Culver v. City of Streator

Mr. Justice Bailey delivered the opinion of the Court: We are of the opinion that the several counts of the amended declaration, though differing somewhat in the character of their averments, all call for the application of the same principles. The fourth count, which is fullest in its allegations, shows that the injury complained of was caused by the negligent act of a party employed by the city of Streator to enforce a municipal ordinance forbidding the running at large, of dogs in said city without being muzzled, and providing that all dogs running at large contrary to said ordinance should be destroyed. This was clearly an ordinance passed by the city in the exercise of its police powers, and the injury was caused by the party employed to enforce such police regulations. The third count alleges that the injury was caused by the negligent and careless acts of the servants of the city while destroying dogs running at large contrary to a city ordinance; and the first and second counts allege, in substance, that the injury was caused by the negligent and careless acts of servants hired and employed by the city to shoot and kill dogs at large in the city, and which had not been by it duly licensed. The matter of regulating and restraining the running at large of dogs by a municipal corporation manifestly pertains to the police power. That power may be defined, in general terms,, as comprehending the making and enforcement of all suchi laws, ordinances and regulations as pertain to the comfort,, safety, health, convenience, good order and welfare of the public, and all persons officially charged with the execution and enforcement of such police ordinances and regulations are, quoad hoc, police officers. The pleader, in drafting the declaration, seems to have endeavored to obviate the conclusions to be drawn from the character of the duties which the officer in question was performing at the lime the plaintiff was injured, by designating; and describing him as a servant or employe of the city, and alleging that he was hired and employed by the city to perform said duties. Merely denominating him a servant or employe does not make him such in a sense calling for an application of the maxim, respondeat superior. Whether he was a servant or employe in that sense depends mainly upon whether he was employed to perform acts which the corporation could do in its. private or corporate character, or acts which the corporation was empowered to do in its public capacity as a governing-agency, and in discharge of duties imposed for the public or general welfare. Acts performed in the exercise of the police-power plainly belong to the latter class. Police officers appointed by the city are not its agents or servants so as to render it responsible for their unlawful or negligent acts in the discharge of their duties. Accordingly it has been held that a city is not liable for an assault and battery committed by its police officers, though done in an attempt to enforce an ordinance of the city: Buitrick v. City of Lowell, 1 Allen, 172; nor for illegal and oppressive acts of officers committed in the administration of an ordinance: Board of Trustees v. Schroeder, 58 Ill. 353; nor for an arrest made by them which is illegal for want of a warrant: Pollack’s Administrators v. City of Louisville, 13 Bush, 221; Cook v. City of Macon, 54 Ga. 468; Harris v. City of Atlanta, 62 id. 290; nor'for their unlawful acts of violence, whereby, in the exercise of their duty in suppressing an unlawful assemblage, an injury is done to the property of an individual: Stewart v. New Orleans, 9 La. Ann. 461; Dargan v. City of Mobile, 31 Ala. 469. Upon the same principle, it has been held that a city having power to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires, is not liable for the negligence of the firemen appointed and paid by it, who, when engaged in the line of their duty, upon an alarm of fire, run ft over the plaintiff, on their way to the fire: Hafford v. New Bedford, 16 Gray, 297; Wilcox v. City of Chicago, 107 Ill. 334; nor for injury to the plaintiff caused by the bursting of a hose of one of the engines of the city, through the negligence of a member of the fire department: Fisher v. City of Boston, 104 Mass. 87; nor for negligence whereby sparks from the fire-engine of the city caused the plaintiff’s property to be burned: Hays v. City of Oshkosh, 33 Wis. 314. In like manner it is held that where a city, under authority of law, establishes a hospital, it is not liable to persons injured by the misconduct of its agents and employes therein: City of Richmond v. Long’s Administrators, 17 Gratt. 375. See also 2 Dillon on Municipal Corporations, secs. 973-975, and authorities cited in notes. The ground upon which the foregoing cases, and many others of like nature, are admitted as exceptions to the general rule of corporate liability, is, that in those matters the city acts only as the agent of the State, in the discharge of duties imposed by law for the promotion,and preservation of the public and general welfare, as contradistinguished from mere corporate acts, having relation to the management of its corporate or private concerns, and from which it derives some special or immediate advantage or emolument in its corporate or private character. The police regulations of a city are not made or enforced in the interest of the city in its corporate capacity, but in the interest of the public. A city, therefore, is not liable for the acts of its officers in attempting to enforce such regulations. Caldwell v. Boone, 51 Iowa, 687; Prather v. Lexington, 13 B. Mon. 559; Elliott v. Philadelphia, 75 Pa. St. 347; Board of Trustees v. Schroeder, supra. The injuries complained of in the declaration having been caused by the negligence of an officer or employe of the city while attempting to enforce a police regulation, the maxim respondeat superior does not apply, and the demurrer to the declaration therefore was properly sustained. The judgment of the Appellate Court will be affirmed. Judgment affirmed.