CITY OF NEW ORLEANS v. ABBAGNATO, 62 F. 240

PARDEE, Circuit Judge (after stating the facts). The treaty between the kingdom of Italy and the United States proclaimed November 28, 1871, guaranties to the citizens of either nation in the territory of the other “the most constant protection and security for their persons and property,” and further provides that “they shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives on their- submitting themselves to the conditions imposed upon the natives.” Treaty of 1871, art. 3 (17 Stat. 845).

This treaty applies to this case only so far as to require that the rights of the plaintiff shall be adjudicated and determined exactly the same as if she were, and her deceased son had been, a native citizen of the United States.

The constitution of the state of Louisiana provides as follows: “Tlie citizens of the city of New Orleans or any political corporation which may be created within its limits'shall have the right of appointing the several public officers necessary for the administration of the police of said city, and pursuant to the mode of election which shall be provided by the general assembly.” Const. La. 1879, art. 253. “The maintenance and support of persons confined in the parish of Orleans upon charges or conviction for criminal offenses shall be under the control of the city of New Orleans.” Id. art. 147.

The charter of the city of Row Orleans— “Creates all the inhabitants of the parish of Orleans, as now bounded by » * ⅜> as a body corporate, and establishes them as a political corporation by the name of the ‘City of New Orleans,’ with the following powers, and no more: It shall have a seal and may sue and be sued. ⅞ * * [Section 1.] The council shall have power, and it shall be their duty, to pass such ordinances, and to see to their faithful execution, as may be necessary and proper to preserve the peace and good order of the city; ⅜ * * to organize and provide an efficient police. * * * [Section 7.] The council shall also have power ⅞ * * ⅛ establish jails, houses of refuge and reformation and correction, and make regulations for their government, and to, exercise a general police power in the city of New Orleans. [Section 8.] The mayor shall keep his office at the city hall; ⅜ ⅞ * shall see that the laws and ordinances within the limits of the city of New Orleans be properly executed; * ⅜ * shall be ex-officio justice and conservator of the peace. * * * [Section 19.]” Acts 1882, No. 20, p. 14.

The áct of the legislature of Louisiana (passed in 1888) creating the police board of the city of New Orleans preserves to the mayor of the city of New Orleans the power, as the commander in chief of the police force, to issue such orders as may be necessary and proper for the preservation of the peace in the city of New Orleans, and in said act it was declared that: “It is hereby made the duty of the police force at all times of the day and night, and the members of such 'force are thereunto empowered, to especially preserve the public peace, to prevent crimes, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages which obstruct the free passage of public streets, sidewalks, squares and places, protect the rights of persons and property,” etc.

Acts 1888, No. 63, p. 64. The city of New Orleans, by her pleadings, admits the gross negligence charged in the petition in the performance of the duties devolving upon the municipality under the constitution and laws of the state above referred to, whereby Abbagnato- lost his life at the hands of a mob while in the custody of the law; and the question presented in this case is whether, on such, admission of facts, the city can be held liable in damages. It is well settled that at common law no civil action lies for injury to a person which results in his death. Insurance Co. v. Brame, 95 U.

S. 754-756; Dennick v. Railroad Co., 103 U. S. 11, 21; The Harrisburg, 119 U. S. 199-214, 7 Sup. Ct. 140. The rule is the same under the civil law, according to the decisions of the Louisiana supreme court. Hubgh v. Railroad Co., 6 La. Ann. 495; Hermann v. Railroad Co., 11 La. Ann. 5. In the absence of a statute giving a remedy, public or municipal corporations are under no liability- to pay for the property of individuals destroyed by mobs or riotous assemblages. Add. Torts, 1305; Dill. Mun. Corp. § 959. In the case of State v. Mayor, etc., of New Orleans, 109 U. S. 285, 3 Sup.

Ct. 211, the supreme court of the United States held that the right to demand reimbursement from a municipal corporation for damages caused by a mob is not founded on contract. It is a statutory right, and may be given or taken away at pleasure. In the same case, Mr.

Justice Bradley, concurring, said: “I concur in tlie judgment of this case, on Hie special ground tliat remedies against municipal "bodies for damages caused by mobs or oilier violators of law, unconnected with the municipal government, are purely matters of legislative policy, depending on positive law, which may at any time be repealed or modified, cither before or after the damage has occurred, and the repeal of which causes Hie remedy to cease.

In giving or withholding remedies of this kind, it, is simply a question whether the public shall or shall not indemnify tiioso who sustain losses from the unlawful acts or combinations of individuals; and whether it shall or shall not do so is a matter of legislative discretion, just as it is whether the public shall or shall not indemnify those who suffer losses at the hands of a public enemy, or from intestine commotions or rebellion.” If this be the rule with regard to fbe liability of municipal corporations for damages to property committed by mobs or riotous assemblages, a fortiori it must be the rule with regard to the liability of municipal corporations for damages resulting in the loss of life from the acts of mobs or riotous assemblages.

The reason of the rule is obvious. Actions to recover from municipal corporations damages resulting from the acts of mobs and riotous assemblages are actions to hold such corporations liable in damages for a failure to preserve the public peace. The preservation of the public peace primarily devolves upon the sovereign. Under our system of government, the state is that sovereign. U. S. v. Cruikshank, 92 U. S. 542-553; Western College v. City of Cleveland, 12 Ohio St. 377.

When, by the action of the state, a municipal corporation is charged with the preservation of the peace, and empowered to appoint, police boards and other agencies to that end, the corporation pro tanto is charged with governmental functions in the public interest and for public purposes, and is entitled to the same immunity as the sovereign granting the power for negligence in preserving the public peace, unless such liability is expressly declared by tbe sovereign.

This proposition is so well recognized that not a well-considered, adjudicated case can be found in tbe books where, in the absence of an express statute, any municipality has been held liable for tbe neglect of its officers to preserve tbe peace. In tbe case of Western College v. City of Cleveland, supra, it was said: “It is the duty of the state government to secure to the citizens of the state the peaceful enjoyment of their property and its protection from wrongful and violent acts. For the proper discharge of this duty, power is delegated in different modes.

One of these is the establishment of municipal corporations. Powers and privileges are also conferred upon municipal corporations to be exercised for the benefit of the individuals of whom such corporations are composed, and, in connection with these powers and privileges, duties are sometimes specifically imposed.

It is obvious that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect persons and property when they are to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the property comprised within the limits of the corporation and its adaptation for the purposes of residence and business. As to the first, the municipal corporation represents the state; as to the second, the municipal corporation represents the pecuniary and proprietary interest of the individuals.

As to the first, responsibility for acts done or omitted is governed by the same rule of responsibility which applies to like delegations of power; as to the second, the rules which govern the responsibility of individuals are properly applicable.” Tbe exemption of municipalities from liability to suits for damages for' tbe negligence of officers and agents in tbe execution of tbe governmental functions granted by tbe state, in tbe public interest, and in tbe absence of statutory liability, is recognized in Louisiana, as shown by tbe decisions of tbe supreme court of tbe state in Egerton v.

Third Municipality, 1 La. Ann. 437; Stewart v. City of New Orleans, 9 La. Ann. 461; Lewis v. New Orleans, 12 La. Ann. 190; Bennett v. New Orleans, 14 La. Ann. 120; Howe v. New Orleans, 12 La. Ann. 482; New Orleans, etc., R. Co. v. New Orleans, 26 La. Ann. 478,—although Johnson v. Municipality No. 1, 5 La. Ann. 100, Clague v. New Orleans, 13 La. Ann. 275, and Chase v. Mayor, 9 La. 343, are apparently to tbe contrary.

Tbe Louisiana cases, as well as those of other states, are very ably reviewed, and tbe whole matter discussed, in a well-considered opinion of tbe learned judge of tbe eastern district of Louisiana in tbe case of Gianfortone v. City of New Orleans (recently decided) 61 Fed. 64. It follows, therefore, that in order to recover damages against tbe city of New Orleans for tbe taking of human life by a mob in said city, no matter what tbe negligence of tbe city officials may have been, there must be a statute of tbe state of Louisiana expressly or by necessary implication giving a remedy in such cases.

Section 2453 of tbe Revised Statutes of Louisiana reads as follows: “The different municipal corporations in this state shall he liable for the damages done to property by mobs or riotous assemblages in their respective limits.” And

article 2315, Rev. Civ. Code, as last amended, reads as follows: “Every act whatever oí man that causes damage to another obliges Mm by whose fault it happened to repair it. The right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them, ami in default of these in favor of the surviving father or mother, or either of them for the space of one year from Lhe death. The survivors above mentioned may also recover the damages sustained by them by tiie death of the parent or child or husband or wife as the case may be.”

Article 233.0, Id., roads as follows: “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” And

article 2317: “We are responsible not only for the damage caused by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” It is not seriously contended in this case that

article 2453 of the Revised Statutes of the state warrants the maintenance of the present suit, or fi»'s any liability upon the city of Hew Orleans because of the death of Abbagnato at the hands of a mob, as recited in the petition.

As we consider the statute and the fact of its existence on the statute book, it goes rather to deny the right to recover in (Ms case than to support it, for it shows clearly that in the legisla live mind the statute was necessary to fix liability upon municipal corporations for damages to property done by mobs; and the limitation of the right to recover damages to property only shows a clear legislative intent that beyond property, and for life or limb, municipal corporations should not be responsible. The entire right of the plaintiff in error to recover damages must then be based upon

article 2335 and the subsequent articles of the Civil Code, above quoted.

Article 2315, as originally adopted, was as follows: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” It was under this

article that the decision in Hubgh v. Railroad Co., supra, was rendered, holding that an action for damages caused by the homicide of a free human being cannot be maintained. In regard to the ariiele the court says: “Tiie provisions of this ariiele, however general and comprehensive its terms may be, are found more than once recited in terns equally general and comprehensive in the laws of the 15th title of the 7th Partida. The

article was inserted in tiie Code of 1809, at a time when tiie Spanish laws were in force. It was put and retained to this time in the Code, not for the purpose of making any change in the law, but because it was a principle which was in its proper pla.ee in a Code; a principle which would be equally recognized as a necessary conservative element of society, and equally obligatory, whether it was formally enacted in a Code or not. ⅜ ⅞ * Merlin, in giving his conclusions before the court of cassation, in the Case <>1‘ Michel, Heynier et al., respecting the

article 1382 of the Code Napoleon, which is identical with the

article 2294 of our Code, says: ‘The principle laid down in

article 1382 is not new. It Is drawn from the natural law; and, long before the Napoleon Code, the Homan laws had solemnly proclaimed it. Long before that Code, the French laws had recognized and assumed its existence.’ ” We understand from this that the

article of the Civil Code in question was not an innovation of the civil law, in force in the state, introducing new principles and establishing new duties and responsibilities which did not before exist. It is a part of a system of laws, and controlling only where, under general principles, it is applicable to the facts and liabilities of a particular case. We have shown that the

article was not enforceable when the “act whatever of man” resulted in death, until the statute so declared, and this because of the intervention of other equally well-recognized principles of law. To mate it applicable in case of death through negligence, the legislature of 1865 amended the

article by adding thereto as follows: “The right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them for the space of one year from the death.” Acts 1855, No. 223, p. 270. As thus amended, the scope of the

article was still too narrow to permit the recovery of other damages than such as the deceased himself would have had had he survived the injury (Vredenburg v. Behan, 38 La. Ann. 627); and therefore the

article was again amended and re-enacted, adding thereto as follows: “The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife as the case may be.” Acts 1884, p. 94. Neither the amendment of 1855 nor that of 1884 enlarges the scope of the

article as to the persons who may be held liable for negligence. The amendments go no further than to provide for a limited survival of the action and an enlarged rute of damages. The

article is applicable now to the same persons, and to no others, as before amendment; and if, before amendment, it could not be applied so as to hold a municipal corporation liable for damages resulting from the acts of mobs and riotous assemblages, it cannot be so applied now. Before this amendment, it declared well-known principles of thd civil law, but not all of them, and it controlled in cases where the application of other well-known rules and principles did not deny the action or defeat recovery. As amended, it should have the same construction and be given the same force. Before the act of 1855, it was not contended, nor could it have been successfully contended, that the

article was applicable as against a municipal corporation to recover damages to either person, life, or property resulting from the acts of mobs and riotous assemblages. For these reasons, we are clear that neither expressly nor by implication does it now give a remedy in damages against a municipal corporation for negligence in preserving the public peace resulting in the loss of life by the acts of a mob.

As we find no law of the state of Louisiana giving a remedy in damages against a municipal corporation for the acts done by a mob resulting in the loss of human life, we are compelled, to reverse the judgment of the court below.

In the exceedingly able and interesting brief, showing great industry and research, presented to this court by the learned counsel for the defendant in error, it is said: "Tlie question here presented is not a street fight or murder, without any premonition on the part of the city authorities, and without culpable neglect In the discharge o£ their duties; nor is it the case of a police force, in its attempt to quell an insurrection, being overpowered by a mob.

But, on the contrary, we have the extraordinay spectacle of a mob organizing in a city of a quarter million inhabitants, to the knowledge' of the authorities, and ■without any efforts to disperse them; marching? down the streets for a distance of a mile, armed, and in broad daylight; taking possession of a city building, and killing its inmates, for an hour or more, and until their thirst for blood was satiated, — a deed unparalleled and unheard of in the history of the world." Before entering judgment, we feel called to. say that we ex-c< odingly regret that Ihe conclusions of ihe learned counsel oil the law’of the case as otherwise discussed in their brief are not as well founded as is their just indignation in considering the facts; and we think it proper, in view of the well-known facts a I tending the Italian lynching in the city of (New Orleans in 1891. to reproduce part of what was so well said by the supreme court of (he knifed States in Ex parte Wall, 107 U.

S. 265-274, 2 Hup. Ct. 569, in regard to lynching: "it is not, a moro crime against the law; it is much more than that. It is the prostration of all law and government; a defiance of the la,ws; a resort to the methods of vengeance of those who recognize no law, no society, no government. Of all classes and professions, the lawyer is most sacredly bound to uphold the laws.

He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot, and to ignore the very bands of society, argues recreancy to his position and office, and sets a pernicious example to Ihe insubordinate and dangerous elements of the body politic. It manifests a. want of fidelity to the system of lawful government which he has sworn to uphold and preserve.

Whatever excuse may ever exist, for the execution of lynch law in sa-vage; or sparsely settled districts, m order to oppose the ruffian elements which the ordinary administration of law is powerless to control, it «irlainly has mi excuse in a community where the laws are duly and regularly administered.'’ The judgment of the circuit court; is reversed, and the case is remanded, with instructions to maintain the exception of non-liability, and dismiss the plaintiff’s petition.