88 Mo. 106 | Mo. | 1885
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
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 Boone county, the plaintiff was acquitted.
The town of Columbia is organized under the general laws of the state, its board of trustees has power (sec. 5011, chap. 89, R. S.) to appoint a marshal and other necessary officers and agents and is authorized to pass by-laws and ordinances upon certain subjects, specified in section 5010, chapter 89, Revised Statutes. The said office of recorder was created by a special legislative act, approved February 13, 1849,
Counsel for appellant seek to bring this case within the qualified rule of liability, announced in these and ether decisions, upon the ground that as the defendant corporation had authority to levy and collect taxes, and do license shows within its corporate limits, the ordinance in question, though void, was enacted for the lawful purpose of raising revenue for the city, and that, “though wrongfully imposed upon a privileged vocation, was within the scope of the lawful powers of said town, and that said recorder and' marshal in arresting, fining and imprisoning plaintiff for a violation thereof, were •exercising their lawful powers as such officers, but were acting in that behalf only in an unlawful manner. These views and deductions are, we think, evasive of the real question involved. Municipal corporations are limited “to the exercise of powers expressly conferred, and those not specially delegated are prohibited. Raising revenue for the city is a lawful purpose when confined to sub
In Trustees, etc., v. Shroeder, 38 Ia. 383, it is held that: “A municipal corporation is not liable for the
In the case of Thayer et al. v. The City of Boston, 19 Pick. (Mass.) 511, it is laid down that, “As ageneral rule a municipal corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii; it must further appear that the officers were expressly authorized to do the acts, by the corporation, or that they were done bona fide in pursuance of a general authority to act for the corporation, on the subject to which they relate, or that, in either case, they were adopted and ratified by the corporation.”
The case of Dooley v. Kansas City, 82 Mo. 444, does not announce a contrary doctrine. Said city was authorized to purchase and hold property beyond the city limits for the erection and maintenance of a pest house. It is there said the action of the city in taking said property, in the emergencies existing, was within the scope of one of the purposes for which it was incorporated. The city charter expressly authorized the property to be acquired for the given purpose, but the premises seized were not acquired by purchase, which was the prescribed manner. The city’s method or mode of acquisition was unauthorized and unlawful, but its authority and power to acquire the property for the given purpose in another and proper way was expressly conferred, and its action by its officers and agents when attempting to exercise its lawful power and authority in that behalf, but in an unauthorized manner may be made, under the doctrine of that case, as well as of this, the foundation of a right of action. But the rule is otherwise where, as in this case, the city is incapable of any lawful action upon the given subject, without a further grant of power in that behalf. As said marshal and
A further objection urged by appellant is, that • courts cannot take judicial cognizance of charters incor- ‘ porating towns as they may of public statutes. But there was no- private charter or private act involved in i the case. ' The defendant corporation is organized under the general laws of' the state and said legislative' act, creating the office of recorder, is. declared to be a public act. See Boone v. Kansas City, 51 Mo. 454. As to ‘ said'ordinances, it is sufficient to say, there was no mention of any ordinance in the first count, and the second sount sets out in substance the violated ordinance.
•We find no error in the action of the trial court in sus- ' taining said demurrer, and its judgment in that behalf is affirmed.
