Culver v. City of Streator

• Decision Date: 26 November 1889
• Citation: 130 Ill. 238,22 N.E. 810
• Parties: CULVER v. CITY OF STREATOR.
• Court: Illinois Supreme Court

130 Ill. 238

22 N.E. 810

CULVER

v.CITY OF STREATOR.¹

Supreme Court of Illinois.

Nov. 26, 1889.

Error to appellate court, second district.

Action by Carrie Culver against the city of Streator for personal injuries caused by the negligent acts of a person employed by defendant to kill unmuzzled dogs. The circuit court sustained a demurrer to the declaration, and the appellate court affirmed the judgment. Plaintiff brings error.

Joel T. Buckley and McDougall & Chapman, for plaintiff in error.

Walter Reeves and Wm. H. Boys, for defendant in error.

BAILEY, J.

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 sity, 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 such laws, ordinances, and regulations as pertain to the remfort, 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 time 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, (Buttrick v. City of Lowell, 1 Allen, 172;) nor for illegal and oppressive acts of officers committed in the administration of an ordinance, (Board v. Schroeder, 58 Ill. 353;) nor for an...