Worley v. Inhabitants of Columbia

• Citation: 88 Mo. 106
• Parties: WORLEY, Appellant, v. THE INHABITANTS OF THE TOWN OF COLUMBIA.
• Decision Date: 31 October 1885
• Court: United States State Supreme Court of Missouri

88 Mo. 106

WORLEY, Appellant,

v.THE INHABITANTS OF THE TOWN OF COLUMBIA.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Boone Circuit Court.--HON. G. H. BURCK HARTT, Judge.

AFFIRMED.

W. Gordon, Squire Turner, S. C. Major and W. O. Forrist for appellant.

(1) The trial court erred in sustaining demurrer to petition, as courts cannot take judicial cognizance of charters incorporating towns as they may do of public statutes. 1 Greenleaf's Evid., sec. 479 and 480; Inhabitants of Town of Benton v. Robinson, 75 Mo. 194; Bowie v. Kansas City, 51 Mo. 454. (2) Appellee as a corporation under its charter had authority to levy and collect taxes off of property, real and personal, and license shows, circuses, etc., within its corporate limits, and its ordinance, although void, passed by its board of trustees, requiring appellant, in order to exercise his vocation and trade, to take out an auctioneer's license, was an attempt to exercise its taxing powers, and although done in an unlawful manner, was within the scope of its lawful powers and not ultra vires. The ordinance was enacted for a lawful purpose and for the purpose of raising a revenue for the benefit of the corporation, but was wrongfully imposed on a privileged vocation. Hunt v. City of Boonville, 65 Mo. 620; Rowland v. City of Gallatin, 75 Mo. 134; Hickerson v. City of Mexico, 58 Mo. 61; Soulard v. City of St. Louis, 36 Mo. 546; Thompson v. City of Boonville, 61 Mo. 283. (3) Appellee is civilly liable for damages for a trespass or tort done at its command by its officers and agents in relation to a matter within the scope of the purpose for which it was incorporated, and where acts are done by its authority or by those branches of the corporate government invested with jurisdiction and power to act for the corporation upon the subject, to which the particular act relates, or where after the act has been done, it has been ratified by the corporation. Appellee's charter confers full power upon its recorder to issue his warrant and have brought before him all persons charged with violating the ordinances of said corporation and power to fine and punish all persons for infractions of its by-laws, and confers power on its marshal to arrest all persons, charged with the violation of said ordinances, and power to execute all processes issued by said recorder. Here two branches of the corporate government, exercising their lawful powers, but in an unlawful manner, by seizing and imprisoning the body of appellant for the violation of a void ordinance, which clearly makes the appellee liable, as it had no power to punish appellant for exercising the vocation of an auctioneer within the corporate limits of said town. Soulard v. City of St. Louis, 36 Mo. 553; Ang. & A. on Corp., sec. 311; Waterson v. Bennett, 12 Barb. 196; St. Louis v. Sternberg, 69 Mo. 289. (4) The action of the appellee cannot be upheld or sustained as a police regulation. Police is a system of protection either for the prevention of crimes or of calamities. They are laws designed to protect the lives, limbs, health, comfort and quiet of citizens and to secure them in the enjoyment of their property, and can be invoked for this alone, and the court erred in sustaining the demurrer on this ground. State ex rel. Haresler v. Greer, 78 Mo. 194.

S. C. Douglass and W. J. Babb for respondent.

(1) The trial court did not err in sustaining the demurrer to the second count of the petition. A municipal corporation is not liable for acts of its police officers, when such acts are of a public nature and done in the enforcement of police regulations. Caldwell v. City of Boone, 51 Ia. 667; Buttrick v. Lowell, 1 Allen, 182; Hafford v. City, etc., 16 Gray, 297; Town, etc., v. Schroeder, 58 Ill. 553; Burch v. Hartwicke, 33 Am. Rep. 645; Dillon on Mun. Corp. 262. (2) The enactment of the ordinance under which appellant was arrested, being without the scope of the corporate power of the respondent, the latter is not liable for the wrongful and illegal acts on the part of the officers engaged in the enforcement of such illegal ordinance. Dillon on Mun. Corp. (3 Ed.) sec. 968; Mayor, etc., v. Cunliff, 2 Com. (N. Y.); Adams v. Inhabitants, etc., 1 Met. 286.

RAY, J.

This is an action for damages occasioned by the arrest and false imprisonment of plaintiff, by the officers of the town of Columbia, defendant. A demurrer to the petition, which was in two counts, was successfully interposed at the trial, upon the general grounds that the same fails to state facts sufficient to constitute a cause of action, and upon special grounds set forth in said demurrer. It substantially appears from the first count of the petition, that the defendant is organized under the laws of this state, for the incorporation of towns and villages, and that it had at the time of the commission of the trespass, complained of by the plaintiff, two officers, styled marshal and recorder, and that the marshal, under color of his office, compelled the plaintiff to go with him to the office of the recorder, and by virtue of a pretended mittimus issued by said recorder, and with the authority of respondent, did imprison the appellant, by reason of which he was deprived of his liberty. Said first count fails and omits to state whether or not plaintiff was arrested and imprisoned for an alleged violation of a town ordinance, or for what cause, or upon what charge, if any, the said arrest and imprisonment was based.

For aught that appears to the contrary in its allegations, said officers were acting merely as the police officers of said town, and engaged at the time in enforcing the police regulations thereof. When, so acting, their duties are of a public character; their acts are in the interest of civil government and of the public, and they are not, when acting in that behalf, the servants of the town or city, in its corporate capacity. The relations of principal and agent do not then exist, and the town is not liable for their said acts in that behalf. The bare allegations that said marshal and recorder committed a trespass upon the person of plaintiff, though done colore officii do not, we think make, a prima facie case against the municipal corporation, which is not liable for any and all acts and trespasses of its officers, voluntary, malicious and unauthorized, and which, prima facie, is not liable for their wrongful acts. This count was, we think, fatally defective, for want of other and further allegations, and statements of facts, sufficient to show the liability and responsibility of the defendant corporation. Dillon on Mun. Corp., sec. 972; Thayer v. City of Boston, 19 Pick. 511; Caldwell v. City of Boone, 51 Ia. 687; Buttrick v. City of Lowell, 1 Allen, 172.

But the grounds of the arrest and imprisonment of plaintiff and the real facts of the case are set out in the second count of the petition, and the general subject and question involved can be more fully presented in connection with our discussion of the case, as disclosed and set forth therein. The facts, as gathered therefrom, are that the plaintiff was arrested by the town marshal, upon a warrant issued by the recorder of said town upon the charge of having exercised the trade and business of an auctioneer within the corporate limits of said town without first obtaining a license as required by the town ordinance. Upon an appearance and jury trial, had before said recorder upon said charge, plaintiff was adjudged guilty and fined twenty dollars, and for the non-payment of said fine was committed and imprisoned in the county jail for five days. On an appeal from the said judgment of the recorder to the circuit court of ...