Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-01-15
THE CITY NOT LIABLE
corRr or APPEALS DECIDES THE
WALLACE BRANDY CASE.
COULD NOT CONTRACT At THAT TIME
,,,tor Gafncs's Administrators Suit
AGAINST the Auditor Faiis-A Man
.ousc of Lack of Evidence.

e.,remc Court Of Appeals yesterday.
,sere is closed a chapter in history which
las been standing open FOR thirty-one
years.
Arrn ., 1865. was a dreadful day 10 the
ionic OF Richmond and the entire South.
q, WAS on that night that the Federal
..r,cs entered this city. a few hours
...,r 10 - evacuation the City Council
..rycned and directed that twenty-five
.tzens from each ward be appointed
..1.stroy Immediately the stock OF liquor
, t6e city. In doing this some eighty
t,. barrels Of apple brandy belonging to
,f~ Gustavus A. Wallace was poured
aft upon the streets. The object Of the
INV in destroying this and other liquor
yrs TO prevent 1t from falling into the
hands Of Federal soldiers and causing
-.,m TO commit greater depredations than
tlly otherwise would.
ISL Wallace brought suit in the Cir
,. Court Of the city Of Richmond to
recover damages TO the extent Of $4,000
..ause of the personal loss he had sus-
Gained in the destruction Of his brandy
Tfe Circuit Court rendered judgment
Or the defendant. and the case came TO
,.. suurcme Court OF Appeals. The
,.fr.on of this court which was rendered
Yesterday, was prepared by Judge Calu-
,..u. and IS quite lengthy. II begins by
saving that the main question IS: DID
re council have the right. under the law
90 direct the destruction of the plaintiI
l..gor and bind the city TO pay him for 1t?
Tvo aljudged cases, growing out OF the
r...rtctlon of liquor on April ?, 1860, are
,.t.rroi to- They are those OF Jones
,..frst the City of Richmond GSth Graf
l.r SID. and Of the City of Richmond
ar.irst Smith Omitted States 10, Wall. 45O.
Tr4 opinion goes on 10 say
NAT a. cannot be seen that the
-r.nion in the last named case has any
CONTROLLING influence in the consideration
~ tho case at bar. the court, after
referring briefly 10 the Smith case goes
INTO The Jones case very lengtmiy
OPINION IN THE JONES CASE.
Speaking Of the opinion in this case
judge Cardwell says:
"Tre court in its opinion by RiVes,
D docs not discuss the first defence, but
rleosnlzing. as it would seem, the prln-
rfule contcnded for. proceeds TO MAIN
t.in that whatever might be the common
f.ps rule as 10 indemnity, the act Itself
y.qs one of eminent domain. IL quoted
from the charter provision, which au-
thorZcd the city 30 pass all bylaws,
rules. and regulation which they shail
deem necessary for the peace, comfort
convenience. good order, good morals
br.ltb on safety OF the city or Of the
reople. or property therein; also, That
provision prohibiting the city from
taking or using any private property LOT
rublic purposes without making 10 tne
owner or owners thereof just compensa-
lion for the same and held that the city
was liable under those two provisions.
The opinion of Judge CardweH takes
"a different view. 1t says mo authorl-
ties are cited in support of the construc-
ton given to the charter, and the opinion
recognizes that it is not sustained by
tbe adfudged cases. The view taken by
Tho court was that the general welfare
clause having conferred upon the city
the power of eminent domain, there were
two modes open TO the Council, hrst' 10
direct the destruction Of these sores
leaving the question of the citys habiily
10 be afterwards hugated and deter
mined. or secondly, assuming their ia
fiiitv 10 contract for the values destroyed
undcr their order, and that the Council
having adoptcd the latter mode, IL was
a matter of contract
DIDN'T TAKE THAT VIEW.
Judge Cardwen I'm this connection says:
"y-hue we recognize that one Of the pri-
mary and fundamental capacities OF
eornoration is to contract and be con-
tracted with, we find ourselves wholly
unable to concur i'm the view taken by
this court in Jones's case, that the char-
tsr of the city of Richmond IN icrce
April 2. 1865, conferred upon the Council
he power and authority in the exercise
NJ eminent domain to direct the destruc-
lion of the plaintiffs liquor and bind
the city 10 contract, or otherwise to pay
him for it," A long string OF authorities
are quoted from to sustain the court at
this point.
The opinion rendered yesterday says
that had the LIQUORS been destroyed by
authority of the State to keep them out
Of the hands Of the invading army, no
recovery of it's value could have been had.
The resolutions of the Council clearly
show that the LIQUORS were ordered TO be
DESTROYED I'm anticipation of riot law
a lessness, and the mob the suppression
of which pertains 10 the sovereign power
of the state. though confded 10 local
AGENCIES. the officers Of the city. Under
these circumstances and surroundings
saws Judge Cardwell, "the Council of the
c.tv undertake the destruction of all
LIQUORS within the limits Of the city, and
Co pledge the faith of the city TO pay for
them The power TO do this Is not, IN
OUT opinion. necessarily or fairly Implied
ia any express power granted TO the city,
ana its possession was not indispensable
So the performance of its corporate du-
ties. or the accomplishment Of the pur-
poses Of its Incorporation, whether the
provisions of its charter be construed
literally or according to the general rules
Of construction applicable 10 such
Statutes"
THE JUDGMENT AFFIRMED.
in closing his a1lo opinion, Judge Card
vel says. 1.-TWO adjudicated cases are
cited boz support Of the position that the
power Of eminent domain may be eXer-
csel in aid Of police pOwer-the one IS
lnrlfy rs. City of Boston. 100 Massa-
Chusetts 5lf: and the other Sweet VS.
kechel lJ9 United States, 596-but both
o. these cases arose in the State of Mas
fachusctts. where there are statutes au-
uorzing and regulating the exercise OF
eminent domain In aid of the police
power. We have no such statutes IN Nlr-
gn.a. Moreover if such were the case,
there could bc no exercise of the right
o. eminent domain In the aid OF the po-
lice power. unless the power OF eminent
domain was conferred upon the city by
SIS charter or the general statutes Of the
state. Our view Is that the right or
eminent domain was not conferred upon
he city by It's charter or general statutes
So ass 10 authorize il TO take or destroy
poe liquors within its limits on April 2
ho. in aid Of the police power or other
Vie and being without this power the
Promise 10 pay was ultra wires and, there
lore void.
Against the liability OF the city in the
case 40 bar the authorities are hume
',-' and. we may say. the line unbroken,
except by the decision I'm the Jones case.
.'c.son founded uDon a construction
W .ae charter Of the city unsustained by