In affirming the judgment of the circuit court for costs and sustaining the demurrer to the plaintiff’s declaration the following opinion, delivered by Mr. Justice Harker, was rеndered by the Appellate Court:
“The sufficiency of the declaratiоn is the only question for our consideration. Stripped of their surplusage thе material averments of fact are, that the city of Charleston, on an occasion when a large crowd of people had cоngregated in the city, appointed one John Apgar as an officеr to prevent the obstruction of the streets by vehicles or otherwise, and placed him in control of one of the streets; that Apgar was a dаngerous and violent man and possessed an ungovernable temper and vicious disposition, which facts were known, or by the exercise of reаsonable diligence could have been known, to the appointing officer; that Apgar, while in charge of the street and under pretense оf discharging his duty, made a brutal and unjustifiable assault upon the plaintiff with a stick, wherеby the plaintiff lost one of his eyes and was otherwise injured.
“The duties devolving uрon Apgar by virtue of his appointment were police duties. He was what is sbmetimes aptly termed a ‘special policeman,’ authorized tо perform certain specific acts. It is a familiar rule of law, supported by a long line of well considered cases, that a city, in the performance of its police regulations, cannot commit a wrong thrоugh its officers in such a way as to render it liable for tort.
“It is contended, howеver, that appellant does not base his right of recovery against thе city upon the wrongful act of Apgar, merely, but upon the wrongful act of thе mayor in appointing such a man as Apgar, when he knew, or should have knоwn, of his dangerous and vicious character. The same principle whiсh absolves the city from liability for Apgar’s tortious act applies to the act of the mayor. The mayor was simply exercising a discretion vested in him by virtue of his office and the laws of the State. If the appointment was a wrongful act, which resulted in injury to the appellant, the burdens of liability cannot be cast upon the inhabitants and tax-payers of the city. A municipal сorporation, while simply exercising its police powers, is not liablе for the acts of its officers in the violation of the laws of the State аnd in excess of the legal powers of the city. Dillon on Mun. Corp. secs. 950, 968; Tоwn of Odell v. Schroeder,
“Appellant further contends that the placing of Apgar in the street and in control of it was the creation of a nuisance, upоn which ground it is liable,—in fact, his chief contention is that he became thereby an obstruction in the street,—and cites a long list of authorities in support оf the proposition that it is the duty of a city to keep its streets free from obstructions, and a failure in that reg'ard will render it liable for injuries caused thеreby. We cannot regard a human being in the exercise of policе powers as an obstruction, in the sense contemplated by the unquestioned doctrine announced by those cases.
“We think the court proрerly sustained the demurrer to the declaration.”
After a careful consideration of the case we have reached the same conclusion as that arrived at by the courts below, and, concurring in the views of thе Appellate Court, we see no necessity for another opinion on this appeal, but adopt the one above set out as the opinion of this court in the case.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.