City of Richmond v. Smith
82 U.S. 429 (1872)

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U.S. Supreme Court

City of Richmond v. Smith, 82 U.S. 15 Wall. 429 429 (1872)

City of Richmond v. Smith

82 U.S. (15 Wall.) 429

Syllabus

The Council of the City of Richmond, towards the close of the rebellion and in anticipation of the entry into the city of the forces of the United States, which were then beleaguering it, passed a resolution that the stock of liquors in the city should be destroyed by committees to be appointed to do this, who should give receipts to the holders; the council pledging the faith of the city to the holders for the value. The stock of S was destroyed accordingly. Almost immediately afterwards, the Confederate government, against the protest and remonstrance of the city council, set fire to certain tobacco warehouses and other buildings

Page 82 U. S. 430

near the premises where S bad his liquors, whereby the premises of S. and his liquors were destroyed. S. sued the city, counting specially on the resolutions, the destruction of his liquor and stating that he bad no receipts. The city demurred. The court overruled the demurrer.

The defendant then pleaded specially the fact of the firing of the tobacco warehouse &c., near to S's premises, and that at the instant of destruction the premises were about to take fire from the tobacco warehouses, and did in a short time thereafter actually take fire; that the city had no means to extinguish that fire, and that the liquors were consumed, and would have been consumed by the fire if the committee had not destroyed them, and that so they were of no value to the plaintiff. The plaintiff demurred. The court sustained the demurrer.

The parties now went to trial, when they agreed to waive a jury and to submit all questions of fact to the court,

"with authority to draw all inferences and conclusions that a jury is authorized to draw from the evidence, and with liberty to either party to except to the judgment in the same manner and to the same extent that he might except to the verdict of a jury, and to object to the same for the same reasons and with the right to appeal from the same."

The court found for the plaintiff generally.

Held (the highest state court of Virginia having in a similar case held the city liable):

lst. That the declaration was good -- in other words, that the action lay against the city.

2d. That the special plea was bad -- in other words, that the fact that the plaintiff would have lost his liquors in any event was no defense.

3d. That the defendant could not under the agreement raise any questions as to the effect of evidence &c., in this Court, with a view of making this Court find as true the facts set forth in the special plea, which plea, as above mentioned, if true, was declared to be no defense.

On the 2d of April, 1865 -- the rebellion then in throes and the city of Richmond lying open to the entry of the government troops that had beleaguered it -- its council, in order to prevent drunkenness and some of the horrors incident to the occupation of a town by an invading army, passed certain resolutions, hereinafter set forth, for the destruction of all liquor in the city, and pledging the faith of the city to the owner for payment of its value. A stock of liquor owned by one Smith was thus destroyed, and on the suppression of the rebellion and return of peace, Smith sued the city accordingly.

Page 82 U. S. 431

The declaration contained two counts -- one special and the other general. The special count alleged that

"Whereas, on the 2d of April, 1865, in the then condition of the government and army of what were then called the Confederate States of America and in contemplation of the said army's giving way to the army of the United States of America, there was held in the said city a meeting of the council of the said city for what was then considered a work of necessity, and at the said meeting the council of said city adopted certain resolutions as follows:"

"1. Resolved that it is the imperative duty of this council, in case of the evacuation of this city by the government and army, to provide as far as it can for the immediate destruction of the stock of liquor in the city."

"2. Resolved that a committee of twenty-five citizens in each ward be appointed by the president to act on behalf of the city and proceed at once to accomplish this object, that said committee destroy, on the premises, all the liquor they can find, giving receipts for the same to the holders."

"3. Resolved that the faith of the city be, and is hereby, pledged for the payment of the value of all liquor so destroyed to the holders of said receipts."

"And the plaintiff avers that during the evening of the same 2d day of April, 1865, and the morning of the next day, there did occur such evacuation of the said city by the government and army as was contemplated by the first of said resolutions, and that a committee was appointed, according to the second of said resolutions; and that, on the 3d day of April, 1865, said committee did, in pursuance of said second resolution, destroy on the premises a large quantity of liquor found by them, and in most of the cases did give receipts for the same to the holders; and among the liquor so destroyed, and for which no receipts were so given, was a large quantity of whisky, brandy, rum, and alcohol, to-wit -- particulars given -- the total value of all which liquors amounts to the sum of $2,832, whereof the plaintiff was before and at the time of such destruction lawfully possessed as of his own property, by means whereof the faith of the said city was, and is, pledged for the value of all the said liquor of the plaintiff so destroyed, to the plaintiff, which value amounts to a large sum of money, to-wit, to the sum of $2,832, of all which the defendant heretofore, to-wit, on the 3d day of April, 1865, had due notice; by reason whereof the defendant became liable to pay to the plaintiff the said value, amounting,

Page 82 U. S. 432

as aforesaid, to a large sum of money, to-wit, the sum last specified, and, being so liable, the said defendant, in consideration thereof, afterwards, to-wit, on the day and in the year last mentioned, undertook and promised to pay him the same when the said defendant should be thereto afterwards requested."

To this special count the defendant demurred, but the court overruled the demurrer, the city excepting. A defendant, by the practice of Virginia, not losing the benefit of his demurrer by pleading over, the city then pleaded specially

"That at the time of the destruction of the liquor of the plaintiff and long prior thereto, it had been determined by the Confederate government to set fire to the tobacco warehouses and other buildings in said city, upon the evacuation of the city, against the protest and remonstrance of the said council, and that one of the said warehouses was situated near the premises of the said plaintiff; that in pursuance of the said determination, the Confederate government did on the day aforesaid set fire to the said warehouses and other buildings, whereby the premises of the plaintiff and all the property on them were destroyed by fire; and that said city had no means by which it could arrest and extinguish the fire; and that at the instant when the said committee were destroying the said liquor, the house of the plaintiff, in which the liquor was stored, was about to take fire, and did in a short time thereafter actually take fire and was consumed, and that the said liquors would have been consumed therein, as the said plaintiff was wholly unable to remove the same; and the defendant avers that the liquor of the plaintiff so destroyed by the committee as aforesaid would, if the same had not been so destroyed by the committee, have been consumed by the said fire; and that by reason thereof the liquor was of no value to the plaintiff, and by its destruction as aforesaid the said plaintiff has sustained no loss."

The plaintiff demurred generally. The demurrer was sustained.

The parties went to trial, agreeing to waive a trial by jury and to submit all questions of law and fact to the decision of the court

"with authority to draw all the inferences and conclusions that a jury is authorized to draw from

Page 82 U. S. 433

the evidence, and with liberty to either party to except to the judgment of the court in the same manner and to the same extent that he might except to the verdict of a jury, and to object to the same for the same reasons, and with the right to appeal from the same."

On the hearing, the plaintiff gave evidence to show the destruction and value of his liquor, and in showing this, they showed that he got no receipts from the committee, that they had no time to give them, and here rested.

The record now proceeded in these words:

"And this being all the evidence he offered, here closed his case."

"And then the defendant offered no evidence except evidence to prove the facts alleged and set forth in said special plea, but the court refused to receive said evidence and excluded the same, to which opinion of the court refusing to receive said evidence and excluding the same the defendant excepted and tendered this his bill of exceptions, and prayed that the same might be signed, sealed, and reserved to him, which is done accordingly."

"HUGH L. BOND"

"[SEAL] Judge of the Circuit Court of the United States for the 4th Circuit and District of E. Virginia."

The court found the facts generally for the plaintiff and gave judgment accordingly for $2,832, with interest from the 3d of April, 1865.

To this judgment the defendant excepted, and the case was now here on error.

In this Court, the case was submitted on printed briefs, the only error assigned in that of the plaintiff in error being that:

"The circuit court erred in overruling the demurrer to the special count in the plaintiff's declaration."

It is proper to mention that in the case of Jones & Co. v. City of Richmond [Footnote 1] on a suit against the city arising on the

Page 82 U. S. 434

same resolutions, the Court of Appeals of Virginia had decided that the city was liable to the holders of receipts given under the resolutions of the city council.

Page 82 U. S. 435

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