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U.S. Supreme Court

Fowle v. Common Council of Alexandria, 28 U.S. 3 Pet. 398 398 (1830)

Fowle v. Common Council of Alexandria

28 U.S. (3 Pet.) 398


The plaintiff placed goods in the hands of an auctioneer in the City of Alexandria, who sold the same and became insolvent, having neglected to pay over the proceeds of the sales to the plaintiff. The auctioneer was licensed by the Corporation of Alexandria, and the corporation had omitted to take from him a bond with surety for the faithful performance of his duties as auctioneer. This suit was instituted to recover from the Corporation of Alexandria the amount of the sales of the plaintiff's goods lost by the insolvency of the auctioneer, on an alleged liability in consequence of the corporation's having omitted to take a bond from the auctioneer.

The power to license auctioneers and to take bond for their good behavior, not being one of the incidents to a corporation, must be conferred by an act of the legislature, and in executing it, the corporate body must conform to the act. The Legislature of Virginia conferred this power on the mayor, aldermen, and commonalty of the several corporate towns within that commonwealth, of which Alexandria was then one,

"provided that no such license should be granted until the person or persons requesting the same should enter into bond with one or more sufficient sureties, payable to the mayor, aldermen, and commonalty of such corporation."

This was a limitation of the power.

Though the corporate name of Alexandria was "the mayor and commonalty," it is not doubted that a bond taken in pursuance of the act would have been valid.

The act of Congress of 1804, "An act to amend the charter of Alexandria," does not transfer generally to the common council the powers of the mayor and commonalty, but the powers given to them are specially enumerated. There is no enumeration of the power to grant licenses to auctioneers. The act amending the charter changed the corporate body so entirely as to require a new provision to enable it to execute the powers conferred by the law of Virginia. An enabling clause, empowering the common council to act in the particular case, or some general clause which might embrace the particular case, is necessary under the new organization of the corporate body.

The common council granted a license to carry on the trade of an auctioneer, which the law did not empower that body to grant. Is the town responsible for the losses sustained by individuals from the fraudulent conduct of the auctioneer? He is not the officer or agent of the corporation, but is understood to act for himself as entirely as a tavern keeper or any other person who may carry on any business under a license from the corporate body.

Is a municipal corporation, established for the general purposes of government, with limited legislative powers, liable for losses consequent on its having misconstrued the extent of its powers in granting a license which it had no authority to grant without taking that security for the conduct of the person obtaining the license which its own ordinances had been supposed to require, and which might protect those who transact business with the persons acting

Page 28 U. S. 399

under the clause? The Court finds no case in which this principle has been affirmed.

That corporations are bound by their contracts is admitted. That money corporations, or those carrying on business for themselves, are liable for torts is well settled. But that a legislative corporation, established as a part of the government of the country, is liable for losses sustained by a nonfeasance, by an omission of the, corporate body to observe a law of its own in which no penalty is provided is a principle for which we can find no precedent.

The act of Virginia, passed in 1792, authorizes a defendant to plead and demur in the same case.

This was an action on the case brought by the plaintiff in error against the defendants in the circuit court for damages charged to have been sustained by the plaintiff in consequence of the neglect of the defendants to take due bonds and security from one Philip G. Marsteller, licensed by them as an auctioneer, for the years 1815, 1816, 1817, and 1818, according to the alleged provisions of the statute in that behalf enacted.

The declaration and pleadings are fully stated in the opinion of the Court. The defendants filed a general demurrer and pleaded the general issue.

The counsel for the plaintiff objected to the defendants' demurring and pleading at the same time to the declaration, but the court overruled the objection, conceiving that it had a right to permit such a course of proceeding under the statute of Virginia, which is in these words:

"The plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defense."

The court then proceeded to consider the matters of law arising upon the demurrer, and decided that the declaration and the matters therein contained were not sufficient in law to maintain the plaintiff's action, and the plaintiff prosecuted this writ of error.

Page 28 U. S. 403

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