Merritt v. McNally

Pemberton, C. J., and Harwood, J., concurring.

In our opinion the complaint is not vulnerable in the points attacked by demurrer, as contended by .respondents’ counsel on the argument in this court. The interpretation that the clause of section 5 of the ordinance in question, which provides that “it shall be the duty of every inspector appointed under the provisions of this act to visit and inspect each and any house or houses, building or buildings, which may be in the course of erection, construction, or alteration within the limits of the city, and to see that each house or houses, building or buildings, are being erected, constructed, or altered according to the provisions of this ordinance,” lays upon the building inspector no responsible duty of exertion or action in his official capacity, and authority to inspect and demand of builders a compliance with the provisions of that ordinance, or, when “ seeing” the same violated, to lay such information before other agents of the city, for the purpose of putting in force the means provided by the municipality for the correction of the violation of its ordinances, is untenable. Such interpretation is neither conformable to the definition of the terms used, as shown by dictionaries of authority, nor in accordance with the common understanding of the force and effect of such a command of law applied to such a subject, or found in context like that under consideration, where, all the way through the ordinance, action is enjoined upon the inspector appointed and compensated to discharge the duties therein prescribed. According to the interpretation of counsel for respondents, the build*242ing inspector might “see” that the ordinance put under his monitory care was complied, with or violated with the same supine inertia on his part in either case. Under such interpretation, it would have been quite as well, or perhaps even better, as attended with less draught on the people’s revenue, and less danger and deception to inhabitants, arising from the expectation that he would see that any thing was done, for the. city to have appointed a stone or wooden statue, as to appoint a sentient being, to discharge the duties of building “inspector”; for, if respondents’ interpretation of the provisions of the ordinance declaring his duties is correct, whether seeing that the provisions of the ordinance were obeyed, or being utterly oblivious to that fact, amounted to the same thing, so far as responsibility on the part of the inspector to exert himself to demand obedience or cause arrest of violation went, because, under such interpretation, the inspector might “ see” dangerous structures rise up, in violation of the ordinance, to fall and destroy life and property, and yet neither demand compliance with nor report violation of the ordinance to other municipal authorities, in the attempt, at least, to prevent the mischief by setting in motion such means as the municipal government has provided to correct such abuse. This interpretation is not according to the common understanding of the effect of such injunctions of law, as found in the ordinance prescribing the duty of the building inspector.

The other point of objection urged against the complaint— that it does not show that respondent was clothed with the necessary power, or had at his disposal the means of enforcing the provisions of said ordinance, or arresting proceedings in violation of its terms—is not, in our opinion, well taken. Whatever facts in defense respondent may have to shield himself from liability for the injury charged to his negligence should be set up in answer. If he can show that having used the proper diligence in exerting the power of his office, and the other available means which may have been commanded, and having done his duty, the hurt, nevertheless, ensued without his fault, because there were no means of arresting the violation of the ordinance, or because other agents of the municipality did not pursue their duty, if it was necessary to call *243upon them, those facts are peculiarly matters of defense, to be set up by defendant’s answer. The complaint charges that the damage resulted from the negligence of defendant, in his failure to discharge certain duties pertaining especially to his office. That is the issue which he must meet, and if he .is able to show that the damage resulted, not from his negligence, but from other conditions, it is a matter of defense.

From a careful consideration of all the objections urged against the complaint, we think the demurrer should be overruled, and the order of this court will be entered accordingly.