Field v. City of Des Moines.

corporations are not liable for injuries occasioned by reason of negligence in using or keeping in repair fire engines of the city.

It is further held, in the same case, that it makes no difference whether the legislature itself prescribes the duty of the officers charged with the repair and management of fire engines, or delegates to the city or town the power to define those duties by ordinance or by law.

In McDonald v. The City of Red Wing, 13 Minn. 38, it was held that a city is not liable for the destruction of a building torn down to arrest the progress of a fire, unless such liability is created by statute; and that it makes no difference whether such building is torn down under the direction of the city officers assuming to act in their official capacity, or by the citizens and bystanders on their own motion.

In Wheeler v. The City of Cincinnati, 19 Ohio St. 19, the Supreme Court of Ohio said, that "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 its 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 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, charged with the duty of extinguishing fires."

In Western College, etc. v. The City of Cleveland, 12 Ohio St. 375, which was an action against the city to recover for property destroyed by a mob, based upon a clause of the city charter, in reference to the city council, which provided that "it shall be their duty to regulate the police of the city, preserve the peace, prevent disturbances and disorderly assemblages," it was held that the duty intended was that properly appertaining to an administrative and legislative body, acting in the government of the city- the making regulations, by-laws and ordinances for the purposes specified, to be enforced by the appointment of officers; and that neither on general principles, nor from the effect of the enactment, was the

Field v. City of Des Moines.

city responsible for the destruction of property by a riotous assemblage of persons, or for the neglect of the officers in not preserving the peace and preventing the destruction of property.

In Dunbar v. The Alcalde, etc., of San Francisco, 1 Cal. 355, it was held that a municipal corporation is not liable for the destruction of a building, in pursuance of the direction of its officers, where no statute exists creating such liability. This decision was made in a case where the building of plaintiff had been blown up by the alcalde and other officers of the city during a conflagration, for the purpose of staying its progress, and where the destruction of the building by fire was not inevitable.

In Russell v. The Mayor, etc., of New York, 2 Denio, 461, the statute provided, "that when any building or buildings in the city of New York shall be on fire, it shall be lawful for the mayor, or, in his absence, the recorder of the city, with the consent and concurrence of any two of the aldermen thereof, or for any three aldermen, to direct and order the same or any other buildings which they may deem hazardous, and likely to take fire, or to convey the fire to other buildings, to be pulled down and destroyed." The statute also provided for an assessment of the damages which the owners of buildings thus destroyed should sustain, and for the payment thereof by the city. And it was held that the city was not liable in an action at common law for the loss of personal property deposited in a building destroyed by virtue of an order of the mayor, etc., pursuant to the statute to prevent the spread of fire; that the statute provided for compensation only to the owners of buildings thus destroyed, and to those "having an estate or interest" in such buildings; that the owner of personal property deposited in, and destroyed with, the buildings, was not within the statute, and could not, therefore, recover. It was further held in that case, that the authority conferred by the statute upon the officers of the city is a regulation of the right which individuals possess to destroy private property, in cases of inevitable necessity, to prevent the spreading of fire; that in making an order for the destruction of a building pursuant to the statute, the officers do not act as the agents of the corporation, but as magistrates designated by law for the execution of a public duty, and that the corporation was not responsible for their acts any further than the statute had made them so.

In Stone v. The Mayor of New York, 25 Wend. 157, it was held that the lessee of a building in the city of New York, destroyed by

Field v. City of Des Moines.

fire by order of the mayor, to prevent the spread of a conflagration, was not entitled to recover damages for merchandise in the building at the time of its destruction not belonging to him but the property of others, and which was in his possession as a factor, or merely on storage. The ground of this decision, like that in Russell v. The Mayor, etc., supra, is that there was no liability on the part of the city to make compensation for property destroyed, except as, and to the extent provided by the statute; that unless the statute created a liability on the part of the city, none existed.

This is the doctrine of all the cases we have found with the single exception of Bishop & Parsons v. The Mayor, etc., of Macon, 7 Ga. 200. There the city was held liable for blowing up the building of the plaintiff. No authority is cited except The Mayor, etc., of New York v. Lord, 18 Wend. 126. This case was decided both in the Supreme Court (17 Wend. 285) and in the Court of Errors, upon the ground that the statute of the State had expressly made the corporation responsible, and not upon the ground of any commonlaw liability. The decision stands alone, and in the language of the Supreme Court of California (Dunbar v. San Francisco, 1 Cal. 358), "Without some provision in the charter, or some statutory enactment, imposing the liability upon the city, I do not see how that decision can be sustained."

In Taylor v. Plymouth, 8 Metc. (Mass.) 462, which was an action to recover against the town for a building torn down to stop a fire, SHAW, Ch. J., says: "In order to charge the town, the remedy being given by statute only, the case must be clearly within the statute. Independently of the statute, the pulling down of a building in a city or compact town, in time of fire, is justified upon the great doctrine of public safety, when necessary,

But if there be no necessity, then the individuals who do the act shall be responsible. This is the more reasonable, as the law has vested an authority in the proper officers to judge of that necessity. But the town is responsible by force of the statute only, and such responsibility is confined to the cases specially contemplated." In support of the same doctrine of the non-liability of the corporation in the absence of an express statute, see the following additional cases. Weightman v. Washington, 1 Black (U. S.), 39; Coffin v. The Inhabitants of Nantucket, 5 Cush. 269; Hafford v. City of New Bedford, 16 Gray, 297; Ruggles v. Nantucket, 11 Cush. 433; Parsons v. Pettingell, 11 Allen, 507; Surocco v. Geary, 3 Cal. 69; Brink

Field v. City of Des Moines.

meyer v. Evansville. 29 Ind. 187. See also cases cited in notes to § 773 of Dillon on Mun. Corp., p. 722; and see also Ogg v. City of Lansing, 35 Iowa, 495, which was an action brought by the plaintiff against the city, alleging that in Nov., 1871, a man by the name of Less was taken sick with small-pox in the city; that the city authorities took said Less and the house in which he was confined under its charge and control, but neglected to take proper and ordinary precautions to prevent the spread of the disease; that Less died, and the agents and servants of the city requested and directed the plaintiff, who was passing the house in which Less died, to assist in taking the coffin in which said deceased was deposited from the house, without giving plaintiff any notice of the disease which caused the death, and without having cleaned the house or used any means to prevent the spread of said disease; that the plaintiff did so assist in removing said corpse, and soon returned to his own house, whereby the disease was communicated to his two children, who died thereof. It was held that, although the statute conferred the power upon the city to establish a board of health, who had power to make regulations in relation to communication with houses where there was any contagious or infectious disease, to establish pesthouses or hospitals, and, when deemed expedient and necessary to prevent the spread of any contagious disease, to remove to the pesthouse or hospital any person sick with any such disease, to prohibit communication or intercourse with such houses, etc., and to employ persons to carry into effect all the rules and regulations made by the board, etc., the city was not liable for the alleged negligent conduct of the persons thus employed in the hospital. It was held to be the "true doctrine that the powers conferred upon the corporaation are of a legislative and governmental nature," for a defective execution of which the city could not be made liable in a commonlaw action.

In the case before us, the statute (Rev., § 1057) authorizes municipal corporations to "protect the property of the municipal corporation and its inhabitants. Section 1058 empowers them to make "regulations for the purpose of guarding against danger from accidents by fire." Section 1071 confers the power upon the city" to make and publish from time to time by-laws or ordinances, not inconsistent with the law of the State," for carrying into effect the powers conferred, and makes it the duty of the corporation "to make and publish such ordinances or by-laws as shall be necessary

Field v. City of Des Moines.

to secure the corporation from injuries by fire," etc. And by sec tion 1096 the corporation is authorized to establish a city watch or police, and organize the same in such manner as will most effectually secure the inhabitants from personal violence and their property from fire and unlawful depredation, to establish and organize fire companies, and provide them with proper engines and such other instruments as may be necessary to extinguish fire and preserve the inhabitants of the city from conflagrations, and to provide such by-laws and regulations for the government of the same as they shall deem expedient."

We will not stop to determine whether these statutory provisions do or do not confer authority upon the city to pass the ordinance under which plaintiff's property was destroyed, for if they do not confer such authority, the city, in its corporate capacity, could not be made liable for the unauthorized act of any of its officers. The ordinance would be void, and would confer no authority on the mayor or other officers to do the act complained of, and the city would not be liable therefor. See Dunbar v. San Francisco, supra, and cases cited on p. 356. If, on the other hand, the ordinance is valid, and authorized the mayor to judge of the emergency and do what, by the common law, any individual might do at his peril without a statute upon the cases cited, the city is not liable for the consequences of his acts in the absence of a statute creating such liability.

II. It is insisted by appellant's counsel that the destruction of plaintiff's buildings, when there was no immediate necessity to do so to arrest the progress of the fire, was a taking of private property for public use, and having been taken by appellee in pursuance of the ordinance and statutes referred to, the plaintiff is entitled to compensation from the city.

There are several satisfactory answers to this position. First, the power of eminent domain is vested in the State, and can be exercised by it alone, either directly, or by the corporation or persons to whom it is delegated by the legislature; the purpose must be a public one, and specified in the act delegating the power, and the power must be strictly pursued. See cases cited in notes to sections 467, 468 and 469 of Dillon on Municipal Corporations There is nothing in the statutes of the State conferring the power of eminent domain upon the cities of the State, except for the pur pose of laying off, opening, widening, straightening, etc., streets,