Shriver v. Bean

Grant, J. (after stating the facts). Counsel for the plaintiff argues (1) that the plaintiff, acting for the city, had the right to remove the track for the purpose of paving the street; and (2) that, if he had not, still the defendant had no right to use a shotgun to prevent its removal. Counsel for the defendant argue (1) that plaintiff was not acting for the city, nor under authority conferred by it; (2) that the defendant had the right to resist the plaintiff and the others with sufficient force to prevent the accomplishment of their purpose. The question of intentional shooting has been disposed of by the 'special finding of the jury that the discharge of the gun was accidental. This finding removes from the case the question whether defendant had the right to intentionally shoot at the plaintiff or others in order to protect the property of the company, and prevent its destruction. Neither need we discuss the question whether the city, acting'through its proper body,- the common council, could remove the track without taking legal proceedings, upon the ground, as claimed, that the failure to comply with the ordinance operated ipso facto as a forfeiture of the franchise granted. It is contended on the part of the defendant that the failure to construct the track along the entire line was the^ fault of the common councils and not of the railway company, in that the delay was requested by the city for the reason that the street was not in condition. The resolution of forfeiture was passed — 512 — August 6, 1894. Counsel for the plaintiff does not point to any testimony in the record showing that a copy of such resolution was served upon the railway company, and we have been unable to find any. It is clear that, before proceeding to act under that resolution, notice thereof should have been served upon the railway company, and that it should have been given a reasonable time to comply therewith. Plaintiff was acting without any authority from the council. No record of any action by the council was shown directing him or the street committee to take up this taack. Even the street commissioner, who has general charge of the streets, can perform only such work as the council shall direct to be done. 1 How. Stat. § 2489. If it should be ftmnd upon judicial determination that the destruction of the property was illegal, would the city be liable in damages ? The answer to this question depends upon whether plaintiff was acting under the authority of the city. The common council can act only by resolution or ordinance duly passed, and found in its record. A municipality is not responsible for the acts of its officials unless they are acting within the scope of their authority. The common council had done no more than to declare the franchise forfeited upon the street in question, and had directed the company to remove its track upon being properly notified. No power is anywhere found in the statute authorizing the street committee to assume that the railway is a nuisance, and an obstruction, and to proceed to remove it by force without instruction. They have no more right to do it than would private citizens living along the street. The municipality had not authorized such action, and was not responsible therefor. Plaintiff was the promoter of, and was engaged in, an unlawful assembly, and was acting in violation of 1 How. Stat. § 2015, prohibiting work on the first day of the week. His sole purpose in so doing was to prevent the railway company from appealing to the courts to protect its rights. No process can be issued or — 513 — served upon that day. The courts are then closed to the citizen. 1 How. Stat. § 2019; 2 How. Stat. § 7250. Such conduct is not only unlawful, but is unjustifiable, in that it attempts to deprive a party of the process of the court to prevent the destruction of his property until it shall be judicially determined that such right exists. Citizens have the right to assume that the laws of the State will be respected, and that their property will be protected from wanton destruction on the day when the courts are closed to them. Such attempts to substitute force for orderly judicial methods are wrong in both law and morals, and cannot be too severely condemned. This is not a proper case in which to determine the legal rights of these parties. The railway company was in possession of its property, and using it. He who claims the right to invade this possession must first have that right determined by the courts. He cannot resort to force. In Iron Mountain, etc., R. Co. v. Johnson, 119 U. S. 608, Johnson was in the actual and peaceable possession of 18 miles of railroad, which was built by him for the company, and was running his own locomotives over it. He claimed the right of possession. The company disputed it, and ejected him by force. The court used this language: ‘ ‘ The party so using force and acquiring possession may have the superior title, or may have the better right to the present possession, but the policy of the law in this class of cases is to prevent disturbances of the public peace, to _ forbid any person righting himself in a case of that kind by his own hand and by violence, and to require that the party who has in this manner obtained possession shall restore it to the party from whom it has been so obtained; and then, when the parties are in statu quo, or in the same position as they were before the use of violence, the party out of possession must resort to legal means to obtain his possession, as he should have done in the first instance.” This doctrine was sustained by Denver, etc., R. Co. v. Harris, 122 U. S. 597, and the court in that case said: — 514 — “ The courts of the territory were- open for the redress of any wrongs that had been, or were being, committed against the defendant by the other company. If an appeal to the law, for the determination of the dispute as to right of possession, would have involved some delay, that was no reason for the employment of force; least of all for the use of violent means under circumstances imperiling the peace of the community and the lives of citizens. To such delays all—whether individuals or corporations —must submit, whatever may be the teniporary inconvenience resulting therefrom.” See, also, Appeal of Easton, etc., R. Co., (Pa. Sup.) 19 Atl. 486. It follows that the plaintiff was engaged in an unlawful work, in an unlawful assemblage, and was a disturber of the peace. The police of the city) instead of being present to protect plaintiff in his unlawful acts, should have prevented them. The controversy is one which should have been disposed of in the usual and orderly manner by judicial proceedings. The jury has determined that the shooting was accidental, and that the defendant intended no injury to the plaintiff. If the plaintiff in such case was roughly handled and injured while engaged in an unlawful act, the law has no particular tenderness for him, and will not give him damages for the injury received. Galbraith v. Fleming, 60 Mich. 403; People v. Pearl, 76 Mich. 211 (15 Am. St. Rep. 304). The deputy sheriff was authorized by law to prevent the accomplishment of the illegal act, and plaintiff should have desisted when so warned by him. Under this view of the case, I think there was no prejudicial error in the instruction of the court. The judgment should be affirmed.