
    Robert J. Ward vs. City of Louisville.
    APPEAL FROM JEFFERSON CIRCUIT.
    The city of Louisville is not responsible for injuries done to private property by a mob. (Prather vs. City of Lexington, 13 B. Monroe, 559.)
    The facts of the case are stated in the opinion of the Court. Rep.
    
    
      Wolfe 4 Poindexter for appellant—
    This action was brought in the Jefferson Circuit Court to recover from the defendant damages for an injury which was done to the dwelling house of the plaintiff by the violence of a mob.
    At the time this action was brought the plaintiff was fully aware of the decision of this court in the case of Prather vs. City of Lexington, 13 B. Monroe, 559 ; but the case under consideration, and that of Prather vs. City of Lexington, are so different in many material points, that this court may, in our humble judgment, reverse the judgment of the court below, and do no violence to the decision in the case of Prather. This case is presented on the judgment of the court below sustaining a demurrer to the plaintiff’s petition.
    The' allegations of the petition are to be taken as true, and the question arises does the plaintiff set forth a sufficient cause of action ? We maintain he does. The Court of Appeals, in the cáse of Prather vs. City of Lexington, page 502, uses this language : “If the city be liable, in her corporate capacity, for outrage committed by the mob, which occasioned the injury to the plaintiff’s property, it can only be upon the ground that the existence and lawless intention of the mob were known to the Mayor and, Marshal of the city, and that they neglected or refused to use any means, or to make any efforts to prevent the perpetration of the unlawful act, which could have been prevented by them.” They further say that the plaintiff’s declaration fails to allege that the existence of the mob and its intention were known to either of these officers, or that any application was made to them for their assistance on the occasion, &c.
    The petition in the present case contains all these important allegations. It charges that the lawless intention of the mob was known to the Mayor and Marshal of the city of Louisville; and it further charges that these officers neglected to use any means to prevent the perpetration of the unlawful act. It further alleges, that the plaintiff made application to the Mayor for assistance to protect his property, which the Mayor failed to render, and the consequence was that the property was greatly injured.
    The declaration in the case of Prather vs City of Lexington was fatally defective, because of the omission of the above important allegations.
    This case presents the facts that the Mayor and Marshal of Louisville had notice that there would be a mob, and that they made no preparation to suppress it. The aid of the authorities of the city was asked by the plaintiff, for the protection of his wife, children, and home, and-yet no assistance was rendered. A lawless mob ruthlessly assailed the dwelling of the plaintiff, and set fire to it, and the arm of the civil authority was never seen. An ordinance of Louisville authorized and required the Mayor, as the chief executive officer of the city, to call out the military to suppress violence, and yet no call -was made on the military by the Mayor, although he was apprised of the designs of the mob.
    -We refer the court to ordinance No. 31, page 80, Revised Ordinances of the city of Louisville, 1854; it reads thus: “Whenever the Mayor shall deem it ‘ necessary, in order to enforce the laws of the city, ‘ or to avert, or save life or property, in case of ca- ‘ lamity, he shall summon into service all, or so many ‘ of the citizens as he may judge proper, and such ‘ summons may be by proclamation or order, address-4 ed to the citizens, or to companies, classes, or dis-4 tricts, specified therein.” After providing for the imposition of a fine should the citizens disobey, the ordinance proceeds: “It shall be the duty of the 4 Mayor to watch the indications of any threatened 4 or meditated breach of the laws, or occurrence of 4 calamity, and to exert these powers in time, if prac4 ticable, to avert them.”
    By requiring all this of the Mayor the corporation assumed the protection of the life and property of the citizen. The ordinance is a proclamation to every citizen within the limits of the corporation, and to every one who shall become a citizen, that the powers of the corporation shall be exerted in his behalf if the necessity should arise to require it.
    No such ordinance as this was known to the city of Lexington. The Mayor of Lexington had no authority to call out the military, or other force, to suppress a mob. The charter and ordinances of Lexington were silent on that subject.
    There is then, we maintain, a marked distinction in the powers conferred in the two cases, and this, in our opinion, should make a difference in the judgment which the court should render. In the case of Prather vs. City of Lexington, the court say: “The 4 tenure of the office of Mayor is fixed by the stat-4 ute; he is commissioned by the Governor of the 4 Commonwealth, and the corporation has no power 4 to remove him.” Now the Mayor of Louisville is not appointed by the Governor; he is elected by the qualified voters of the city; nor is he removable as a State officer is removed, but is removable from office by the Board of Alderman, sitting as a court, upon charges preferred by the Board of Common Councilmen. It certainly would not be unreasonable that the city, in this case, should be responsible for the omissions of duty of the Mayor, because her qualified voters elect him, and her Board of Alderman remove him. Although we grant, and fully concur with the Court of Appeals in what they say in the case of Prather vs. City of Lexington, that it is a reason why the corporation should not be held liable, where the Governor appoints the Mayor, and where the corporation has no right to remove him. (13 B. Monroe, 583.)
    But this court took occasion to say that it decided the case of Prather on broader grounds. It held that the corporation is not liable for such delinquencies of its officers, as their omission to suppress a mob. The court did not, in strictness, hold that doctrine, because the only point that was presented for its decision was that which arose on the demurrer; but it held the language that the corporation is not liable for the personal delinquencies of its officers. We think we can show reasons why a corporation should be held responsible for the acts of a mob. It cannot be supposed that the Legislature intended to confer a mere unmeaning title by granting a charter for a municipal corporation. Some reason or dictate of policy must have prompted its creation. It must have been in the contemplation of the Legislature to better secure some rights in consequence of the additional burdens that are imposed on the citizens of a corporation. One of the greatest objects that could be accomplished by the creation of a corporation, is the organization and establishment and support of a strong and effective police. It is an undeniable fact that citizens of a city are subjected to burdens unknown to citizens of the Commonwealth residing in the country. Each citizen has to contribute, in proportion to the value of his property, to pay for the paving and grading of streets contiguous to the property. His taxes are necessarily burdensome in having to pay for the employment of a Mayor, Marshal, police, &c., and what better equivalent could he get in return than the perfect protection of his property from the assaults of lawless men.
    A charter is granted conferring franchises and powers, and imposing liabilities. One of the powers given is the right to compel the citizens to pay taxes. As a citizen then is compelled, to give up a portion of his property, there must be compensation returned or secured, for the organic law provides that no man’s property shall be taken from him without he has first secured its full and undoubted value.— What return shall be made to the citizen for imposing on him the burdens which he encounters as a citizen of a corporation ? There is but one answer, and that is, the support of a strong and effective police. As this is the great duty imposed, and this the compensation which must be made to the citizen for the confiscation of his property, it follows that this duty must be discharged, for the corporation has duties to perform, in other respects, which may enforced, as those of an ordinary citizen.
    Modern decisions are numerous on the point of the liability of corporations for the negligence or unskillfulness of their agents, in the construction of public works. (See Ross vs. City of Madison, 1 Smith, 98; Mayor of Memphis vs. Losser, 9 Humph., 757; Mayor vs. Furze, 3 Hill, 412; Mayor of Linn vs. Turner, Cowan, 86, which, although not a modem decision, is yet to the point.)
    The present case presents the most signal evidences of negligence on the part of the officers of a corporation, that the history of a country records. The Mayor is armed, by the laws of the city, with all the authority necessary to suppress a mob, and he does not, to the least extent, exert that authority. He is fully informed that a mob was about to assemsemble, and he uses no precaution to prevent it.— To throw the citizen upon the official bond of the officer, for redress, is virtually to place in his hands a barren sceptre. The official bond of the officer is no protection to the rights of the citizen. It is necessarily very small, whereas the loss to the citizens, by the violence of a mob, may amount to hundreds of thousands of dollars. In the present case our city was digraced by the doings of a lawless multitude, which was prepared for murder as well as arson. Maddened by a frenzy that knew no bounds, it drove from their peaceful home women and children, whose blood would have marked their retreat if hasty flight and concealment had not foiled their pursuers. Justice appeals loudly for redress, and that redress can only be found in the subjection of the corporation to the payment of damages that will teach a lesson which, in the future, may prevent the recurrence of scenes too disgraceful for decency or morality to contemplate with composure.
    We respectfully ask the court to reverse the judgment of the court below.
    
      R. J. Elliott for appellee—
    In support of the correctness of the judgment of the court below, I hardly deem it necessary to refer this honorable court to the case of Prather vs. City of Lexington, 13 B. Monroe.
    
    September 26.
   Chief Justice Marshall

delivered the opinion of the Court.

This action was brought to recover from the city of Louisville damages for injuries to the house of R. J. Ward, in said city, committed by a mob. The statements of the petition are substantially the same as the facts stated in the case of Prather vs. City of Lexington, 13 B. Monroe, 559, except that, after stating that the “Mayor, Marshal, and other officers neglected and refused to call in the requisitions of the law, and all necessary aid to protect the property aforesaid from the violence of the mob, and neglected and failed to suppress it,” these words, which seem to be more specific than those used in the case referred to, immediately follow: “Although the existence of the mob, and its intention were on the day and year aforesaid known to the Mayor of Louisville, to the Marshal of said city, and although notice was given to the Mayor of said city that the mob aforesaid would assemble, and although on the day and year aforesaid application was made by the plaintiff to the Mayor of said city to protect said dwelling house, and assistance asked of the Mayor to prevent said mob from injuring said house.”

In a second count or statement the case is somewhat aggravated, but so far as respects the sufficiency of the facts to sustain the action, it is not materially varied by the statement of the necessity that the plaintiff’s family should fly. and their actual flight, to escape the violence of the mob. And it states the notice to the Mayor to have been on the night of the assemblage of the mob, that it was about to assemble, and that in requesting assistance and protection from the Mayor, he was informed that the plaintiff was unable to protect the house from the mob. A demurrer to the petition was sustained, and a judgment having been rendered in bar of the action, the plaintiff has appealed to this court.

The general question as to the liability of a city, in its corporate capacity, for injuries to the person or property of its citizens, occasioned by the violence of a mob, is so fully discussed, the principles applicable to it so clearly stated, and opinion of this court so decidedly expressed against the liability on the ground both of principle and authority, that we deem it is scarcely necessary to say more upon that subject than that our opinion remains unchanged, and that if there be injustice or hardship in the operation of the law as we understand it, and as it is pronounced to be in. the case referred to, the remedy lies with the legislative and not with the judicial power of the commonwealth. The protection of person and property, is no doubt a principal object of every good government, and as being most essential to the welfare and prosperity of its citizens should be the primary object of its laws. But there are also other objects to be effected by governments, general and local. The more dense, and numerous, and mixed population of a city, affording greater opportunities and temptations to commit injuries, requires more efficacious means of protection. The means and the mode of applying them are to be prescribed by the sovereign authority in creating the corporation. Their application as well in the emergencies which might require peculiar promptness and energy, as in the ordinary state of things must depend upon the officers and agents who are entrusted with the exercise of the municipal powers. It is for the corporation or corporators, where the selection of these officers and agents is entrusted to either of them, to appoint persons to the number authorized, or in reasonable numbers, and of reasonable competency, and if entrusted with the power of removal, to remove, in the appointed mode, such as are incompetent. And even if it were admitted to be the duty of the corporation as such to protect, from lawless violence, the persons and property of its citizens, a breach of this duty could not arise, or be shown, except in the failure by its general legislation and appointments to supply the appropriate means, or in its failure, in particular emergencies, under proper notice, and with sufficient opportunity for action, to call forth and put in motion, in the proper direction, such appropriate force and means as the occasion might require, and as it might be authorized to use.

Ihis is in substance the proposition contained in the opinion rendered in the case of Prather vs. the City of Lexington, and which seems to be relied on as laying a basis for the responsibility of the city on the facts stated in this petition. That proposition is, that if the city is liable in her corporate capacity, it can only be on the ground that the existence and intention of the mob were known to the Mayor or Marshal, and they neglected or refused to make any efforts to prevent the unlawful act which could have been prevented by them. This of course implies that they failed to use the means in their power by which they could have prevented the act complained of, and that they had notice of the intention to commit the act in time to have prevented it by the proper use of the means in their power. Even upon this hypothesis as to the liability of the city, the declaration was held bad because it did not show how and when, and to which of the officers the notice was given. And if this had been shown, the question might still have arisen whether, upon the notice given, the injury could have been prevented.

It is clear, however, that this proposition, which is made the test of the declaration, is stated as a hypothesis, and not as a direct annunciation of the opinion of the court as to the liability of the city, upon the facts stated to be necessary. It is, that if the city is liable at all it[? could only be by the existence of certain facts, which, not being shown in the declaration, that would be insufficient even upon the hypothesis assumed. And as that hypothesis is clearly inconsistent with the general principles positively stated in the opinion, it is more correct to say that the case was decided upon these principles, and that it declares and establishes them, than that it went off because the declaration did not show when and how, and to whom the notice was given.

But even if the case should be considered as establishing nothing more than that a declaration in such a case should show when and how, and to whom the notice was given. What object could there be in making this requisition, except that it should be made to appear that the notice was given in such manner, to such person, and in such time as to require the corporation, through its proper organs, to act for the prevention, or at least the mitigation of the injury, and to give an opportunity of doing so by the proper use of the means within their power, and which it was their duty to use for the purpose. And although the petition is somewhat more specific in this case than the declaration was in the other, it omits to state the manner of the notice, nor does it state the time of the notice so as to show that it was such as would have enabled the officers notified to use with effect the means of defense or protection within their power, or that they could by those means have prevented the injury. The petition is therefore defective even when subjected to this test.

The city of Louisville is not responsible for injuries done to property by a mob. (Prather us. City of Lexington, 13 B. Monroe, 559.)

But as was done in the case before referred to, we decide this question upon the broader ground that it is not shown that the city in her corporate capacity has been guilty of any breach of duty, an'd that she is not liable for the delinquencies or failure of her executive and ministerial officers to perform their duties in the preservation of the peace and good order of the city; that upon the general principles of law she is not responsible for injuries committed by lawless individuals or mobs, and is not made responsible by statute. And that the petition, as it does not show either that any illegal act has been done under her authority, or that she has been guilty, as a corporation, of any breach of legal duty by which, she has incurred responsibility for the injuries complained of by the plaintiff, the declaration does not show a cause of action against her, and was therefore properly adjuged bad on the demurrer, We refer to the case of Prather vs. the City of Lexington, and. the authorities there cited.

Wherefore, the judgment is affirmed.  