City of Orlando v. Pragg

Citations

• 31 Fla. 111

Syllabus

<p>Abatement of nuisance by municipal corporations—no liabil ITY FOR ACTS ULTRA VIRES—PLEADINGS.</p> <p>1. A municipal corporation is not liable for tortious acts committed by its officers and agents, unless the acts complained of were committed in the exercise of some corporate power conferred upon it by law, or in the performance of some duty imposed upon it by law. Such a corporation is liable in damages for a lawful and authorized act of its agents done in an unauthorized manner, but not for an unlawful or prohibited act.</p> <p>2. Where the declaration, in a suit intort against a municipal corporation, does not show upon its face, that the acts complained of were such as to be wholly outside of all corporate powers or duties, or that, from their nature, were impossible of commission by the corporation in the exercise of any corporate power conferred upon it by law, or in the performance of any duty imposed upon it by law, it is not subject to demurrer on the ground that the acts complained of ,were ultra vires.</p> <p>3. If the act complained of be such that the corporation could not commit it under any circumstances in the exercise of any power or authority conferred upon it by law, then it is ultra vires, and the municipality cannot be held liable therefor; but, if the act be not ultra vires in the sense that it is not within the power or authority of the corporation to act in reference to it under any circumstances, then it can be held liable therefor.</p> <p>4. The power conferred, in general terms, on municipal corporations to prevent and abate nuisances, cannot be tafeen to authorize the condemnation of that as a nuisance which, in its nature, situation, or use, is not such in fact. And if the city, acting under the general power, abate that as a nuisance that is no¿ such in fact, it does so at its peril, and is liable for the damage done, if it turns out in proof that it has made a mistake.</p> <p>5. Where the fact of nuisance is clear, the city is then