Moss v. City Council

93 Ga. 797 | Ga. | 1894

Lumpkin, Justice.

The facts appear in the reporter’s statement. No question was made in the present case as to the validity of the ordinance therein mentioned, and our decision has been made upon the assumption that the municipal authorities of Augusta had the right to adopt this ordinance.

The doctrine that a city is not liable for the illegal and tortious acts of its police officers has been well Settled by repeated decisions of this court. Attaway v. Mayor and Aldermen of Cartersville, 68 Ga. 740, and cases there cited. The learned counsel for the plaintiff in error recognized and admitted the force and effect of the rule established by these cases, but sought to draw a distinction between them and the case at bar, upon the idea that the “dog-killer” appointed under the ordinance in question was not a police officer, but rather an employee acting as agent for the city in a different capacity from that of a policeman. Accordingly, they insisted that he was acting in the performance of a duty private in its nature, and that, in appointing him to discharge this duty the municipal authorities were not exercising a power belonging to the city as a political division of the State. Their contention was, that the killing of dogs under the provisions of this ordinance was a sort of private enterprise in which the general welfare of the public was not involved. We cannot concur in these views. The “dog-killer” was, in a large sense, a police officer of the city; and in the sphere of his particular business as such, as much a public servant as a policeman charged with the duty of making arrests and preserving the public peace and safety. We are therefore quite confident that the city was no more liable for the wanton and. malicious acts of a person appointed to execute the “ dog-killing” ordinance, than it would be for such acts of a regular full-fledged policeman.

Nor do we think there is any merit in the contention that the city, in effect, contracted with the plaintiff, in consideration of his purchasing from the city a collar for his dog, that it would protect the animal, while wearing the collar, fropn being killed. The ordinance was strictly a police regulation, covering an element of taxation, but it did not raise any contractual relations whatever between the city and the owners of dogs within the corporation.

The trial court was right in sustaining the demurrer to the declaration. Judgment affirmed.