Opinion
July 3, 1953.
Bernard Schwartz, plaintiff, per se.
J. Edward Lumbard, Jr., U.S. Atty. for the Southern District of New York, New York City, for the United States. Samuel R. Pierce, Jr., Asst. U.S. Atty., New York City, of counsel.
Bailey E. Bell, of Bell Sanders, Anchorage, Alaska, for plaintiffs.
Ralph E. Moody, of Kay, Robison Moody, Anchorage, Alaska, for defendants.
Plaintiff has commenced an action against various Selective Service System officials for a declaratory judgment and an injunction claiming that his selective service classification is erroneous as a matter of law and that he is thereby deprived of certain constitutional rights. Plaintiff now moves for a temporary injunction. He concedes, as I think he must, that there are many authorities that do not permit judicial review of such classifications before induction. While this form of proceeding was not involved, various appellate courts have stated the rule to be that selective service classifications cannot be reviewed by the courts until the administrative process has been completed. United States v. Mancuso, 3 Cir., 139 F.2d 90, 91; Falbo v. United States, 320 U.S. 549, 554, 555, 64 S.Ct. 346, 88 L.Ed. 305; Billings v. Truesdell, 321 U.S. 542, 558, 64 S.Ct. 737, 88 L.Ed. 917; United States v. Kauten, 2 Cir., 133 F.2d 703, 706, 707. One of the reasons for this rule is that the Congressional intent was to keep the administrative process of the Selective Service System free from the delays and disruption incident to court interference prior to induction, United States v. Mancuso, 3 Cir., 139 F.2d 90, 91. While I fully recognize the dilemma in which this places this particular plaintiff, none of the cases he cites stand for any different rule and I can find no basis for making an exception in this case. It appears that the plaintiff's remedy is by way of habeas corpus after induction or by refusing to be inducted after the administrative process is complete, Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. I do not think that the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq., requires a different result. See Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603. Holding these views, I must deny plaintiff's motion for a preliminary injunction. I think that these views also require me to deny any stay pending appeal of this decision.
This is an action for damages against the defendant City and its building inspector for alleged negligent and fraudulent delay in issuing a building permit to plaintiffs, and for the loss of plans and specifications submitted with the application for the permit. Each defendant has moved to dismiss the complaint for failure to state a claim.
It is well settled that, in the absence of statute, a municipality is not liable for the tortious acts of its officers committed in the performance of governmental functions, City of Miami v. Bethel, Fla., 65 So.2d 34; Rittmiller v. School District, D.C., 104 F. Supp. 187; City of Midland v. Hamlin, Tex.Civ.App., 239 S.W.2d 159, 25 A.L.R.2d 1048; Clinard v. City of Winston-Salem, 173 N.C. 356, 91 S.E. 1039, and it clearly appears that the licensing function is governmental. City of Winston-Salem, supra; James v. City of Toledo, 24 Ohio App. 268, 157 N.E. 309; Akin v. City of Miami, Fla., 65 So.2d 54.
The common-law rule referred to is in effect in this jurisdiction, Section 56-2-2 A.C.L.A. 1949, from which it follows that the defendant City is immune from liability for the alleged negligence of its building inspector, the co-defendant here. The obvious remedy by way of mandamus to compel the building inspector to act, was not resorted to.
Turning to the co-defendant Chitty, who, it is alleged, wilfully and fraudulently delayed the issuance of the permit, it would appear that he cannot claim the benefit of the City's immunity because a municipal officer, acting within the scope of his authority, with discretion and in the performance of a governmental function, is protected from civil liability only for errors of judgment or for negligence. Rehmann v. City of Des Moines, 204 Iowa 798, 215 N.W. 957, 55 A.L.R. 430; Lindemann v. City of Kenosha, 206 Wis. 364, 240 N.W. 373; Holgerson v. City of Devil's Lake, 63 N.D. 155, 246 N.W. 641; Browne v. City of Bentonville, 94 Ark. 80, 126 S.W. 93; Clinard v. City of Winston-Salem, supra.
I am of the opinion, therefore, that Chitty's motion should be denied, and that of the City granted.