The times. [volume] (Richmond, Va.) 1890-1903, 1897-04-16
THE CITY is NOT LIABLE.
Decision Of The Supreme Court in the
Terry Case.
SEVERAL OTHER IMPORTANT OPINIONS
Cases Involving Equity Jurisdiction,
statute Of Limitations; Indefinite Be
quests of Lxoeptions-String-
fellow Va, Wise--The Digests.

Wv" '''' i'ii'NtiS Opinions yesterday +.
Terry vs.. the City OF Richmond
Affirmed. opinion by judge Riley.
The Richmond and Chesapeake
Railroad Company obtained "A char
ter TO build railroad from
the city TO a point ia the BAY. and Tie
CITY Council adopted an ordinance autho-
rzing the company to enter the city and
Construct a tunnel under .sigata street
IL began the tunnel. stopped w-ik on it,
ana the tunnel gave way ia the 'crue
OF the street which cavcd y ANA Cau cd
the earth to recede from the front Of Ter
~ lot and greatly injured two t,Le-
ments therein. Suit agains; The ciu Tor
damages and the question is whether The
city Is liable for the wrongful acts of The
company.
Held. The companys Charte having
been granted by tho sovereign power.
OF the State, and the city charter autfo-
rizing IL 10 permit the company 20 enter
and use IT'S streets for It's roadway, the
legality of the action Of the Council is
beyond question. and no liability there
fore can be maintained. The scrvitude
on the street. whether the road run on
or under IL. is the same. city Of Chicago
rs Kumsoy 81 Ill.,, S6i
The construction OF the road was sole
j. the undertaking of the company which
was in no sense the agent OF the city.
The permission a. use the streets con-
ferrcd no right on the company TO take
or invade the property Of any citizen
without just compensation or sanctioned
any tort committed by IT, The mere en-
actmcnt of an ordinance granting the
privilege OF occupancy Of the streets,
gives no cause of action for damages
against the municipality. Elliot on
II..a. .Na p
Xcnia. A Ohio, 207. The right TO cOmpon-
satlon for damages is against tho COM
pany and not the city. Burkham rs.
-. Is NJ Railroad Company l22 lnd"5ii
FIRTH SIS. Dubuque A.. Iowa 400.
g. The bond Of indemnity taken by the
city did not operate TO impose "a habi-
lty on the city which would not otherwise
have existed, nor make 1t responsible
for damage done by the company where
the law would not make IL liable in the
absence Of such bond. Taking the bond
oid not increase the liability Of the city.
The asst OF the ciu complained Of in the
case was the exercise OF delegated gov
crnmcntal power, and the case Is diuer-
cntiated from cases cited, decided by this
Court-in each and all Of which the lia-
bllity was based either upon a tort COM
mitted by the city itself through IT'S oiii-
perform some ministerial and absolute
corporate duty. In no one of these was
the question involved, which is present
ed ia this case. The municipal corpora
ton must see that its streets and side
walks are safe. its sewers and drains in
good order and it's other like munich
pal obligations cared for, Tor these are
purely ministerial and absolute corpo-
rate duties assumed I'm consideration or
chartered privileges. and the law holds
the municipality responsible iol the neg
lect OF such duties, or the negusehl
discharge Of such duties, or the ntbHseh'
omission TO discharge them, but 10 cA-
empts IL from liability for the exercise
or governmental OF discretionary powers
CITY OF X. VS.. Ions admir-. IL wait
2-5, CITY OF p. VS.. Applegarth's admir-,
. Watt. 3i3. and other cases clied.
Strinefellow VS.. Wise &c. Ailrmed'
Opinion by Judge Cardweh.
This case involves only certain at
tempts to form a partnership and states
no new principle of law OF fact OF inter
est 10 the public or the profession
EQUITY JURISDICTION.
The Manly Manufacturing Company vs..
Broadus and Parks. Reversed. opinion
by Judge Keith, president.
3. and T.. citizens and taxpayers all
lege in their bill that the Board OF super
NlsOrs Of Page county contracted win the
Manly Manufacturing Company Tor the
construction of jail and jaller resi-
dence for $500. There was written con-
tract. with right reserved therein, 10 the
board, TO make changes and alterations
in the character and quality of the work
40 fair valuation, TO be agreed on IN
writing in advance, and other features
~. of
reason Of alterations approved by the
board. and others sanctioned only by its
individual members. but not by the board
acting as such, the cost Of the Buildings
was Increased TO about $500
ID is further alleged that the work was
so imperfect that the building is going TO
ruin. and that a most pertlnacious and
adrOit attack Of mixed persuasive and
mcnaces has been brought 20 bear upon
the board 10 induce written commitments
90 these unlawful demands: and while
The members Of the board are men of in-
tcgrity and honesty. yet unless some im-
mediate remedy is applied. it may yield
20 tho cunning wies and devices Of Man
ly The prayer is that certain named
persons. described as members Of the
Board of Supervisors of Page, and the
Manlcy Manufacturing Company, of Dal-
ton. Ca. be made parties defendant; that
the board be cnJoined from accepting the
building Tin completed according TO con-
tract. "a correct account ascertalned. the
property freed from claims for material
and labor. FOR a receiver TO take charge
and keep the buildings from going 10
ruin; and pending the litigation that the
county might occupy the building SUBJ
- TO the supervision of the receiver
without being committed thereby 90 an
acceptance Of the same until completed
as per contract
Decree directing Sheriff TO put super
Ylsors iu possession OF building yard. &c,
without prejudice 10 questions involved
and ordering that process be served on
the Board Of Supervisors in Its official
character and appeal therefIom.
The main question is: Have these tax
payers right IN a Court Of Equity in
tho case under consideration?
Held .. The Board Of Supervisors is
clothed 10y law with the duty Of providing
a JAIL Code. Sec. 925 The Circuit Court
Sec. e5D SIS given authority TO compel
the board 10 perform this duty. but its
jurisdiction IS TO be exercised by manda-
mus. not by BIN In equity
o The board. as board u.s. vested the
requisite power 20 erect a Jail. which
involves authority 20 make all necessary
contracts to that end. and 10 make
changes IN the same. Individual mem
hers OF the board are without authority
in the premises.
The board. as q corporate body.
was not a party 20 this suit when the
decree was rendered slough II should
have been Stuart & T. vs.. Thornton.
% Va. 2l5 There is no avernent that n
was IN excess OF ITS authority In making
the contract or changing n. nor any