Simpson v. City of Whatcom

• Citation: 74 P. 577,33 Wash. 392
• Parties: SIMPSON v. CITY OF WHATCOM.
• Decision Date: 10 December 1903
• Court: United States State Supreme Court of Washington

74 P. 577

33 Wash. 392

SIMPSON v. CITY OF WHATCOM.

Supreme Court of Washington

December 10, 1903

Appeal from Superior Court, Whatcom County; Geo. A. Joiner, Judge.

Action by George E. Simpson against the city of Whatcom. From a judgment for defendant, rendered on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Stafford & Ellis, for appellant.

H. M White, for respondent.

DUNBAR J.

Respondent passed a municipal ordinance prohibiting the riding of bicycles of a certain size upon its streets unless a license therefor were procured and a tax of $1.00 a year paid for such license. The ordinance provided that 75 per cent. of the revenue derived from such license should be expended on certain local improvements within respondent's municipal limits, and that the remaining 25 per cent. was to be, and it was, mingled with and made a part of the general funds of the city for use in its local interests, benefits, and advantages. On the 15th day of August, 1900, one Shelley, a policeman of respondent city made and swore to an affidavit before a police justice of the respondent, charging appellant with the violation of said ordinance by riding a bicycle on the public streets without having procured a license therefor. A warrant was issued, the said policeman arrested the plaintiff, imprisoned him for several hours, and caused him to be arraigned before a police justice on said charge. Appellant was prosecuted by the city attorney, and convicted and fined, and a judgment for such fine and costs, amounting to $13.70, was entered against him in the police court of said city. In order to release himself from said conviction and judgment, appellant was compelled to and did appeal therefrom to the superior court of the state of Washington, giving bond in the sum of $100 to perfect such appeal. Upon said appeal the ordinance was held by the judge of the superior court to be null and void in so far as it purported to prohibit the riding of bicycles upon the public streets of respondent without a license, and appellant was acquitted of such charge. In defending himself from such charge, conviction, and judgment appellant was compelled to employ attorneys at an expense of $50. Afterwards appellant brought an action for damages against the city, alleging in his complaint the matters and things just above stated, in addition to the allegation that by reason of such charge arrest, and trial appellant lost time to the value of $15 and was injured in his feelings and subjected to humiliation and disgrace, and caused mental pain and anxiety, to his damage in the sum of $2,500; asking judgment for $2,565. To this complaint, the substance of which we have given, the respondent city demurred. The demurrer was sustained, and, appellant refusing to plead further, judgment was entered in favor of respondent.

The issues arise on the ruling of the court in sustaining the demurrer to the complaint. The exact question involved in this case has not heretofore been presented to this court and we have therefore made an exhaustive examination of the authorities bearing on the question. It must be confessed that they are somewhat bewildering, as well in number as in lack of harmony, viewed either from the standpoint of different conclusions from the same state of facts, or of the announcement of different principles controlling the same conclusions. So that it is not easy to reconcile all of the decisions and deduce therefrom a satisfactory general principle by subjection to which the different facts can be tested. The controlling question in all this character of cases is whether or not the officers to whom are attributed the delinquencies which resulted in the damages alleged are the agents of the city. If they are, then the doctrine of respondent superior applies, and the city is liable; if not, otherwise. We think it is a general rule--at least one which has been adopted by this court--that, even in the absence of a statute giving the right of action, cities are liable for acts of misfeasance and malfeasance injurious to individuals, done by their authorized agents or officers in the course of the performance of corporate powers or in the execution of corporate duties. But this raises the perplexing distinction between corporate duties and public duties, questions as to when the officers are acting as agents for the corporation and when of the state or general public. When for the general public, or in furtherance of the public policy of the state, the city is not liable for their acts. In some jurisdictions, as in Massachusetts, it is held that, even when the officers are acting confessedly in the interests of the city, no private actions for damages will lie unless specially authorized by statute. But it is unnecessary to discuss that line of cases, as this court in Sutton v. Snohomish, 11 Wash. 24, 39 P. 273, 48 Am. St. Rep. 847, has laid down the contrary rule, which it has since uniformly followed. We think, however, this general deduction may be made: that whenever the damaging action or the neglect of the officer arises in the execution of a duty which is for the exclusive benefit of the city, the city is liable; but if the duty, in whole or in part, is one imposed upon the city as a public instrumentality of the state, the city is not liable. It is insisted by the learned counsel for the appellant that, inasmuch as the complaint shows that the ordinance provides that the revenues arising from the licenses sought to be secured shall go into the city treasury, the city is liable, under the rule announced in Dillon on Corporations (4th Ed.) § 974; that if the duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they (the officers) may be regarded as its agents or servants, and the maxim of respondeat superior applies. But it does not necessarily follow that the duty is purely a corporate one because the revenues arising from the provisions of the law go into the treasury of the municipality. If it is in the nature of a police regulation, a regulation which the Legislature had a right to make, the Legislature had a right also to distribute the powers of the government in the enforcement of its public policy, to constitute the different municipalities enforcing agencies, and to distribute the revenues as it saw fit. It would certainly not be an unreasonable act on the part of the Legislature to place the revenues arising from the law in the treasury of the municipality collecting them. And it cannot be disputed that the state, under its police power, has the right, in the absence of constitutional limitation or inhibition, to subject all occupations to a reasonable regulation where such regulation is required for the public welfare. The bicycle is a comparatively modern invention, and legislation in regard to it has been limited. Still it has been established by judicial decision that, so far as its use on the highways is concerned, it is to be regarded as a carriage or vehicle, and subject to the same burdens as other vehicles. 4 Enc. of Law (2d Ed.) p. 16, and cases cited. The use of vehicles on public highways is a subject of police regulation. 22 Am. & Eng. Enc. of Law (2d Ed.) 929. In any event, common observation would determine the fact that the bicycle, with its capacity for extreme speed, its liability on that account to injure pedestrians who might come in contact with it, as well as the riders themselves, is a particularly suggestive subject for public legislation; and the Legislature of this state, recognizing such necessity, passed a law, found in the Laws of 1899 at page 41, authorizing and empowering cities of the first, second, third, and fourth classes to regulate and license by ordinance the riding of bicycles, to construct and regulate the use of bicycle paths and roadways, prohibiting the improper use of such paths and roadways, and providing a penalty and declaring an emergency. This law authorizes the cities to establish and collect reasonable license fees from all persons riding bicycles, and to enforce the payment thereof by reasonable fines and penalties, and make provision for the distribution of the funds arising from such licenses. So that it will be seen that the ordinance was enacted in conformity with the express policy of the Legislature in relation to controlling bicycles. Nor could Mr. Dillon, in the quotation relied upon by appellant, have had in view the kind of case under discussion here, for, after a discussion of the general principles relating to the liability of towns for the action of its officers, he continues, in section 975, as follows: 'Agreeably to the principles just mentioned, police officers appointed by a 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; and, accordingly, 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; or for an arrest made by them which is illegal for want of a warrant, or for other cause. * * * So, on the same principle, a person who suffers personal injury while aiding the police officers of a city, at their request, in arresting disturbers of the public peace under a valid ordinance, has no remedy against the city. The municipal corporation in all these and the like cases represents the state of the public. The police officers are not the servants of the corporation. The principle of respondeat superior does not apply, and the corporation is not liable unless by virtue of a statute expressly creating the liability.' While the case of McGraw v. Marion, 98 Ky. 673, 34 S.W. 18, 47 L....