Korah v. City of Ottawa

Mr. Justice Walker delivered the opinion of the Court:. It is contended that the city of Ottawa had no power to pass the ordinance imposing the penalty for willfully or negligently injuring this bridge; that the legislature had previously conferred the power on the canal “ board of trustees,” to establish such rules, by-laws and regulations in relation to transportation on the canal, the conduct of boats and rafts, and the general police of the canal, as are usual or may he found necessary, and that this grant of power to the board of trustees was exclusive over the whole matter. It further appears that the trustees had acted under this authority, and provided for the imposition of a fine of not less than five, nor more than twenty-five dollars for an injury to any bridge on the canal, by any person navigating any boat or float thereon, as the superintendent may, in his discretion,- impose. The legislature, by enactment, in the charter of the city (Sess. Laws 1850, p. 300), conferred power upon the city council to establish, erect and keep in repair, bridges within the city. It authorizes them to impose fines, forfeitures and penalties for the breach of any ordinance; to adopt all ordinances necessary and proper for the regulation of the police of the city, and to carry into execution the powers conferred by the act, not repugnant to the Constitution of the United States or of this State. The power to keep the bridges in the city in repair, confers the authority to employ the means necessary to the end. And the imposition of a forfeiture for a willful or negligent injury to such structures, would be a very effectual and not an improper mode to aid in keeping them in repair. There can scarcely be a doubt, that under the authority to regulate the police of the city, they may impose fines and forfeitures for injury to public property within the city limits. And this power was conferred upon the city after the -passage of the law which empowered the trustees to act. And if the two grants of power are repugnant, the last expressed will of the legislature must control. It then follows, that the court did not err in excluding the rules adopted by the trustees as evidence on the trial below. The city council having acted, the penalties imposed or regulations adopted by the trustees could not have any effect upon the result of the trial. It was insisted that plaintiff in error was not liable, because he was not on hoard when the injury occurred. If he was not on board, his crew were, and they were under his command, and subject to his control. They were His servants, and he must be responsible for their acts, whilst in the line of their duty, to the same extent as if he were personally present and directing their actions. The master is always liable for the négligent or willful acts of his servant, when the latter is in his immediate employment, unless he forbids the act. The crew were under his immediate command, as the evidence shows, that he was giving orders at the time, and it can make no difference whether he was on the boat or the towpath. As commander of the boat, it was his duty to have been on board, or to have intrusted it to the management of a skillful, careful and competent person. And it therefore follows, that if the act was wantonly or negligently done, the master must be responsible. The jury have found that the act was negligent. The instructions present fairly the law arising upon the evidence, and the verdict is sustained by the proof. And the judgment of the court below is affirmed. Judgment affirmed.