McIlhenney v. City of Wilmington

Glare, J. The defendant demurred to the complaint that it did not state facts sufficient to constitute a cause of action. The complaint alleged that the plaintiff, while quietly sitting on the steps of the bank, and not in any manner violating the laws of the State or city, was arrested in a brutal manner by one Temple, a policeman of defendant city; that the plaintiff, when brought before the mayor the following day, was discharged, after trial, on the ground that he had committed no offense, and the policeman was reprimanded by the mayor; that the policeman (Temple) was no-^ torious for his cruelty and want of judgment in making arrests, having on previous occasions made arrests without justification and been reprimanded therefor, and that the mayor and aldermen who appointed him on the police force were acquainted with his character. The court below properly sustained the demurrer. The law is too well settled to admit of debate. It may, on a review of the authorities, which are uniform, be thus state.d: When cities are acting in their corporate character, or in the exercise of powers for their own advantage, they are liable for damages caused by the negligence or torts of their officers or agents; but where they are exercising the judicial, discretionary, or legislative authority conferred by their charters, or are discharging a duty imposed solely for the public benefit, they are not liable for the torts or negligence of their officers, unless there is some statute which subjects them to liability therefor. Moffit v. City of Asheville, 103 N. C., 237; Prichard v. Board, 126 N. C., 908; Hill v. Board, 72 *150 N. C., 55; Coley v. City of Statesville, 121 N. C., 316. In tbe present case tbe policeman was, as it were, a sheriff, or State officer, and tbe liability for any assault or tort committed by him was personal, as in tbe case of a sheriff. Tbe non-liability of municipalities in such cases is based upon tbe ground that they are subdivisions of tbe State, created in part for convenience in enabling tbe State to enforce its laws in each locality with promptness, and simultaneously, when occasion requires it, in tbe different subdivisions within its boundaries; and that while enforcing those laws which pertain to tbe general welfare of tbe State, and to tbe people generally in all its subdivisions, tbe State acts through these subdivisions, and uses them and their officers as its agent for the purposes for which a State government is instituted and granted sovereign power for State purposes; and, further, that the State has not made them the insurers of public or private interests, or liable for any careless or willful acts of its officers. “Police officers can in no sense be regarded as agents or servants of the city. Their duties are of a public nature, and their appointment is devolved on cities and towns by the Legislature as a convenient mode of exercising the functions of government; but this does not render the city liable for their unlawful or negligent acts.” Buttrick v. City of Lowell, 79 Am. Dec., 721. “If such officers are elected or appointed by the corporation, in obedience to a statute, to perform a public service, not local or corporate, but because this mode of selection has been deemed expedient by the Legislature in the distribution of powers, they are not to be regarded as the agent of the corporation, but as public or State officers, with such powers and duties as the statute confers upon them, and the doctrine of respondent superior does not apply.” Woodhull v. City of New York, 150 N. Y., 450. “With regard to the liability of a public municipal *151 corporation for tbe acts of its officers, the distinction is between the exercise of its legislative powers which it holds for public purposes and as part of the government of the country and those private franchises which belong to it as a creation of the law. Within the sphere of the former, it enjoys the exemption of the government from responsibilities for its own acts and for the acts of those who are independent corporate officers deriving their rights and duties from the sovereign power.” Commissioners, v. Duckett, 20 Md., 476. A case exactly “on all fours” is Craig v. City of Charleston, 180 Ill., 154, which says: “It is a familiar rule of law,, supported by a long line of well-considered cases, that a city, in the performance of its police regulations, can not commit a wrong through its officers in such a way as to render it liable for tort. It is contended, however, that the appellant does not base his right of recovery against the city upon the wrongful act of Apgar (a policeman) merely, hut upon the wrongful act of the mayor in appointing such a man as Ap-gar, when he knew, or-should have known, of his dangerous and vicious character. The same piinciple which absolves the city from liability for Apgar’s tortious act applies to the act of the mayor. The mayor was simply exercising a discre-toin vested in him by virtue of his office and the laws of the State. If the appointment was a wrongful act, which resulted in injury to the appellant, the burdens of liability can not be cast upon the inhabitants and taxpayers of the city. A municipal corporation, while simply exercising its police powers, is not liable for the acts of its officers in the violation of the laws of the State or in the excess of the legal powers of the city. 2 Dill. Mun. Corp. 950, 968; Town of Odell v. Schroeder, 58 Ill., 353; City of Chicago v. Turner, 80 Ill., 419 ; Wilcox v. City of Chicago, 107 Ill., 334; Blake v. City of Pontiac, 49 Ill. App., 543.” *152 Upon, reason and authority, the defendant city is exempt from tbe liability here sought to be imposed upon it equally whether it is for a tort or negligence, and whether the recovery is sought by reason of the misconduct of the officer in making the arrest, or in the act of the mayor and aldermen in appointing or retaining an unsuitable officer, with knowledge of his unfitness. In either aspect, the conduct of the officer is in the discharge of official and governmental duty, and the taxpayers of the city are not answerable in damages for official misconduct in the discharge of governmental functions in the absence of a statute making them so. It is true it is recited in Coley v. City of Statesville, 121 N. C., 316, that the municipality in that case had appointed suitable police; but that was only a circumstance to the credit of the defendant, and not a ruling, that if it were otherwise the town would be liable, for it is immediately added: “The defendant is liable only for failure to properly construct the prison, or to so furnish it as to afford reasonable comfort and protection from sufferings and injuries to health. Moffit v. City of Asheville, 103 N. C., 231; Shear, and R. Neg. (5th Ed.), sec. 291.” In this section of Shear, and E. Neg. and notes, the points involved in the present case are found fully settled. The reason the town is liable in the particular pointed out in Moffit v. City of Asheville is, as there stated, because of a statutory provision. The non-liability of a municipality for the torts or negligence of its officials, when acting within their governmental powers, is discussed, and held as settled, with citation of authorities. Dill. Man. Corp. (4th Ed.), sec. 975, and cases cited; Cook v. Mayor, etc., 54 Ga., 468; Bartlett v. City of Columbus (Ga.), 44 L. R. A., 795. The above and many other authorities to the same purport are presented in the excellent brief of Mr. Meares, whose labors have been *153 useful to tbe Court in preparing tbis opinion. Tbe policeman Temple, if tbe facts are as alleged in tbe complaint, is liable both civilly and criminally. Whether tbe same is true in regard to tbe mayor and aldermen, as seems to be intimated in State v. Hall, 97 N. C., 474, we express no opinion. Affirmed.