
    Case 103 — Action by E. S. Arnold against City of Stanford to Recover Damages for Injury to Property.
    September 23.
    Arnold v. City of Stanford.
    APPEAL FROM LINCOLN CIRCUIT COURT.
    Judgment for Defendant and Plaintiff Appeals.
    Affirmed.
    Municipal Corporations — Location of Pestiiouse — Liability for Injury to Property — Ultra Vires — Failure to Prohibit Nuisance.
    Held: 1. In an action against a city to recover 'damages for injury to plaintiffs property resulting from the location by the. city of a pesthouse near it, the petition, even if otherwise sufficient, is not good in the absence of an averment that defendant, by action of its council in adopting an ordinance or resolution to that effect, directed the act complained of, or that the council, by ordinance or resolution, ratified the act; as a city in such, matters acts by its council only.
    2. As cities of the first, second, third, and fourth classes are each expressly empowered to establish or maintain pesthouses or hospitals for the treatment of eruptive diseases, the omission to confer that power on cities of the fifth class manifests a legislative determination to withhold .the power.
    3. As Kentucky Statutes, section 3909, expressly forbids the location of a pesthouse for the treatment of eruptive or contagious diseases within the corporate limits of any incorporated city, and provides a penalty against the “officer” or “person” who shall violate the section, the council can not bind the city, even by an ordinance providing for the erection of a pest-house w'ithin the city limits, as such ¡an ordinance would be ultra vires; and therefore a city of the fifth class is not liable for injury to property-from the erection of a pesthouse within the city limits, whether there was or was not an ordinance-providing therefor.
    4. A city is not liable for injury to property resulting from its failure to enact and execute ordinances for the prevention of a nuisance, as the failure of a city to discharge its political duties docs not render it liable.
    ROBERT HARDING and R. H. TOMLINSON, attorneys for' appellant.
    The city of Stanford, which is a city of the fifth class, erected and maintained a pesthouse within the city limits, and within 150 yards of appellant’s residence, for the treatment of smallpox patients and appellant filed his petition in the Lincoln circuit court for damages to his property thereby. A de- ' murrer to his petition was sustained ánd failing to plead further, his petition was dismissed and 'he appeals.
    By reason of the close' proximity of this pesthouse to appellant’s home, and the confinement therein for treatment of a patient afflicted with smallpox, appellant was compelled to remain in his home, with himself and family exposed to this disease and liable to have it invade his home.
    Of necessity, this created great alarm, anxiety and distress of mind, annoyance and inconvenience to appellant, forcing him to abandon for the time being the use and cultivation of a part of his real estate.
    These are the elements of damage that he suffered, and are wrongs confessed by the demurrer.
    AUTHORITIES CITED.
    Kentucky Statutes, see. 3909; CJayton v. City Henderson, 20 R., 87; Woods’ Law of Nuisance (2d ed.) see. 6; City of Paducah v. Allen, 23 R., 703.
    J. B. PAXTON, ATTORNEY FOR APPELLEE.
    1. In this action appellant does not allege that the pesthouse complained of was erected by an ordinance of the city of Stanford, and therefore states no cause of action, as it is an elementar}’ and fundamental principle that a municipal corporation can only act by ordinance of its legislative board, and in order to recover, the adoption of the ordinance must be plead.
    2. Even if there had been such an ordinance there would be no cause of action for the reason that appellee’s' charter does not empower it to establish a pesthouse, and it could not be held responsible for the ultra vires act of its officers acting beyond the scope of their authority.
    AUTHORITIES CITED.
    Dillon on Mun. Corp., sec. 413; Belleview v. Hohn, 82 Ky., 1; Clayton v. City Henderson, 20 R., 87.
   Opinion ok tiik court í?y

JUDGE O’REAR

Affirmino.

Appellee is a city of the fifth class. Appellant sued to recover damages because the city, it is alleged, located a pest house for the treatment of smallpox patients so near his house within the city as to endanger the lives of appellant and his family, and to render his home uninhabitable. A demurrer was sustained to the petition, and he declined to plead further. The petition does not aver ¡hat appellee, by action of its council, vin adopting an ordinance or resolution to that effect, directed the act complained of, or that the council, by ordinance or resolution, ratified the act. In such matters a city acts by its council only. Neither the individual acts of the members (though all may have favored the act), nor of its ministerial officers, unless ratified by council in session, should bind the municipality. Until so adopted or ratified, the act remains as that of the individuals perpetrating it only. But cities of the fifth class are not empowered to establish or maintain pest-houses or hospitals for the treatment of eruptive dismses. Cities of the fourth class are (subsection 0, section 3400, Kentucky Statutes), as are cities of the first (section .2783, Id.), second (section 3058, subsec. 1), and third (section 3200, subsecs. 3, 41. The fact that the Legislature, at its session when the statutes governing cities1 of the various classes were passed, gave the power specifically to some cities, and did not mention it when tx-eating of the powers of others, in which their ¡lowers are enumerated with particularity, indicates a legislative determination to withhold the power where it' was not expressed. State v. Ferguson, 33 N. H., 424. Section 3909, Kentucky statutes, forbids the location of a posthouse for the treatment of eruptive or coxxtagious diseases within the corporate limits of any incorporated city, or within a mile of the boundary line thereof. The same section provides a penalty against the officer or person who shall violate the section. Tn the absence of any other statutory regulation, this would seem to be an express prohibition against the-city’s maintaining or erecting the pesthouse within its corporate limits. Should the council attempt, even by ordinance. to do so, the ordinance would he void. They could not hind the city by it. Whefe officers of the city, with or without the protection of an ordinance, should do an act expressly prohibited by statute, such an act would not be within the scope of their official duty, and would be ultra vires. The city can not be bound thereby. Hart v. City of Bridgeport, 13 Blatchf., 289, Fed. Cas. No. 6,149; Goddard v. Inhabitants of Harpwell, 84 Me., 499, 21 Atl., 958, 3’ Am. St. Rep., 373; Thomson v. City of Booneyille. 61 Mo., 283; Hanvey v. City of Rochester, 35 Barb., 178; Dill. Mun. Corp., sections 968-970, and cases there collected. The case of Clayton v. City of Renderson (103 Ky., 228) (20 R., 87) (44 S. W., 667, 44 L. R. A. 474), is relied on.. In that case the city was held liable for establishing a pesthouse beyond the city limits in such proximity to plaintiff’s premises as to create a private nuisance. Henderson is a city of the third class. This court held the city liable. The city was then doing what it liad the legal right to do. In doing it, it so acted as to create a nuisance, for which it is liable, upon the principle that a municipal corporation is liable for its wrongful act when done within the scope of its charter authority, as an individual would be. bound by a similar act if done by its agent or servant acting within the scope of his authority. This act sued for is a nuisance under the facts stated. Clayton v. City of Henderson, supra. Rut not being the act of the city, it is the act of those who actually set up and maintained the pest-house. It was thus a private nuisance, of the same legal character that the establishment of a slaughterhouse by individuals might he. It is admittedly true that the city could, by ordinance and prosecution, so punish perpetrators of nuisances within its jurisdiction as to prevent them. For a failure to enact and execute such ordinances, will the city be liable? We are of opinion that it will not. It would be a failure to discharge its political duties for which it is not liable to a suit at law. Patch v. City of Covington, 17 B. Mon., 722, 66 Am. Dec., 186; Wheeler v. City of Cincinnati, 19 Ohio St., 19, 2 Am. Rep., 368; Rivers v. City Council of Augusta, 65 Ga., 376, 38 Am. Rep., 787; Davis v. City of Montgomery, 51 Ala., 139, 23 Am. Rep., 545; Dill. Mun. Corp., section 950, 951. In Rivers v. City Council of Augusta, 65 Ga., 376, 38 Am. Rep., 787, the city council had passed an ordinance forbidding cattle running at large in the streets, hui subsequently suspended it. During the suspension the plaintiff was gored by a cow running at large, in the street. It was held that the city was not liable for a failure to enact and enforce an ordinance on the subject of cattle running at large within its corporate limits. The matter was held to he one of governmental discretion. In Davis v. City of Montgomery, 51 Ala., 139, 23 Am. Rep., 545. a house was destroyed by Ore set by sparks from an engine, which was, by ordinance, a nuisance, subject to abatement, but which the city had neglected to abate. It was held that the plaintiff could not maintain an action against the city for its failure to take steps to abate nuisances within its limits, unless, perhaps, it had appeared that the corporation had acted corruptly, and abused its powers.

In our opinion, the petition failed to state a cause of action agaiusi ihe city in this case. Judgment affirmed.  