
    *Jones & Co. v. The City of Richmond.
    April Term, 1868,
    Richmond.
    Municipal Co ron rations .ies truer ion of Liquor by City Ordinance — Liability of City. -On the 2d of April, 1865, in anticipation of the evacuation of the city of Richmond by the Confederate army, the Council of the city ordered the destruction of all the liquor in the city, and undertook to pay for it. The Council, under the charter of the city, had authority to malte the order and the pledge; and the city of Richmond is responsible for the value of the liquor destroyed under the order of the Council.
    This was an action on the case in assumpsit in the Circuit Court oí the city of Richmond, brought by William B. Jones and Richard L/. Brown, merchants and partners trading tinder the name and style of W. B. Jones & Co., against the city of Richmond, to recover the value of a quantity of liquor destroyed by the order of the Council of the city on the morning of the 3d of April, 1865. The declaration contained two special counts, and the common counts in assump-sit. There was a demurrer to the special counts, which was sustained by the court; but as the demurrer was sustained on the ground that the facts did not constitute a cause of action against the city, they need not be further stated.
    Upon the trial the plaintiffs introduced as evidence the following resolutions of the Council of the city, adopted on the 2d of April, 1865:
    1. Resolved, That it is the imperative duty of this Council, in the case of the evacuation of this city by the government *and army, to provide, as far as it can, for the immediate destruction of the stock of liquor in the city.
    2. Resolved, That a committee of twenty-five citizens in each ward be appointed by the president to act on behalf of the city, and proceed at once to accomplish this object. That said committee destroy on the premises all the liquor they can find, giving receipts for the same to the holders.
    3. Resolved, That the faith of the city be and it is hereby pledged for the payment of the value of all the liquor so destroyed to the holders of said receipts.
    They further proved by a witness, that he was one of the committee appointed under the second resolution of the Council, ' and that, on the morning of the 3d of April, 1865, he caused to be destroyed under the said resolutions, the whiskey, brandy, rum and alcohol of the plaintiffs, which is mentioned in a receipt given bj' him at the time to the plaintiffs. This receipt was introduced in evidence, dated Richmond, April 3d, 1865: Received and destroyed for Mr. W. B. Jones, (specifying the quantity of the different kinds of liquor), for which the city, through its Council, agrees to pay its full value, this receipt being his voucher. The plaintiffs then introduced evidence as to the value of the liquor; when the attorney of the City moved the court to instruct the jury, that the plaintiffs are not entitled to recover against the defendant any damages for the destruction of said liquor, no matter what was the value thereof. This instruction the court gave; and the plaintiffs excepted.
    There was a verdict and judgment for the defendant; and the plaintiffs obtained a writ of error from a judge of this court.
    C. Robinson, Roberts and Nance & Williams, for the appellants.
    *lst. This case does not come under the custom by which land may be used for defence against a foreign enemy, which is referred to in 8 E). 4, 23; 1 Bac. Abr. fo. 201, titles Customes pi. 45; 20 Vin. Abr. 476, title Trespass (B. a) pi. 4; 21 H. 7, 27, cited in 2 Bac. Abr. 285, title Trespass pi. 213; 20 Vin. Abr. 513, title Trespass pi. 24, 12 H. 8, fo. 2; 13 H. 8, fo. 15; 29 H. 8; Maliverer v. Spike, 1 Dyer R. 36b. ; Saltpeter case, 12 Rep. 12, 13; Mouse’s case, 12 Rep. 63; Gedge v. Minne, 2 Bulstr. 61. And even in such cases Vattel says, when standing corn or storehouses are destroyed to prevent their being of use to the enemy, such are to be made good to the owner, who should bear only his quota. Book 3, ch. 16, § 232.
    2d. The constitution of the United States, Article 5 of the amendments, and of Virginia, Article 4, § 15, provide that private property shall not be taken for public use without just compensation. The restrictions put by these provisions upon legislation by the State may be seen by reference to 2 Kent’s Com. 339; Mayor, &c., of New York v. Uord, 17 Wend. R."289, 18 Id. 126; Stone, &c., v. Mayor, &c., of New York, 25 Wend. R. 157; Taylor, &c., v. Inhabitants of Plymouth, 8 Mete. R. 462; Code ch. 55, 16, 17.
    3d. The council of the city of Richmond bad authority to pass the resolutions adopted on the 2d of April, 1865, and to come under the engagement contained in them. The 54th and 56th chapters of the Code are applicable to the corporation of Richmond and the Council of the city; and the powers of the corporation are still further enlarged by the charter of March 18th, 1861. By section twenty-nine of the charter, the Council has authority to pass all by-laws, rules and ordinances not repugnant to the constitution and laws of the State, which shall be necessary for the good order and government of such persons *as shall from time to time reside or be within the limits of the city, &c. ; or which they shall deem necessary for the peace, comfort, convenience, good order, good morals, health or safety of said city or of the people or property therein. It was for the Council, tinder the powers vested in it, to determine what was necessary for the peace, good order and safety of the city; and in the performance of their duty they directed the destruction of the liquor in the city, and undertook to pay for it.
    4th. It made no difference that the property destroyed was liquor. Wynehamer v. The People, 13 New York R. (3 Kernan) 384; Howell, &c., v. City of Buffalo, IS New York R. (1 Smith) S19.
    Daniel, for the appellee.
    The only question in this case is, whether the Council of the city had authority to destroy the liquor in the city at the time it was ordered. This authority must be derived, if it existed, from one of two sources. First — Overruling necessity; or, Second— The right of eminent domain. The distinction between these sources of power is explained in American Print Works v. Bawrence, 3 Zabr. R. 603-608. If the authority was derived from the first source, then the plaintiffs had no right to compensation ; and the promise of the Council was without authority and without consideration.
    There is certainly no inherent right of eminent domain in the corporation of the' city of Richmond. All its powers are derivative, and are only such as are vested in it by statute; and in construing the statutes giving it powers, we are told that they must be construed strictly. City of Richmond v. Daniel, 14 Gratt. 388; City of New Bondon v. Brainard, 22 Conn. R. 552; State of New York v. Mayor and Aldermen of New York, 3 Duer’s R. 110; City of Ba-fayette v. Cox, 5 Indiana R. 38.
    *There is no doubt that the Begis-lature may grant this power of eminent domain to corporations, and counties which are quasi corporations; and that this has been done in some cases in this State, as to take land for streets, for gas and water works, for roads and mills. But the fact that these powers have been granted demonstrates the necessity of the grant to the exercise of such powers.
    It is not pretended that there is any express grant to the corporation of Richmond of the power to destroy the property of the citizen; but counsel attempt to derive it from some general words to be found in section twenty-nine of the charter of the city of March 18th, 1861. It is obvious, however that the language must be construed with reference to the other powers granted'to the city; otherwise the expression of specific grants of power would have been useless; and it is obvious too, that the powers to be exercised under these general words is to be exercised by fixed and permanent by-laws, rules or ordinances and not by some individual and instantaneous act. All the provisions of the section refer to legislation, not executive action.
    
      
      Tlunieipal Corporations — Destruction of Liquor by City Ordinance -Liability of City.- The decision in the principal case was recognized as sound in Dinwiddie County v. Stuart, 28 G-ratt. 526, 550. 579, and was accepted by the Supreme Court of the United States in City of Richmond v. Smith, 15 Wall. 138, 21 L. Ed. 201, as settling the local law upon the suhiect. But in Wallace v. City of Richmond, 94 Va. 204, 26 S. E. Rep. 586. — a case involving the same question as the principal case. 1. e., as to the council’s power, under the law, to direct the destruction of the plaintiff’s liquor and bind the city to pay him for it — the principal case was disapproved, and it was held that the order was ultra, vires and that the city was not bound for the payment of the liquor destroyed.
    
   RIVEJS, J.

This cause rests upon a bill of exceptions to an instruction of the court denying the right of the plaintiffs to recover upon the evidence. Questions were made by demurrer to the first and second counts of the declaration; but in the argument here it seemed to be conceded, that the necessity of deciding them would be superseded by an adjudication of the principle defining' the liability of the defendant in error. Hence, it will not be necessary to bestow any special notice upon the pleadings, but to restrict our examination to the propriety of this instruction. Its grounds are not expressed in the record; but the full and exhaustive argument we have had at this bar, discloses them with great clearness. It is contended on the part of *the City, that the corporation is not liable on two grounds: first, because the destruction of these stores was the result of that urgent necessity which, on common law principles, deprives the sufferer of indemnity; and secondly, if not to be so regarded, it was an exercise of eminent domain, not pertaining to the corporation either by express or implied delegation of powers to that end, in its charter, or the general laws of the State.

The resolutions of the City Council for the destruction of these liquors were taken on the eve of its evacuation, in April, 1865, and were carried into effect just before the entry of the Rederal forces. However, opinions may differ as to the extremity of this emergency; and the propriety of the measures thus taken to remove the most common, if not the most certain, cause of riot and military insubordination upon such an event,-it must be conceded that this step was not inconsistent with a prudent forecast, a wise discretion, and a reasonable precaution. It may not now be possible to determine how far military discipline might have restrained the soldiery and populace under the ordinary license and excitements of such an occasion, from the plunder of these liquors, and the disorders usually created by it; the natural probability, however, that it might not have been prevented by all the resources of military discipline, should now be accepted as a sufficient justification of that discretion which was reasonably employed in removing such a prolific source of disorder and brutal license on an occasion so threatening to the safety of property and the good order of society. It was not for the Council, in its deliberations on the 2d of April, to foresee the order or events- of a military hostile occupation, or to determine whether or not, by design or accident, the city might be exposed to the perils of rapine and disorder under such circumstances. Hence, it must be admitted *that these legislative guardians of the city were well justified in the exercise of a dis- • cretion as to the destruction of stores so ' dangerous to the peace and safety of the ■City; and that there is nothing in the facts ■of this cause to create the belief that their action in the premises was not the result of a sound discretion and a proper precaution.

But the question is raised whether these resolutions were within the scope of their corporate powers. This court has judicially recognized this corporation as a public municipality, as well as a private one, and clothed with delegated trusts of a governmental kind. The General Assembly has chosen to impart to it some of its own sovereign attributes over the people and property embraced by its charter. It is needless to enumerate these. It is sufficient for the purpose of this enquiry to state, that it possesses ail the general corporate ! ‘powers anct capacities appertaining to municipal corporations in this commonwealth,” and that by the 29th section of its charter, the Council is specially empowered to 1 ‘pass all by-laws, rules and regulations, which they shall deem necessary for the peace, comfort, convenience, good order, good morals, health or safetj^ of said city, or of the people or property therein.” It is hard to conceive of larger terms for the grant of sovereign, legislative powers, to the specified end than those thus employed in the charter; and they must be taken by necessary and unavoidable intendment to comprise the powers of eminent domain within these limits of prescribed jurisdiction. There were two modes open to the Council: first, to direct the destruction of these stores, leaving the question of the City’s liability therefor to be afterwards litigated and determined; or secondly, assuming their liability, to contract for the values destroyed under their orders. Had they pursued the first mode, the corporation would have been liable in an action of trespass *for the damages; but they thought proper to adopt the latter mode, made it a matter of contract, and approach their citizens, not as trespassers, but with the amicable proffer of a formal receipt and the plighted ‘faith of the city’ for the payment. In this, they seem to me to be well justified. They found themselves inhibited, by the terms of their charter, sect. 49, from “taking or using any private property for public purposes, without making to the owner or owners thereof just compensation for the same.” I am well aware the exception is taken in adjudged cases, that such destruction is not within this language; but coupled with the inherent equity of such a course, this language was persuasive to the actual agreement for payment, and should be accepted as a probable and reasonable motive with the Council.

One of the primary and fundamental capacities of a corporation is, “to contract and to be contracted with.” The City, through its Council and committees, approach the liquor dealers and possess themselves of their stores by virtue of a formal contract, set forth in the resolutions of the Council, to receipt and pay for them. The least that could be said, if the City can escape this contract, would be, that the citizen was a sufferer by obedience to the public authority, and betrayed by his acquiescence in the formally proffered terms of the City. I am happy in the confidence, that no such consequence and injustice can result from the doctrines of law applicable to this case. The Council, or its successors, cannot esteem it a hardship to be required to keep their plighted faith to the holders of their receipts; and their failure to do so without suit, which, I confess, excites my surprise, is doubtless due to the doubts that have been raised by the able counsel for the defendant in error. I am, therefore, of opinion that the court below erred in its instruction to thee jury, and in ^sustaining the demurrer to the first and second counts, which set out the special undertaking of the defendant.

The other judges concurred in the opinion of Rives, J.

Judgment reversed.  