Dunbar v. Alcalde of San Francisco

By the Court,

Bekhett, J. The action is brought against the defendants, in their corporate capacity, to recover the value of a building and its contents, which were blown up during the fire of December, 1849. The Alcalde, acting under the advice and in concert with several .members of the Ayuntamiento, gave orders for blowing up the building, and such orders were carried into execution at a time, when, according to the finding of the referees, the destruction of the building by fire was not [356]inevitable. It was admitted, on tbe hearing before the referees, “ that the blowing up of Mr. Dunbar’s house was the act of “ the defendants.” I shall, therefore, consider it as such.

From the view I take of the case, it is unnecessary to consider whether overruling necessity would form an excuse for the grievance complained of, or whether the action, had it been brought against the members of the Ayuntamiento personally, could have been sustained.

It is by no means clear, that the destruction of the plaintiff’s building can be considered as a taking of private property for public use, within the meaning of that clause of the constitution, which prohibits such taking without just compensation. (Russell v. The Mayor of New York, 2 Denio, 464, 473, 483; Lawrence et al. v. The Mayor, &c., id. 491, note a; American Print Works v. Lawrence, 1 Zabriskie’s Rep. 258, 264.) But it is, also, unnecessary to determine this point, for, although the property should be considered as having been taken for public use, such taking can impose no liability upon the public, unless the power to take had been conferred by law upon the Ayun-tamiento.

The question to be determined is, whether the defendants, a municipal corporation, or quasi corporation, had the authority given to them by the law, which defined their powers and duties, to destroy buildings or other property for the purpose of arresting the progress of a conflagration? If they had not, I do not see how they can make the public liable for such an act.

It is a rule of interpretation, that corporations, or quasi corporations, can possess or exercise such corporate powers only as are expressly given by statute, or by their charters, and such as shall be necessary to the exercise of the powers enumerated and given. (2 Kent's Comm. 298, 299; Hodges v. The City of Buffalo, 2 Denio, 110; Angel and Ames on Corp. 239; Head & Amory v. The Providence Insurance Co., 2 Cranch, 127; Bank of Augusta v. Earle, 13 Pet. 519; Runyan v. Lessee of Coster et al., 14 Pet. 122; 1 Feb. Mej. 22.)