Royce v. Salt Lake City

• Citation: 15 Utah 401,49 P. 290
• Decision Date: 19 June 1897
• Docket Number: 801
• Court: Supreme Court of Utah
• Parties: GUY C. ROYCE, RESPONDENT, v. SALT LAKE CITY, APPELLANT

49 P. 290

15 Utah 401

GUY C. ROYCE, RESPONDENT, v. SALT LAKE CITY, APPELLANT

No. 801

Supreme Court of Utah

June 19, 1897

Appeal from the Third district court, Salt Lake county. John A Street, Judge.

Action of tort by Guy C. Royce against Salt Lake City for false imprisonment. From a judgment for plaintiff, defendant appeals.

Judgment of the court reversed, and a new trial granted.

W. A McKay and D. B. Hempstead, for appellant.

2 Dillon on Municipal Corporations, secs. 968, 969, 970. "If the act complained of lies wholly outside of the general or special powers of the corporation as conferred by charter or statute, the corporation can in no event be liable for damages whether it directly commanded the act or not." To the same effect, see: Thayer v Boston, 19 Pick. 511; Browning v. Owen Co. Com., 44 Ind. 11; Horne v. Baltimore, 30 Md. 218; Chicago v. Turner, 80 Ill. 419; Howell v. Buffalo, 15 N.Y. 521-2; Ball v. Town of Woodbine, 61 Iowa 83; Morrison v. Lawrence, 98 Mass. 219; Cavanaugh v. Boston, 139 Mass. 426.

The officers of a municipal corporation cannot ratify an ultra vires act so as to make it binding upon the corporation. 2 Dillon Mun. Corp., p. 1197; Caldwell v. Boone, 51 Iowa 687; Odell v. Schroeder, 58 Ill. 353.

Powers, Straup & Lippman and L. M. Armstrong, for respondent:

Cited: Mulcairnes v. Janesville, 67 Wis. 24; Bishop Non-Contract Law, sec. 733; Hawkes v. Charlemont, 107 Mass. 417; Stoddard v. Saratoga Springs, 127 N.Y. 261; Dillon 4th Ed., sec. 971 to 974 inclusive; Giovanni v. City of Philadelphia, 59 F. 303; Buffalo & C. v. Buffalo City, 58 N.Y. 639; Bieling v. City of Brooklyn, 120 N.Y. 98; Waldron v. City of Haverhill, 143 Mass. 582; Dillon, 968, 971, 974.

MINER, J. ZANE C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

Plaintiff was arrested by a police officer of defendant for vagrancy, without a warrant, no public offense being shown to have been committed in his presence. He was tried on the verbal charge of vagrancy, under the city ordinances of Salt Lake, in the police court, without any written complaint being filed against him. Plaintiff interposed a plea of not guilty, was tried, and convicted of the offense charged, and sentenced to imprisonment in the city jail for a period of 60 days. He was afterwards held by the jailer of the city jail without any commitment from the police court. Through the direction of the chief of police and jailer, he, with other prisoners, was placed in the custody of guards, and set at work breaking rock for Salt Lake City, under the sheds prepared for that purpose by the city marshal, and for the protection of city prisoners. These sheds were located near a stone quarry, which was in charge of the street supervisor. The broken rock was used for repairing sidewalks in the city. While so engaged in breaking rock, plaintiff was injured by being struck in the eye by a piece of rock broken by a fellow prisoner, which injury caused the loss of the sight of his eye. Under objection, a resolution of the city council was introduced in evidence, recommending that the city marshal be directed to employ city prisoners on such work as, in his judgment, may be for the best interests of the city. The city marshal did not know of this resolution at the time plaintiff was set at work. This action was brought to recover damages for wrongfully, unlawfully, and negligently compelling plaintiff to perform said work, whereby the sight of one of plaintiff's eyes was destroyed, and that of the other greatly injured, through the negligence and unlawful acts of the defendant. The defendant appeals from the judgment obtained by the plaintiff.

Appellant contends that the conviction and imprisonment of the plaintiff were illegal; that the act of the chief of police in requiring the plaintiff to work was illegal and wrongful; that the city is not liable for the ultra vires acts of its officers and servants, even though attempted to be authorized by the city; that the city could not ratify a void act, and is not liable for the unlawful acts of its officers and agents. Section 5305, Comp. Laws Utah 1888, contemplates that a written complaint, on oath, shall be filed, except in specific cases, and then a sworn complaint must be immediately filed with the magistrate, or an accusation made, and entered in the minutes of the court, specifying the charge against any person arrested for an offense. Section 5350, Comp. Laws Utah 1888, requires that a certified copy of the judgment, or an order of commitment, shall be delivered to the proper officer after judgment, as a warrant for the execution of the judgment. These requirements of the statute were not complied with. The plaintiff was sentenced to 60 days' imprisonment. There is no provision in our statute, under such a sentence, whereby he could be compelled to work or labor. To require work from him under such circumstances would be, in effect, the imposition of an additional sentence by the police officers over and above the sentence imposed by the police magistrate. The city ordinances were not pleaded or placed in evidence, and therefore cannot be considered. Estee, Pl. & Prac. § 188; Shanfelter v. Mayor of Baltimore (Md.), 80 Md. 483, 31 A. 439; City of McPherson v. Nichols (Kan. Sup.), 48 Kan. 430, 29 P. 679.

It therefore appears that the plaintiff was wrongfully and illegally imprisoned, and that he was wrongfully and illegally required to work breaking rock at the time he received the injuries complained of, and these illegal acts were done and authorized by the chief of police, acting as city marshal and jailer of the city, and three guards appointed to watch over the prisoners. To create a liability on the part of the city, it is necessary that the act done which was injurious to the plaintiff was within the scope of the corporate powers of the city as prescribed by its charter; that is, the act must not have been ultra vires in the sense that it was not within the power or authority of the corporation to act with reference to it. If such act complained of was wholly outside of the general or special power of the corporation as conferred by statute, the corporation cannot be made liable to an action for damages whether it commanded and directed the act to be done, or whether it was done by its officers without its direction; for no municipal corporation can be impliedly liable to a greater extent than it could make itself by express corporate action. But, if the wrongful act was not ultra vires, it might be the basis of an action of tort against the corporation, whether done by its officers under direct authority, or ratified by it, or whether done by the officers of the corporation in the execution of its corporate powers and duties of a ministerial nature, if done so negligently or unskillfully as to injure others, in which case the corporation would be liable for the carelessness and want of skill of such officers in the course of their authorized employment, without expressly ratifying or adopting the act. So, where a corporation appoints or elects its officers, and has power to control them in the discharge of their duties, can continue or remove them from office, and hold them responsible for the manner in which they discharge their trust, with reference to the corporate powers, and which are for the corporate benefit in its local interest, then such officers are agents of the corporation, and the maxim respondeat superior applies. But, if the officers are elected or appointed by the city government in obedience to a statute or chartered power to perform a public service not particularly local or corporate in its nature, but because the mode of selection is deemed expedient by the legislature in distributing the powers of government, if they are independent of the corporation as to tenure of office and the manner of discharging their duties, then they are not to be regarded as servants or agents of the corporation, for whose acts or negligence it is impliedly liable, but they would be regarded as public or state officers, with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable. So that, in order to make the corporation impliedly liable for the wrongful acts of an officer, it must not only be shown that the officer was its officer, either generally as respects the particular wrong complained of, and not an independent public officer...