Evansville Journal, Volume 19, Evansville, Vanderburgh County, 28 April 1868 — Page 2

THE EVANSVT1 LE DAILY .IOURK A I TUESDAY. APRTL 23, 1S6S.

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ri k SITXEUir HURT DECISIS. Thf (My not Liable frr loss hy Fire Oiini,w! of Ju'ise Elliott in Full. Brinkmeyer and others City of Kvanville. Api vs. The from Vanderburgh Circuit Court. J Elliott, J. Complaint by BihikEieyer and others, partners, doiog business in the firm name of Brink'meyer & Co., against the City of Evansville, to recover the value of a building belonging to the plaintiffs, situate on lots within tha corporate limits of said city, used as an iron foundry, together with certain machinery and other property therein, which, were destroyed by fire. The Court sustained a demurrer to the complaint, and rendered final judgment for the defendant for costs. The plaintiff excepted, and appeals to this Court. The ruling of the Court on the demurrer is the error assigned. The complaint alleges that the city of Evansville is a corporation, organized under a special charter, approved January 27, 1347; that among t lie powers conferred on the Common Council of said city are: Fiist, ".To ordain, establish and put in execution such rules, by-laws, ordinances and regulations as shall be deemed proper or necessary for the good government of the city, and the well-being of the inhabitants thereof, .tc." Second. ' Especially to make, establish and regulate public wells, cisterns, reservoirs aad pump-, &c, to erect engine houses, to prevent and guard against damage by tire, to purchase fire engines and fire apparatus, to organize fire companies, and regulate and -govern the same, and to prescribe and regulate the duties and conduct of members of fire companies, nud other persons, in relation to fires." That the Common Council, in the exercise of the powers vested iu them, purchased and provided sundry engines, te be operated by the hands of men, and organized companies to propel and operate the same, and also purchased sundry steam engines to be used in extinguishing fires, and employed engineers, captains of companies, hose directors and uther persons to protect the property in the city against damage by fare, and to extinguish fires occurring within the city. That the Common Council, in exercising the powers aforesaid, regardless of their duty, negligently and carelessly failed to provide proper supplies of water, or good and efficient engines, or to cause the engines provided to be kept in repair and furnished with a suiaciency or gooa nose, negligently and carelessly ed unskillful, inefficient, and incompetent persons age, control, use and and also employe-artless to manoperate saia enginesana nose, and negligently and carelessly failed to provide proper and necessary means cf propelling said engines from place to place in the city. That while tha Common Council were so careless and negligent, &c, another house, at least filty feet from the hou-e of the plaintiff, was consumed by tire, and by reason of the failure ofthe Council to provide water.or to provide and keep in repair a 6ufBeient number of good engines, properly supplied with good hose, and by reason of the unskillfuhiess, carelessness, iucompetency.and negligence of the persons employed to control aad operate the eugines, and by reason of sail engines and hose being insufficient in number, and inefficient, defective, and out of repair, the heat, flames, and fire from the other house were communicated to, ignited and cousumed the houe and property of the plaintiffs. Wherefore they demand judgment for 118,000. The appellents' counsel state the following two legal propositions: 1st. When by law a municipal corporation possesses a power to be exercised for the public good, whether the language conferring the power be imperative or persuasive, it is incumbent upon the corporation to exercise such power whenever, and as soon as those who exercise the legislative functions of the corporation, shall deem it practicable to properly execute it. 2J. That when the legislative authority has determined that it is praeticab e and expedient to execute a power conferred, and the corporation enters upon its execution, the corporation and. its officers and agents are bound to exercise reasonable and ordinary care, skill and dilligence in executing it, and must respond in damages for any failure to do so. beveral cases are cited iu support of these propositions. The first of wructi is &ckh,vx., a, filt. (-lfy j action' against the city for' damages occasioned by back water in a stream, over railroad company had Will cou-!ru.?ted V iiu iu;uui'.-a-ui culvert, at n ..-,,-,f where the stream crossed a street over which the city had granted the' right of way to the railroad company. The culvert being too small for the free passage of water at all times, it was flowed back upon the plaintiffs premises, and caused the injury com. phiined of. The culvert not having been erected by the city, or for the public use.it was held that the city was not liable. It is said, in the opinion of the Court in that case, in discussing the question of liability of the city, that "thti law does not hold municipal corporations liable to individuals for the failure to exercise, or for -oper exercise o: every power

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I r lu'.y that may be conferred or en-ier-jjined upon them. Many

of the powers and duties ot such corporation? . , are in their uature legislative, and some are Judicial, while others are purely nii arterial. Where the duties imposed are of a legislative or judicial nature, and the proper exercise of them depends upon the judgment of those of whom they are required, the corporation is not responsible in damages, either for a failure to perform them, or for er rors in their performance. But where duties of a purely ministerial nature are positively enjoined on them by law, or arise by necessary implication, they are responsible for the damages resulting to individuals, either from a neglect to perform them, or from their performance in an improper manner." This, we think, is a correct enunciation of the law, in the class of cases to which it-is arrdieable. . The Rehext.-r. While Lead O mp my vs. thA-4Jity of Rochester , 3 N. Y. AG'X is the next case cited by the appellant. It was an actioato recover tor an injury to a quantity of white lead, situ ite on tho plaintiff's premises, resulting from the overflow of water, caused by the improper construction, by the city, of a culvert over a natural stream of water, and it was held that the city was liable. Lojj'i v. The Mayor, d'c of the City of 2ew York, 5, i . Y., is also cited. That was an action to recover the va'ue of a horse, driven by the plaintiff in the night time, into a pit excavated in one of the streets of the city, thereby causing his death. The excavation was made the day previous by the direction of a city officer having charge of the cleaning of public sewers, and was suffered to remain open during the nignt, without any i Imht to give notice of its presence. It was held that the city was liable. The appellant's counsel also refer to the case of Furze- v. The Mayor, i c.,of thr (,'i'y of New York, 3 Hill, 012. iu which it was held that the city, having constructed a sewer for public use, was bound to keep it in proper condition and repair. A municipal corporation is, for the purposes of its creation, a government possessing, to a limited extent, sovereiga powers, which, in their nature, are either legislative or judicial, and may be denominated governmental or Cublic. The extent to which it may e proper to exercise such powers, as well as the mode of their exercise by the corporation, within the limits prescribed by the law creating them, are of necessity entrusted to the judgment, discretion.and will of the properly constituted authorities to which they are delegated. And, being public and sovereign in their nature, the corporation is not liable to be sued, either for a failure to exercise them, nor for errors committed in their exercise. But when duties of a purely ministerial character are expressly enjoined by law on such corporations, or arise by necessary implication, they are responsible for any damages resulting to individuals from neglect to perform them, or from their performance in an improp?r manner. These two classes of duties and obligations are sometimes so intimately connected, that it is not always very easy to distinguish the one from the other. It is conceded by the counsel for the appellants that the power conferred on the city to organize and Regulate a fire department, for the purpose of preventing and guarding against damage by hre, is a legislative or judicial one, and that if the Common Couucil had deemed it inexpedient to undertake its execution, and had done nothing in reference to it, the plaintiffs would be without remedy. But the right to recover seems to be based on the idea that the Council, having undertaken to execute the power, or, in other words, to act under it, all else became mere ministerial duties, and that the city thereby became responsible that everything within the scope of the power conferred to render the fire department complete and efficient should be done; or, iu other words, that the power should be exercised to the fullest extent necessary to protect the citizens from loss by fire, and that any failure therein would render the city liable for such losses. We are not aware of any authority to sustain so broad a proposition, and do not think that any such can be found. A proper supply of water is quite as essential in the extinguishment of fires as proper fire engines, and one of the causes of complaint is that the Common Council "negligently and carelessly failed to provile proper supplies of water." Among the powers conferred upon the 'Council is "to make, establish and regulate public wells, cisterns, reservoirs ami pumps." Now it would seem difficult to contend, with any degree of plausibility, that because he Council should provide for the construction of wells and cisterns in one part of the city, where they re garded them as most needed in supplying water in cases of fire, they were therefore bound to construct wells !or cisterns in near proximity i0 every house in the remotest part of the city, as a safeguard againsMoss by fire, or be responsible for every such loss. Such, however, would be the result of the principle contended for. It is also alleged that the Council purchased sundry tire engines some of which were worked by men and others by steam, but that they were not g -j.nl and efficient ones; that they also fa; led fo supply a sufficiency of goou i..-.-e and the proper and necessary means of propelling them Irom p. ace to place. These were all matters resting in the judgment and discretion of the Council: they were in no sense ministerial obligations, and no liability devolves on the city from ock - Unchanged. A Notary

the manner of th .it exercise or errors of judgment committed therein.

ft I ! X.. 'J U c V Hi tl L i. I J Lii j ' J V . A V . which could, with any reason be re - garde as ministerial, are the aliened negligent failure to keep the engines in proper repair and the "unskiifulness. carelessness, incompetency and negligence cf the persons employed to control and operate them." If, however, there was not an adequate supply of water in the reasonable vicinity of the fire to extinguish the flames, as the plaintiffs allege, it ie difficult to see how the loss can be attributed to the want of care and skill on the part of the engineers, or to the fact that the engines were not in good repair, as both engines and competent engineers would have been useless without an adequate supply of water. But we place tr.e decision of the case upon broader grounds. It could not have been intended by the legislature, ,in conferring on the Council power to organize a fire department, that ley should thereby undertake abso lutely to prevent loss by fire in all cases, or become responsible as insurers in case of failure. Human skill and ingenuity are not competent to always re.-i.st the power of that destructive element, and the most that can be expected from the public authorities is the adoption of such means as may be reasonably within . their power to guard as far as they may against such losses, and aid in extinguishing such fires. These are all legislative or judicial in their nature, depending upon the wisdom and judgment of the Council, and cannot be theubject of legal liability to individuals. :. There is but little, if any. analogy between the powers and duties devolving on the-e municipal governments, in the organization of a fire department, and those in relation to the improvement of streets, and the construction of bridges, culverts and sewers. A street, when improved, is a public highway. open to the free ue of all, aod it is aa old and well-established principle that the corporation is bound to keep them in proper repair or condition, and is Tesposible for the damages cause by a neglect of that duty. The injury in such a case is readily traceable to its legitimate cause the improper condition of the highway, because it results directly from it. It is otherwise, however, in case of loss by fire. There the loss is caused directly by the fire, and nt by the want of skill in an engineer or from the fact that the engine was out of repair. These fact had nothing to do in igniting the flames. Possibly, if the engines had been in good order, and j in the hands of skillful engineers, all necessary aids concurring, the flames might have been arrested and the fire extinguished, and much of the dam- ! age thereby avoided. Mill, the want of skill on the part of the engineer, or the fact that the engine was out of repair, would only in a remote degree contribute to the injury. The uncertainty in such cases of tracing the failure to its proper and legitimate cause would necessarily introduce a species of most unsatisfactory and uncertain evidence and would result in practically making municipal corporations insurers against all losses by fire within their corporate limits. Fire departments have existed io the cities for time out of mind, and there is not perhaps a city in existence in which the corporate authorities have not exercised the power to use all proper means for the prevention of losses by fire. It is an important branch of such municipal governments, and has engaged their most earnest and serious consideration: and yet, notwithstanding the many millionsof property destroyed annually in cities by fire, the counsel have not referred us to a single authority for holding the corporation liable for such losses, and if any such exists, we are not aware of it. In our judgment, Loth reason and the soundest public policy forbid that such a liability should be imposed. The judgment is affirmed with costs. Kentucky Items. The Paducah Herald has been materially enlarged. The proprietor says tho enlargement is occasioned by the pressure of advertisements. Don't he mean by "pressed"" advertisements? Oscar Turner, Esq., is urged as a Democratic candidate for Congress, in the Paducah District. He is now a member cf the State. Senate from McCracken County. The Paducah Herald says the prices Eaid for tobacco in that city, have een higher all the season than in any other market in the est. We don't believe a word of it. The single men of the Paducah Quickstep Base Ball Club played a match game with the married men on Saturday last. The Louisville Journal fully expects the conviction of the President within three or four dys. It means that he is already convicted, but that three or four days will elapse before the sentence is announced. The White Fawn appeared for the first time at the Louisville Theatre ou Monday evening last. The Grand Division of the Sons of Temperance have concluded a State Conference at Newport, 'Ky. j A new school building was ar nro- ' priately dedicated by the colored people of Frankfort on Wednesday last. Eleven hundred and sixteen petitions in bankruptcy have been filed in Louisville. Public la the oMce. fan?9(lTfl

Louisville aud suburbs consumes nearly 400 barreis of whisky per week. A bad case of consumption.

Mr. B. W. Ilallaek has retired from the Bourbon Democrat, to become connected with the Louisville Journal. There is to be a public barbecue at Owensboro on the 30th inst. Hon. John Brown Young, Gen. Preston, and others are announced as speakers. The Odd Fellows of Frankfort celebrated the 49th anniversary of the organization of the order on Saturday with a processsion and appropriate exercises at one of the churcnes. The McCracken County Court has ordered the Commissioners to advertise for bids ti build a new jail for the county. The payments, it is stajted, will be nearly equal to c-a-h. A convention of the Fenian Brotherhood of Kentucky will assemble in Louisville on the 18th day of May next, at which Uen. O'Neill and other distinguished leaders will be present. The Leiderkranz Society of Louisville gave a grand dramatic entertainment at Concordia Hall, in that city, on Monday night. The Journal says that it is noticeable that since Louisville was blessed with two sets of police there have been fewer arrests than ever before. The Danville Advocn'e reports a horse mule two years old that measures fifteen hands two and a half inches high. Also a mare colt, aged twelve days, three feet six and a half inches high. A Mr. Adam Murphy, trear Bryantsville, Garrard County, was caught j by a saw in a saw-mill and so horribly j mutilated that he died in about two I hours. I j Lebanon, in Marion County, has I improved very fast during the past ! ten years, and since the construction of the Lebanon Brand Ilaiiroad, j property has been steadily on the io1 crea-e. Six years ago two acres in j the suburb was purchased for 13,000, which the owner now refuses to sell at ?0,(mmj. Our exchanges continue to bring in favorable reports about the probable yield of peaches, apples, pears, &o. It is even thought in some localities that the frost did more good than harm. In some localities, however, not more than the fourth of a full crop is anticipated. The Frankfort Commonwealth says that, during the past week, thirty boats loaded with coal have descended the Kentucky River, some landing at r ranktorjf; and others passing on to points below. Tn the words of the Louisville Jour7iat, "the beautiful and holy act of decorating the Confederate graves at Cave Hill Cemetery with Spring's sweet flowers," was performed on Saturday afternoon. Another item in the same paper complains that some front yards on one of the principal streets had been robbed of flowers and shrubbery. The Lexington Observer and Reporter says the failure of the Democratic party to defeat the laws of Congress was because it did not threaten armed resistance. That party did threaten armed resistance it did actually resist but nobody was scared, and the resistance was crushed. We are confident the party don't desiie to try the experiment again. Four counterfeiters, John II. Gorley, L. Gorley, J. G. Kusterer, and Christopher Englebert, were arrested in Louisville on" Tuesday, charged with making and passing counterfeit money. The detectives traced the manufactory to the grocery store of John 11. Gorley, on Market Street, between Brook and Floyd, where Gorley was arrested by the United States Deputy Commissioners. His son, a boy of sixteen, and the other parties were arrested soon after and lodged in jail. The U. S. Marshal searched Gorley's house yesterday, and found all the apparatus for making the scrip up stairs. Kusterer, who is a lithographer, confessed yesterday morning that he engraved the stones and printed the money. CARPETS. C A. R P E T WAREHOUSE. VM. E. FRENCH & CO., Xos. 47 and 49 Main St., EVAXSVILLE. The largest and most complete assortment of IIonse-Funiihing Goods in the STATE OF INDIANA. In STYLE. DEKY ALL WEST. QUALITY, and PRICK, we ! Cumpkxitiox, tivr on ; la addition to all good.-?, we have our other lines of 40,000 Rolls WALL PAPER, at UNUSUALLY LOW FIGURES. By means of a NEW INVENTION" in the production of VOLl) PAKLOit H.li'EKS, w hich we control In this marfeet, we are now enabled to sell these ele gaut goods at about 25 PER CENT. less than the were ever before offered In this market. -ITE rs A CALL.-WI pr!7 dtf

STATIONERY.

JOHN II. SCOTT, JSookfceller, t ifalioiser Aim S h W 8DEALER, No. 53 MAIN' STREET, cor. Second, anlOdly Eva.n3VILX.ie, Ind. . CINCINNATI Xaper Warehouse. CHATFIELD & WOODS, M A A" V r A CTf K E It S AND WBOLKSALE PAPER DEALERS 77 and 79 Walnut Street, 'Keep constantly ou hand a coiuplete ashoriment of FLAT-CAP, FOLIO, DEMI, MEDIUM, ROYAL, A.0 SITER-KOUL FLAT LETTERS, various weight: FLAT COMMERCIAL AND P.ACKrJT NOl'i-X; Hublmrds GLAZED COVHl PAPERS Nos. I and 2; ulso. other brands, of all colors; PRIfcTEslN' CARD STOCK, 'n shfHts, colored and white; also. CUT CAKIjS, ia lull vurlf-ty of qualities and sizes. RULED LETTER, NOTE, AND CAP PAPERS,Various weights and qualities. manufacture: a OF PAPER BAGS & FLOUR SACKS, All sizes and n urn hers, lirt quality of pit per. -"Wmu Piper. Manilla Pit per. Hook Paper, Wrapping Paper, Co oreit J outer Paper, Jam 1-aper, Starch J'aper, Candle .Paper, Tar Iloai 1L1, Straw Board. Tjcatliers of all Kinds For Binders ue, together Willi TOOLS aud J!I.MKS' MACIll-VKKV, All of which .we uffcr at lowest market prices. Orders by mail promptly filled. CII.ATKIKLD A WOODS. 77 and 79 Walnut street, Cincinnati. mar21 dtf FISH & BARTER, Wholesale Booksellers & Stationers, SCHOOL BOOKS, BLANK BOOKS, MISCELLANEOUS BOOKS, PAPER ENVELOPES, AND General Malionery, No. 11 Main .Street, EvansTille, Indiana. July91y IIEALY, ISAACS & CO MANUFACTURERS AND JOBBERS IN BLANK BOOKS OF EVERY DESCRIPTION. Job Printers A Bookbinders. Wholesale and Retail Dealers la STATIONERY, SCHOOL AND MISCELLANEOUS BOOKS. No. O INortU First St., (At R. F. Barter 4 Co.'s old stand ,) EVANSVILLE, IND. Home-made Blank Books always on band, and made to order on short notice. MuHtc, Magazines, and Periodicals bound In any style, marl4 jam P. SEJIONIK. GEO, L. BIXOX. T. J. HU1CT SE.U0MX, MX0X & CO. Evansville, Ind., Jan. 1, 18C8. HAVE. THIS DAT. AiSII(l. ated ourselves together ;or. the pur pose o: doin? a Wholesale Boot 'und iSfioe Businesn, in tills city, under the firm name of jsemomu, Dixon & Co. ; also, for doing a manufacturing business in the town ol Abingtou, Massachusetts, under the firm name of Hunt. Seiuoniu & Co., office ai 147 Peari street, Boston. P. HEMO.VIN. GEO. L. L1XON. T.J.HUNT. Evansville, Ind., Jan. 1, 18C8. I have, this day, admitted as co-partner in my present Bwt and Shoe Butinett, 1' this city, and also in tl e manulacturir business, iu Abinglon, Massachusetts Geo. L. Dixon aril i. J. Hunt, as will t seen by tne above card, giving the fin names aud t hPir objects. Mr. Hunt, who has a life-long experience la t lie manufacturing business and a number one judge ol Boots and Shoes, will devote his wii' le lime to manufacturing expressly for the Evansville House and tne purchase of such goods as we Uo not expect to make ourseivts. The firm, by this new arrangement, wii; pos.-ess advantages -vhich but few house can claim, and will be able to offer inducements to our trade, bolh as regards pricet and quality. The object of the different members of i the firm in this association is not to do business for a day. but u lifetime: and. to accomplish their objects, they expect to do business upon correct principles, thereby meriting a full snare of the trade. 1 o my old patrons, I return my sincere thanks for their liberal psrtronaire, am' hope, by close attention, to merit a con tinuance of the same In the future. Very respectfully, 1an7 J. s;mo.viiv. Visiting Cards, printed on Fil dc Linge, Bristol Antique or Wooden Cards, at our Job Rooms, second floor of Journal building.

COIViJEI

i ; r,v Co xii merei ill II -t-olcors, PRjDI'CE a-d COMMISSION MERCHANTS So. 4 SYCAMORE STREET, marll d3m EVAXSVH.LB. FRED. Pi. IIUST0X & CO., X0. 5 NORTH WATER STREET, EVANS VILLE, INDIANA, FORWARDING & COMMISSION -AND OIrVlIt.VT., AGENTS White Line Central Transit Conip'y. All property snipped by this Line goes through in loc'Kea ana healed cars, wltlv out reliaudlm or transfer. ft-bilSm exurt. Having dlSKoIwd my connection with the late firm of R. K. I'nnkerson A Co., I intend to devote my attention to the interests Of the above Jieliable Line, and can promise my friends quick time, carelui handling, and cheap rates. lebil ALEX AN UK R WILSON. AVER'S HAIH VIGOE, For the Renovation of the Hair. The GREAT DESIDERATUM Of the Age. A dressing which h at once agreeable, healthy, and effectual for preserving the hair. Faded or gray hair is soon restored to its original color, and the gloss and freshness of youth. Thin hair is thickened, falling hail checked, and baldness often, though not always, cured by its use. Nothing can restore the hair where the follicles are destroyed, ot the glands atrophied and decayed. But such as remain can be saved for usefulness by this application. Instead of fouling the hair with a pasty sediment, it will keep it clean and vigorous. Its occasional use will prevent the hair from turning gray or falling off, and consequently prevent baldness. Free from those deleterious substances which make some preparations dangerous and injurious to the hair, the Vigoi can only benefit but not harm it. II wanted merely for a Ilaili- Dressing;, nothing else can be found so desirable. Containing neither oil uor dye, it does not soil white cambric, and yet lasts longer on the hair, giving it a rich glossy lustre and a grateful perfume. PREPARED BY . DR. J. C. AYER & CO., Practical and Analytical Chemists, ' I.U1VEU, MASS. rachT d6m (2m PRICE 81 OO. New Bookbinders' FumisliiBg House. JOHN R. H00LE & SON, Importers, Manufacturers, and Dealers la Bookbinders' Slock, TooIh iixi1 3a.cliiiiei"y, 50 MAIN STKF.ET, marl3 d3m CINCINNATI. OHIO. WM. C. TURN0CK & GO., 13 It ASS FOUNDERS, Gas and Steam Pipe Fitters, Corner Tine and First Streets. Cash paid for old Copper and Brass. wzr Dealers in an iiaas oi urass lockj Whistles, and .Steam Gauges. 1'artleula; attention paid to repairing and adjustin; Steam Gauge f lune tf Notice. n cojfi'iv '.Villi THE WISHES 1 of many of my lady customers, I am willing to open, on the 1st of May, a rtchool of Instruction for all branches of tine and scientific Needlework. Applications to be made at my store, on Second sjtreet. bei tween Main and Locust. I aj?rlOdlw MRS. CH. KUECHLEB.