City of Lawton v. Harkins

• Decision Date: 12 September 1912
• Citation: 126 P. 727,34 Okla. 545,1912 OK 584
• Parties: CITY OF LAWTON ET AL. v. HARKINS.
• Court: Oklahoma Supreme Court

126 P. 727

34 Okla. 545, 1912 OK 584

CITY OF LAWTON ET AL. v. HARKINS.

Supreme Court of Oklahoma

September 12, 1912

Syllabus by the Court.

The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity, but in the interest of the public. A city is therefore not liable for the acts of its officers in attempting to enforce such regulations, and further because police officers can in no sense be regarded as servants or agents of the city. Their duties are of a public nature. Their appointment is devolved upon cities and towns by the Legislature as a convenient mode of exercising a function of government; but this does not render the cities and towns liable for their assaults trespasses, or negligent acts.

Policemen as such, were unknown to the common law. They are creatures of statute, and can exercise only such power and authority as has been granted by legislative enactment; yet, the office being authorized by statute, the policeman is a conservator of the peace, and has the right to arrest violators of the laws, ordinances, and police regulations, without warrant, as provided by statute; but he is not exempt from civil liability when he acts in a wrongful, oppressive, and illegal manner, and the general doctrines of the law touching personal liability for torts apply to policemen.

Commissioners' Opinion, Division No. 1. Error from District Court, Comanche County; J. T. Johnson, Judge.

Action by James G. Harkins against the City of Lawton and another. From a judgment for plaintiff for $500, defendants bring error. Reversed, and remanded for new trial.

Chas C. Black, City Atty., of Lawton, for plaintiffs in error.

W. E Earl, of Lawton, for defendant in error.

ROBERTSON C.

The defendant in error, James G. Harkins, filed his petition in the district court of Comanche county on September 30, 1907, and, among other things, charged that John Lantznester, one of the plaintiffs in error, was, on August 6, 1907, a police officer of the city of Lawton, charged with the duties, as such, to "enforce the laws and ordinances of such city and keep the peace, arrest all violators of the laws and ordinances of the city, and the disturbers of the peace of said city, and bring them before the police judge and file complaint against the wrongdoers." Record, p. 12. The petition further charges that, while Harkins was peacefully peddling the products of his farm to the merchants of said city, he was arrested by John Lantznester, one of the plaintiffs in error, and imprisoned for two hours unlawfully, maliciously, and without warrant or complaint, to his damage in the sum of $5,000. The defendants both answered by general denial, and the cause was tried to a jury on March 29, 1909, and resulted in a verdict in the sum of $500 in favor of plaintiff and against both defendants.

At the close of plaintiff's testimony, the defendants each demurred thereto, for that the testimony offered was wholly insufficient to constitute any cause of action against the said defendants. These demurrers were overruled, and plaintiffs in error assign this ruling of the court as error.

Two questions are presented by this record for our consideration under the foregoing assignment of error, viz.: Was the city of Lawton liable in damages for the arrest and imprisonment of Harkins under the facts in this case? And, second, was Lantznester, the policeman, liable in damages to Harkins for such arrest and imprisonment under the same facts?

The answer to the first question undoubtedly must be that a municipality, such as plaintiff in error, is not liable for the acts of its officers in attempting to enforce its police regulations, for such regulations are not made and enforced in the interest of the city, as such, but in the interest of the public generally; and this is true, even though the ordinance or regulation under which the act complained of is performed is void. 5 Dill. Munic. Corp. § 1656, and the many cases there cited.

The allegations of the petition are to the effect that the city, after the arrest of Harkins, through the acts of its mayor and chief of police, ratified the acts of Lantznester, its policeman, in making the arrest; and that therefore it is liable for such arrest and imprisonment. Conceding, for the sake of argument, that the arrest by Lantznester was wrongful and illegal, that fact would not render the city liable in damages, for it is not within the power of a municipality, such as the city of Lawton, to ratify any such act, or to authorize the performance of same; and, as has been well said, if the city had no power to authorize Lantznester to commit such an act as is complained of in this case, it certainly would have no power to ratify the same after it had been performed. Peters v. Lindsborg, 40 Kan. 656, 20 P. 490; Calwell v. City of Boone, 51 Iowa, 687, 2 N.W. 614, 33 Am. Rep. 154. In 28 Cyc. 1299, it is said: "When, by the action of the state, a municipal corporation is charged with the preservation of the peace, and empowered to appoint police boards and other agencies to that end, the corporation pro tanto is charged with governmental functions in the public interest and for public purposes, and in the exercise of its powers and duties in respect of the enactment and enforcement of police regulations it is entitled to the same immunity as the sovereign granting the power unless such liability is expressly declared by the sovereign. The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity, but in the interest of the public. A city is not liable therefore for the acts of its officers in attempting to enforce such regulations, and further because police officers can in no sense be regarded as servants or agents of the city. Their duties are of a public nature. Their appointment is devolved upon cities and towns by the Legislature as a convenient mode of exercising a function of government, but this does not render the cities and towns liable for their assaults, trespasses, or negligent acts."

In the case at bar, it is conceded that Lantznester was a regularly appointed, qualified, and acting policeman under and by virtue of the provisions of the statutes of the state, and was not a special officer employed by the municipality in its corporate character, or in the performance of a corporate duty; and, this being true, the rule is well established that the municipality will not be liable for his assaults, trespasses, or other acts of negligence. 28 Cyc. 1300, and cases cited there.

In Stewart v. New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218 the following rule is laid down: "A distinction is drawn between the liability...