsistent with the Constitution and laws of the United States and the provisions of this act.” And it received what was designated and understood to be a territorial organization of government to carry these powers into effect. With the repeal and overthrow of the territorial organization, first by the temporary expedient of the act of June 20, 1874 (18 Stat. 116), and afterwards by the permanent arrangement under the act of. June 11, 1878, all this grant of power, so far as it was legislative, was withdrawn, and only the executive power remained which had previously been vested in the governor and board of public works, and which was now transferred to the Commissioners. The corporation remained, but it was powerless to act, except as Congress legislated for it and authorized the Commissioners to act for it. It was to the Commissioners then and ever thereafter, and never at any time to the District of Columbia as a municipality by express words, did the Congress address itself when it desired any municipal function to be performed. And yet undoubtedly all the powers then and thereafter by various enactments conferred upon the Commissioners were not in law conferred upon them individually and as distinguished from the municipality whose officers they were, but upon them as the agents of the municipality, and upon the municipality through them. We have repeatedly had occasion to consider the police regulations made by the Commissioners under authority of Congress to make such regulations; and it is always the District of Columbia as a municipality that is made a party to enforce such regulations; and it is the District of Columbia which is sought to' be held liable, and not the Commissioners individually, when any rights of individuals have been supposed to have been infringed by them.

When the Congress transfers the control and management of the police force to the Commissioners, why should not the grant of authority here also be construed as being made to them as the officers and agents of the municipality of the District of Columbia for the use and benefit of such municipality? Congress itself has expressly provided that the Commissioners are to be deemed and taken as officers of such corporation; and this is equivalent to a command that, in the construction of its own enactments the Commissioners are to be construed as receiving for the corporation all powers conferred upon them, and not otherwise. And in view of this express declaration of legislative purpose and intention, it would seem that it should be made to appear very clearly that such rule of construction should not apply in any particular instance where its application is sought to be excluded. The transfer of the charge of the police force to the Commissioners is made in the very same statute in which is'contained the declaration of the intention of Congress as to the character in which the Commissioners are to take any grant of authority; and it would do violence to the statute to hold that the declared purpose of Congress should not be given its due effect here as elsewhere. If the control and management of the police force were something of a peculiar character which never before had been intrusted to a municipality, or if there were any apparent principle of public policy to be subserved by the recognition of a distinction of character which we fail to find in existence, it may be that a different construction of the statute would be possible. But we know of no such principle of public policy; and we know that the control and management of the police force are universally regarded throughout all the States of our Union as being within the usual scope of municipal action, and only in exceptional cases and for exceptional circumstances are taken away by the State from the municipality, as it may be in any and all cases whenever deemed expedient for the public welfare.

It is very evident that it was the purpose of Congress in the act of June 11, 1878, to consolidate all the branches of municipal and local government in the District of Columbia in the hands of the Commissioners as administrators of the municipality, and to put an end to all independent or semi-independent organizations exercising governmental or municipal functions within the territory of this District. And when such was the evident purpose, we do not see why a strained construction should be given to its enactments that would tend to defeat or thwart that purpose, and re-establish in the District an aggregation of hydra-headed and practically irresponsible organizations.

While perhaps none of the cases cited on behalf of the appellant on this branch of the case is directly upon the point here considered, it is clear to us that the rulings in all of them tend to sustain the contention of the appellant in this regard. Barnes v. Dist. of Col., 91 U. S. 540; Eckloff v. Dist. of Col., 135 U. S. 240; Dist of Col. v. Woodbury, 136 U. S. 450; Dist. of Col. v. Hutton, 143 U. S. 18; Dist. of Col. v. Bailey, 171 U. S. 161. In one of these cases, that of Eckloff v. Dist. of Col., the Supreme Court of the United States said :

“When to a board having general administrative supervision of the affairs of a community and with plenary power in the matter of the appointment and removal of subordinates, is added the control of another department, and no express words of limitation are found in the act making the transfer, it is to be presumed that such board has the same plenary power in respect of this new department, and is not hampered by limitations attached to the board which theretofore had control of it. The presumption against implied repeal obtaining, in the construction of ordinary statutes yields to the inferences arising from the subject matter of legislation. Plenary powers having been found by experience valuable in the management of affairs already under the control of the board, the transfer of another department to the same control carries with it a strong implication that the added department is subject to the same plenary powers. The primary thought is not a mere transfer of authority, but the bringing of the added department within the control of the general supervising board. It is a unity of administration, and not change of commission.

“ But our conclusions are not controlled by this construction alone. The court below placed its decision on what we conceive to be the true significance of the act of 1878. As said by that court, it is to be regarded as an organic act, intended to dispose of the whole question of a government for this District. It is, as it were, a constitution for the District. It is declared by its title to be an act to provide ‘a permanent form of government for the District.’ The word permanent is suggestive. It implies that prior systems had been temporary and provisional. As permanent it is complete in itself. It is the system of government. The powers which are conferred are organic powers. We look to the act itself for their extent and limitations. It is not one act in a series of legislation, and to be made to fit into the provisions of the prior legislation, but is a single complete act, the outcome of previous experiments, and the final judgment of Congress as to the system of government which should obtain. It is the constitution of the District, and its grants of power are to be taken as new and independent grants, and expressing in themselves both their extent and limitations.”

In view of these considerations, we conclude that it was the intention of Congress, in the sixth section of the act of June 11, 1878, to make the management and control of the Metropolitan police of the District of Columbia an integral part of the municipality, and intrusted as such to the Commissioners as the administrators of the affairs of the municipality; and that such was the effect of the statute. The action of the Commissioners in the premises is, therefore, the action of the municipality.

2. But greater reliance seems to be placed by the appellee upon the proposition that the District of Columbia is exempt from liability in this case in consequence of the nature of the duties exercised by the police force, which are claimed to be governmental or public duties, and not duties of a merely municipal character.

In the exercise of the powers conferred by the State upon municipal organizations the distinction between purely municipal functions and governmental duties is undoubtedly well established, with the resulting consequence that, while the municipality is held to liability in the courts of law in respect of the former, no snch liability can be enforced with respect to governmental duties. We deem it unnecessary to follow counsel into their elaborate discussion of this subject further than to observe that, in our opinion, much of the confusion and contrariety of judgment to be found in the authorities is due to the failure to observe the distinction between the right and the remedy. That which constitutes a trespass when done by an individual is not the less a trespass when done by the State itself, or by the agents of the State, or in the course of the administration of government; but the right of action thereon in the courts can not be exercised because the State can not be sued without its permission, and redress can be had only by appeal directly to the legislative authority; and in some cases, the individual right is compelled to yield entirely to the general good and the demands of a predominant public policy. But it is very clear to us that the maintainance of a nuisance, such as is here alleged and complained of, is not a governmental function. If it be granted that the duties of the police force are mainly and even exclusively public and governmental, it does not follow, upon any principle of sound reasoning, that the houses to which they resort when they are not in the performance of any such duty, or the appliances which are contained in such houses, should be permitted to become a nuisance detrimental to health. The performance of their public duties does not require the perpetration of a nuisance by them. On the contrary, the abatement of nuisances is part of their duty, and part of the duty of the municipality; and we would regard it as an absurdity to assume that their public duties could not be performed without the commission of a nuisance.

The mere maintainance or location of an ambulance stable, although possibly annoying and inconvenient to the residents of a neighborhood, may not of itself be held to be a nuisance, since it is a necessary and proper appliance of governmental authority; but the negligent, improper, and unlawful manner of its maintainance, which, is the thing of which complaint is here made, is not warranted by any requirement of governmental duty, and is, on the contrary, directly antagonistic to the demands of such duty.

3. That the District of Columbia is liable for the existence and maintainance of this nuisance, if nuisance there is, which of course remains to be established, seems to us to be very plain. Even if the contention of the appellee were well founded, that the control of the Metropolitan police force did not become a municipal function by virtue of the act of June 11, 1878, and that the duties of the police force were purely governmental, yet we would not hesitate to hold the District of Columbia liable as a municipality in this case. We would regard it as an absurdity to hold that the Commissioners, as administrators of the affairs of the District of Columbia, and- as such authorized and required to abate nuisances within the territorial limits of the District, were without control over themselves as administrators of the police force to prevent or abate this nuisance. It is conceded, or at least it must be conceded, that, if a nuisance exists here, the Commissioners, as a board of police, permit, and therefore authorize, its maintainance. It would be a mere'juggling with phrases to say that the Commissioners, as the executive officers of the municipality, for whose action or inaction the municipality is responsible, were powerless to abate the nuisance.

But not only the reason of the thing, but the express provisions of statutory law, require that the District of Columbia be held to liability in this case. Section 371 of the Devised Statutes of the United States for the District of Columbia, which is section 16 of the act of August 16, 1861 (12 Stat. 323), which is the act that first organized the Metropolitan police force, provides that “ it shall be the duty of the proper authorities of the District to provide, at the expense of the cities of Washington and Georgetown respectively, all necessary accommodations within their respective limits for the station houses required by the board of police for the accommodation of the police force, for the lodging of vagrants and disorderly persons, and for the temporary detention of persons arrested for offenses, and to suitably warm and light the same.” And the appropriation act of July 14, 1892 (27 Stat. 150),- making appropriations for the support of the government of the District of Columbia, contained this item: “Buildings: For stables, for ambulances and horses on ground now owned by the District of Columbia, six thousand dollars” (p. 161). The District of Columbia, therefore, is the owner of this stable; it owns the lot on which the building stands; and it is the owner of the building constructed thereon. That lot and building it is required to make suitable for the accommodation of the police force, or for the branch of the police force to be harbored there. And plainly the duty does not cease with the construction of the building; for the property does not pass beyond its control. The duty is equal to keep it in proper condition and to provide for its being suitable in the first instance. It is not pretended that the District of Columbia has lost the control of these premises. It has not rented or leased them. It has retained and must retain them for the use and benefit of the police force; and it must keep them in proper condition for that use. This necessarily implies that it must not permit them' to become a nuisance, injurious to the health and comfort of the community.

Some argument has been based upon the theory that a municipality can not be held liable at the suit of a private person for the failure to perform a public duty, when it receives no profit or special advantage to itself from the performance of such public duty. But the matter of profit or absence of profit has no place in the present case. A municipality owning property stands in no different position from a natural person in respect of the duty not to permit it to become a nuisance. It would be strange indeed if the question of the liability of a municipality for a nuisance committed or permitted by it upon its own property to the detriment of the neighborhood were dependent upon the amount of gain derived by it from the existence of the nuisance. As we have said, the municipality is not in the performance of any public duty, but rather in the violation of its public duties, when it permits the maintainance of a nuisance upon its property.

From what we have said it follows, in our opinion, that there was error in the ruling of the court below in directing a verdict for the defendant, and in entering judgment thereon. The judgment of that court must, therefore, be reversed; and the cause will be remanded, with directions to vacate such judgment, to set aside the verdict, and for further proceedings in the cause according to law. And it is so ordered.