Gormly v. Town of Mt. Vernon

Bishop, J. It will be observed that the motion or resolution of the council was addressed to the marshal and street commissioner. The contention of counsel in argument is that as matter of law it was the duty of plaintiff to execute and enforce the orders of the council, and that in giving direction to the marshal and street commissioner to proceed he was acting strictly within the line of his official duty. Conceding for present purposes the proposition of law thus contended for, the situation presented by the first count of the petition, as related to the arrest of Young and what followed, may in fairness to plaintiff be stated thus: While acting in the line of his duty in directing the removal of obstructions in a street of the town, and conceiving that Young was unlawfully interfering with the performance of the work, plaintiff assumed to authorize Alexander to arrest him without a warrant; that upon being brought before 'plaintiff as mayor said Young was discharged for want of an information filed; that thereupon Young commenced an action against plaintiff for false arrest and imprisonment which action plaintiff was required to defend, and in which judgment was recovered against him which he paid. No argument ought to be needed to make it plain that out of this no cause of action arose in favor; of plaintiff against the town. On his own showing, plaintiff was haled into court and mulcted in damages because of his own unauthorized and unlawful act. That was the substance of the charge made against him, and such must be the effect given the judg [397] ment which he says was entered against him. It is certain on reason and authority that for the unlawful act of plaintiff in causing or being concerned in a false arrest and imprisonment of Young the town would not be liable to the latter in damages. Caldwell v. City of Boone, 51 Iowa, 687; McFadden v. Town of Jewell, 119 Iowa, 321. 19 Cyc. 336. It would be utterly beyond all bounds to say that in the case of an officer of a town, who errs as to his duty and commits an act not only unauthorized but unlawful, whereby another suffers injury and damage, a legal obligation arises on the part of the town to reimburse such officer for the costs, expenses, and damage imposed upon him in consequence of his wrong so done. No one of the cases cited in the brief of counsel for appellant is in conflict with this view. Counsel call our attention to several cases holding it to be within the discretionary power of a municipality to make reimbursement to an officer proceeded against as was this plaintiff. Among others are Sherman v. Carr, 8 R. I. 431; Cullen v. Town, 103 Ind. 196 (2 N. E. 571, 53 Am. Rep. 504); City of Murphy, 94 Minn. 123 (102 N. W. 219, 68 L. R. A. 400). And possibly such is the law. But there is a wide difference between an exercise of discretionary power to thus favor an officer and a fixed obligation which may be enforced by such officer in an action at law. What has been said above applies equally to the situation as presented by the averment of the action against plaintiff for a conspiracy. The wrong with which he was charged could not be said to have been connected in any way with a performance of official duty. No authority is cited to our attention, and we know of none, holding that the town can be compelled to reimburse him for costs and expenses thus incurred. As the claim set out in the second count of the petition, and held by plaintiff under assignment from Alexander, is similar in character to the one we have been considering, [398] the same may be considered disposed of by what has already been said. We conclude that there was no error, and the judgment is affirmed.