method and necessary for the public health to destroy first and investigate afterward, the owner is none the less entitled to a hearing although it must of necessity occur after the event, and if it appears that sound and valuable property has been destroyed, he is entitled to compensation. If there is no judicial hearing in advance, the adjudication of the board of health that a nuisance existed is not conclusive upon the owner, and he may not only defend an action brought by the municipality to recover the expense of abating the nuisance, but he may recover damages from the officers who destroyed his property if it was not in fact a nuisance or dangerous to the public health, and the burden is on them of showing that they were justified in destroying it.10 There are decisions to the effect that the officer is not liable if he acted in good faith,11 but such decisions disregard the constitutional rights of the owner. The public necessity may require that the health officers destroy first and investigate afterwards; but if as a result of such necessity sound and valuable property is destroyed, it is taken for the public use as unquestionably as if it was to be employed upon the public works, and the owner is as clearly entitled to compensation.12 179. Physical Enforcement of Ordinances. Similar considerations to those discussed in the last paragraph affect the right of a municipality to enforce by the physical acts of its officer the ordinances enacted under its police powers. Thus it has been held that a street car operated in violation of a city ordinance may be sent back to the stables,18 and obstructions in the streets may be forcibly removed,14 and rafts tied up for a longer period than the city ordinance permitted cut loose and turned adrift,15 and a floating structure permanently moored in navigable waters in violation of an ordinance sum 8. North American Cold Storage Co. v. Chicago, 211 U. S. 306, 29 S. Ct. 101, 53 U. S. (L. ed.) 195, 15 Ann. Cas. 276 and note; Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, 32 A. S. R. 113; Sings v. Joliet, 237 Ill. 300, 86 N. E. 663, 127 A. S. R. 323, 22 L.R.A. (N.S.) 1128; Salem v. Eastern R. Co., 98 Mass. 431, 96 Am. Dec. 650; Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 23 A. S. R. 850, 10 L.R.A. 116; People v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 37 A. S. R. 522, 23 L.R.A. 481. 9. Salem v. Eastern R. Co., 98 Mass. 431, 96 Am. Dec. 650 and note; Hutton v. Camden, 39 N. J. L. 122, 23 Am. Rep. 203 and note. 10. Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, 32 A. S. R. 113; Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 23 A. S. R. 850, 10 L.R.A. 116; Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 102 A. S. R. 983 and note, 1 Ann. Cas. 341, 66 L.R.A. 907. 11. Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3. 12. Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 23 A. S. R. 850, 10 L.R.A. 116. 13. South Covington, etc., St. R. Co. v. Berry, 93 Ky. 43, 18 S. W. 1026, 40 A. S. R. 161, 15 L.R.A. 604. 14. Vanderhurst v. Tholcke, 113 Cal. 147, 45 Pac. 266, 35 L.R.A. 267; Rost v. New Orleans, 15 La. 129, 35 Am. Dec. 186. 15. Tourne v. Lee, 8 Mart. N. S. (La.) 548, 20 Am. Dec. 260. marily moved away,16 and unlicensed dogs running at large may be killed. So also, it has been held, a municipal corporation may prevent by force the unauthorized construction of street railway tracks upon its streets.18 In some of the foregoing cases, property is actually destroyed, but even in the case of property intentionally kept in violation of law a distinction is to be noted between property of great and property of little value. Property of trifling value, the destruction of which is necessary to prevent the continued violation of law, may be summarily destroyed by the executive officers without a hearing,19 and the same is true of property of value if it is incapable of being put to any lawful use and is designed and intended to be used for violating the laws of the state,20 and the owner's only remedy if the property was in fact kept for an innocent purpose is an action at law against the officer who destroyed it; but property of great value, which is capable of use for a lawful purpose, cannot be scized or destroyed without a judicial hearing in advance. It has, however, been held that if a wooden house was built within the fire limits of a city in express violation of a municipal ordinance it might be torn down by the municipal authorities without any judicial proceedings whatever. But unless destruction is the most reasonable and practical way of enforcing the ordinance, it is not permissible. Thus it is not permissible for the municipal authorities to tear down a house because it is used for unlawful liquor selling, prostitution or gaming or other obnoxious purpose. 180. Civil Liability for Failure to Perform Labor Required by Ordinance. It has been uniformly held that, in the absence of a statute to the contrary, no civil liability arises from failure to comply with an ordinance which requires individuals to perform uncompensated labor upon the public works. The duty which has been violated in such a case has been created in order to enable the municipality to have one of its own obligations cheaply and expeditiously performed, and not to enable the individual citizens to use the public 16. Hart v. Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165. 17. State v. Topeka, 36 Kan. 76, 12 Pac. 310, 59 Am. Rep. 529. See also ANIMALS, vol. 1, pp. 1127-1130. 18. Los Angeles R. Co. v. Los Angeles, 152 Cal. 242, 92 Pac. 490, 125 A. S. R. 54, 15 L.R.A. (N.S.) 1269 and note. 19. Buttfield v. Stranahan, 192 U. S. 470, 24 S. Ct. 349, 48 U. S. (L. ed.) 525. 20. Police Com'rs v. Wagner, 93 Md. 182, 48 Atl. 455, 86 A. S. R. 423 and note, 52 L.R.A. 775. 1, 61 Am. Dec. 381. 2. Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, 38 U. S. (L. ed.) 385; Darst v. People, 51 Ill. 286, 2 Am. Rep. 301; Lanfear v. New Orleans, 4 La. 97, 23 Am. Dec. 477; Rost v. New Orleans, 15 La. 129, 35 Am. Dec. 186; Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381. 3. See supra, par. 135. 4. Miller v. Burch, 32 Tex. 208, 5 Am. Rep. 242; Bristol Door, etc., Co. v. Bristol, 97 Va. 304, 33 S. E. 588, 75 A. S. R. 783. Notes: 44 Am. Rep. 111, 112; 38 1. Fisher v. McGirr, 1 Gray (Mass.) L.R.A. 166. 5 works with safety and convenience, and it is accordingly owed to the municipality as a corporation and not the members of the public as individuals. Thus a householder who neglects to shovel off his sidewalk after a snow storm, in violation of a municipal ordinance, is not civilly liable either to a pedestrian who is injured by slipping on the sidewalk, or to the municipality for the amount of a judg ment which it has been obliged to pay to a person so injured. For a city is usually required to keep all duly established highways within its limits in good repair and clear of snow and ice, so that they shall, at all seasons of the year, be safe and convenient for persons passing and traveling thereon. And the city is in no degree exonerated from its obligations in these particulars in consequence of the adoption of ordinances designed and intended effectually to secure the proper application of whatever labor and means are necessary for the accomplishment of that purpose. The same is true of an ordinance requiring lot owners in a city to keep the sidewalks in front of their premises in repair or a street railway company to keep the space between the tracks paved.9 8 181. Civil Liability for Failure to Take Precautions Prescribed by Ordinance. With respect to ordinances obviously intended to conserve the lives and safety of the individual members of the public there is a conflict of authority. It is or has been held in some jurisdictions that a municipal corporation has no power to create a civil liability between individuals, and that the penalties which can lawfully be imposed for violation of an ordinance are those prescribed in its charter and do not include a judgment for damages in a civil action which may run into thousands of dollars.10 An exception to 5. Note: 5 L.R.A.(N.S.) 186 et seq. And see HIGHWAYS, vol. 13, p. 321 et seq. 6. Flynn v. Canton Co., 40 Md. 312, 17 Am. Rep. 603 and note; Kirby v. Boylston Market Ass'n. 14 Gray (Mass.) 249, 74 Am. Dec. 682 and note; Taylor v. Lake Shore, etc., R. Co., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457; Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937, 20 A. S. R. 760 and note, 10 L.R.A. 393; Heeney v. Sprague, 11 R. I. 456, 23 Am. Rep, 502. See also HIGHWAYS, vol. 13, pp. 415-416. N. Y. 405, 25 N. E. 937, 20 A. S. R. 760 and note, 10 L.R.A. 393; New Castle v. Kurtz, 210 Pa. St. 183, 59 Atl. 989, 105 A. S. R. 789, 1 Ann. Cas. 943, 69 L.R.A. 488. See also HIGHWAYS, vol. 13, p. 416. 8. Betz v. Limingi, 46 La. Ann. 1113, 15 So. 385, 49 A. S. R. 344 and note. 9. Fielders v. North Jersey St. R. Co., 68 N. J. L. 343, 53 Atl. 404, 54 Atl. 822, 96 A. S. R. 552, 59 L.R.A. 455. 10. Fath v. Tower Grove, etc., Ry., 105 Mo. 537, 16 S. W. 913, 13 L.R.A. 74 and note; Moran v. Pullman Palace Car Co., 134 Mo. 641, 36 S. W. 659, 56 A. S. R. 543, 33 L.R.A. 755; Philadelphia, etc., R. Co. v. Ervin, 89 Pa. St. 71, 33 Am. Rep. 726. 7. Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189; Keokuk v. Independent Dist., 53 Ia. 352, 5 N. W. 503, 36 Am. Rep. 226; St. Louis v. Connecticut Mut, Life Ins. Co., 107 Mo. 92. 17 S. W. 637, 28 A. S. R. 402 Note: 5 L.R.A. (N.S.) 186 et seq. and note; Rochester v. Campbell, 123 R. C. L. Vol. XIX.-56. 881 this rule is recognized when a corporation, in consideration of the grant of a franchise, agrees to be bound by an ordinance aimed at preserving the safety of the public. In other jurisdictions it is held that when persons enter upon an undertaking which subjects them to the common law duty of using reasonable care in order to avoid injury to others, a municipal ordinance may regulate and define that duty, and consequently violation of such ordinance is some evidence of negligence but that one who does nothing inju rious to others which he is by law forbidden to do, but simply leaves undone something beneficial to others which he is under no obliga tion at common law to do, cannot be made to answer in damages to a private individual suffering an injury which would have been escaped had the thing been done, merely because a municipal ordinance has commanded the doing of it; for the power to create a civil liability outside the common law belongs alone to a sovereign legislature. A third view is that a municipal ordinance passed under legislative authority has all the force and effect of a statute, and that if such an ordinance is enacted for the protection of the individuals composing the public as distinguished from the municipality itself, any person who suffers a special and peculiar injury by the violation of the ordinance by another person may maintain a civil action against the offender, irrespective of proof of actual negligence, or, as it is sometimes, but less accurately put, violation of the ordinance is negligence per se.13 A person who has violated an ordinance 12 11. Holwerson v. St. Louis, etc., R. Co., 157 Mo. 216, 57 S. W. 770, 50 L.R.A. 850; Fielders v. North Jersey St. R. Co., 68 N. J. L. 343, 53 Atl. 404, 54 Atl. 822, 96 A. S. R. 552, 59 L.R.A. 455. Note: 5 L.R.A. (N.S.) 186 et seq. 12. Brasington v. South Bound R. Co., 62 S. C. 325, 40 S. E. 665, 89 A. S. R. 905; Schmalzried v. White, 97 Tenn. 36, 36 S. W. 393, 32 L.R.A. 782; Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809, 70 A. S. R. 693, 43 L.R.A. 185. Notes: 53 Am. Rep. 52–55; 5 L.R.A. (N.S.) 186 et seq. 13. Hayes v. Michigan Cent. R. Co., 111 U. S. 228, 4 S. Ct. 369, 28 U. S. (L. ed.) 410; Southern R. Co. v. Prather, 119 Ala. 588, 24 So. 836, 72 A. S. R. 949; Western, etc., R. Co. v. Young, 81 Ga. 397, 7 S. E. 912, 12 A. S. R. 320; Laflin, etc., Powder Co. v. Tearney, 131 Ill. 322, 23 N. E. 389, 19 A S. R. 34, 7 L.R.A 262; Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132, 10 is not civilly liable for damages which do not proximately result from such violation nor can it be said that a violation of an ordinance made for the benefit or protection of certain persons or classes gives a right of action under all circumstances to persons or classes not within its purposes.14 When an injury has occurred, and there is a conflict of evidence whether the defendant violated an ordinance and thus caused the injury, he is not entitled to the benefit of a presumption that he complied with the ordinance.15 1 182. Violation of Ordinance as Affecting Plaintiff's Conduct.— A person who is injured by the negligence of another while he himself is violating a municipal ordinance is not necessarily on that account precluded from recovering damages for his injury. If his violation of the ordinance directly contributed to the injury he cannot recover, even if his conduct was not under all the circumstances negligent and the ordinance was not enacted for the purpose of protecting the individual members of the public. A violator of law seeking relief in the courts from the consequences of his own transgression will receive no favor.16 If, however, the injured person's violation of the ordinance did not directly contribute to the injury, his unlawful conduct is not a defense to his action, even if he would not have been injured if he had not violated the ordinance. The distinction is between that which directly and proximately produces or helps to produce a result as an efficient cause and that which is merely a necessary condition or attendant circumstance of it.17 Every person has a right to assume that every other person is obeying the ordinances in force in the municipality in which they are staying, and may regulate his conduct accordingly, and he cannot be charged with contributory negligence for failing to anticipate that the ordinance might be violated.18 If, however, a person actually sees that others are violating an ordinance, or in the exercise of reasonable care should have seen it, he has no right to act on a state of facts W. 648, 5 L.R.A. (N.S.) 186 and note; Gratiot v. Missouri Pac. R. Co., (Mo.) 16 S. W. 384, 16 L.R.A. 189, affirmed 19 S. W. 31, 16 L.R.A. 194; Fielders v. North Jersey St. R. Co., 68 N. J. L. 343, 53 Atl. 404, 54 Atl. 822, 96 A. S. R. 552, 59 L.R.A. 455; Smith v. Milwaukee Builders', etc., Exchange, 91 Wis. 360, 64 N. W. 1041, 51 A. S. R. 912, 30 L.R.A. 504. And see NEGLI GENCE. 14. Southern R. Co. v. Prather, 119 Ala. 588, 24 So. 836, 72 A. S. R. 949. 15. North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247, 7 So. 360, 18 A. S. R. 105. 21 Atl. 925, 11 L.R.A. 33; Heland v. Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. 670 and note; Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555, 4 A. S. R. 354 and note. See NEGLIGENCE. 17. Steele v. Burkhardt, 104 Mass. 59, 6 Am. Rep. 191; Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555, 4 A. S. R. 354 and note. Note: 11 L.R.A. 35. 18. Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 20 N, E. 843, 10 A. S. R. 136; Baker v. Pendergast, 32 Ohio, 16. Broschart v. Tuttle, 59 Conn. 1, St. 494, 30 Am. Rep. 624. |