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witness, or who is in attendance as a witness, stitute the basis of the prosecution; but they is competent to sit as a juror in the trial of are independent facts, having no bearing on

The case nearest in point is that of the question to be tried, of the guilt or innoState v. Martin, 28 Mo. 530. Martin was in- cence of the accused. They are just as condicted for stealing cattle. The juror, on his sistent with the guilt of any other person as voir dire, stated that he knew the cattle al- they would be with the guilt of the accused; leged to have been stolen; that his brother and their establishment does not make a sin. had once owned them, and had sold them to a gle step toward a conviction. If these facts man named Kerr, who had subsequently sold are controverted facts, it may be that a per: them to the person alleged in the indictment son who has formed an opinion upon them to be the owner. The Missouri supreme ought to be excluded from sitting on the court sustained the lower court in holding jury; but where they have no bearing on the that the juror was competent on the express guilt of the accused, and are likewise not conground that the ownership of the cattle was troverted on the trial, it is plain that the not a controverted fact. The statute of Mis- juror is, in every material respect, impartial souri provided that it should be a good cause and competent.” for a challenge to a juror that he had formed Where the facts, however, are material to an opinion upon the issues or any material a conviction, as in this case proof of wantonfact to be tried. The court said: “No ques. ly negligently, recklessly, and wilfully driving tion has heretoforc arisen upon the construc- a team over the public roads, thereby caustion of this provision of our criminal prac- ing the death of a person, we think the tice act, nor have we observed any case in knowledge of such driving immediately preany other state where similar statutes have ceding the commission of the offense was mabeen passed upon by their courts. Ordinarily, terial, and a juror possessing the same canthere cannot be much practical difficulty in not be said to go into the jury box in that enforcing what seems to be the spirit and ob. state of mind in which the law contemplates ject of the provision, which is to secure im- a juror shall be when called upon to try one partial juries; and, when questions of doubt. accused of a crime. Such a juror cannot be ful character arise, the courts of criminal said to be an impartial one, notwithstanding jurisdiction,-as

,-as a matter of convenience and he says he is. We have alluded to the posprecaution, and with a view to avoid the pos- sible incompetency of juror Gibbs. We do sibility of subjecting the state to unnecessary not mean, however, to pass upon that quescost, as well as to secure to the accused every tion, or upon any of the other errors asreasonable satisfaction in selecting his triers, signed. In all probability they will not oc-would usụally set aside persons of ques-cur on the next trial. tionable competency when a bystander could Inasmuch as the appellant was compelled be called in, without delay, who would be un- to get rid of the juror Sperry by a perempexceptionable to all parties. It is probably tory challenge, the accused was deprived of because of this practice on the circuits—and one peremptory challenge to which he was by a very commendable one, too—that no cases law entitled. For that reason, the judgof this sort have ever come up to this court. ment of the court is reversed, and the cause ... It is material to the prosecution to remanded for a new trial. establish that the crime alleged was committed at a place within the county, for this

Reavis, Ch. J., and Hadley, Fullerton, is essential to the jurisdiction of the court. Mount, Anders, and Dunbar, JJ., concur. Does the knowledge that the alleged locality of an offense is within the county named in the indictment disqualify a juror from sit

George E. SIMPSON, Appt., ting on the case? We see at once that this fact, material as it undoubtedly is to the suc

City of WHATCOM, Respt. cess of the prosecution, has no connection whatever with the guilt or innocence of the

(........ Wash.........) party accused, and that it is a fact known A municipal corporation is not linble probably to nine tenths of the inhabitants of in damages for the acts of its officers the county, and, therefore, in all probability, in arresting and prosecuting a person in the will not be controverted on the trial. In an

attempt to enforce a void ordinance enacted

under apparent authority of the legislature, indictment for murder, the fact of the kill

and which undertook to impose a license fee, ing is an essential of crime; but would a man

for the benefit of the municipality, upon the who accidentally was present at the burial use of bicycles in its streets. of the murdered person, and saw his dead

(December 10, 1903.) body, and knew hin when alive, be excluded as an incompetent juror on the trial of a sup- and imprisonment under invalid ordinance, see

NOTE.—As to municipal liability for arrest posed manslayer? Such facts as we have re

also, in this series, McGraw v. Marion, 47 L ferred to are material in one sense. They con- R. A. 593, and note.

v.

A

PPEAL by plaintiff from a judgment of Sutton v. Snohomish, 11 Wash. 24, 48 Am.

the Superior Court for Whatcom County St. Rep. 847, 39 Pac. 273; Saylor v. Montein defendant's favor in an action brought sano, 11 Wash. 328, 39 Pac. 653; Taake v. to recover damages for the attempted en- Seattle, 16 Wash. 90, 47 Pac. 220. forcement of an illegal ordinance. Affirmed. Mr. H. M. White, for respondent:

The facts are stated in the opinion. The state legislature delegates to the mu

Mr. Marshall P. Stafford, for appel- nicipality the power and right to exercise lant:

the police power of the state within the Every municipal corporation has full gen. limits of the municipality, and in the exer. eral power to regulate the use of its streets. cise of such right the municipality cannot If, in the exercise of that general power, it be held liable in damages for the acts of its passes an unconstitutional ordinance, that police officers. ordinance, though illegal, is not ultra vires Laurel v. Blue, 1 Ind. App. 128, 27 N. E. in the sense that the municipality cannot 301; Easterly v. Iruin, 99 Iowa, 694, 68 . be held liable for wrongs sustained in conse- W. 919; Caldwell v. Prunelle, 57 Kan. 511, quence of it.

46 Pac. 949; Harrison v. Columbus, 44 Tex. 2 Dill. Mun. Corp. 4th ed. $ 771; Howell | 418; Taylor v. Owensboro, 98 Ky. 271, 56 v. Buffalo, 15 N. Y. 512; Commercial Electric Am. St. Rep. 361, 32 S. W. 948; Trescott v. Light & P. Co. v. Tacoma, 20 Wash. 292, 72 Waterloo, 26 Fed. 592; Worley v. Columbia, Am. St. Rep. 103, 55 Pac. 219; Wendel v. 88 Mo. 106; McFadin v. San Antonio, 22 Tex. Spokane County, 27 Wash. 121, 91 Am. St. Civ. App. 140, 54 S. W. 48; Trammell v. Rep. 825, 67 Pac. 576.

Russellville, 34 Ark. 105, 36 Am. Rep. 1; Respondent's ordinance was passed for its Lafayette v. Timberlake, 88 Ind. 330; Dill. sole benefit. It related exclusively to its Mun. Corp. 3d ed. § 975; Ogg v. Lansing, private local interests. It had nothing 35 lowa, 495, 14 Am. Rep. 499; Stedman v. whatever to do with its functions as part of San Francisco, 63 Cal. 193; Corsicana v. the state government.

White, 57 Tex. 382; Ball v. Woodbine, 61 For every wrong committed in the exer. Iowa, 83, 47 Am. Rep. 805, 15 N. W. 846; cise of power conferred for its sole anà ex- 15 Am. & Eng. Enc. Law, p. 1141. clusive benefit in its local affairs, an action Regulation and control of bicycle riding lies against a municipal corporation. in the city are a police regulation.

McGraw v. Marion, 98 Ky. 673, 47 L. R. State v. Bruce, 23 Wash. 777, 63 Pac. A. 593, 34 S. W. 18; 15 Am. & Eng. Enc. 519; 22 Am. & Eng. Enc. Law, 2d ed. Law, p. 1141; 20 Am. & Eng. Enc. Law, 2d p. 929. ed. pp. 1191 et seq.; 2 Dill. Mun. Corp. 4th ed. 88 965 et seq.; Providence v. Clapp, 17 Dunbar, J., delivered the opinion of the How. 161, 15 L. ed. 72; Maxmilian v. New court: York, 62 N. Y. 164, 20 Am. Rep. 468; Respondent passed a municipal ordinance Woodhull v. New York, 150 N. Y. 450, 44 prohibiting the riding of bicycles of a cer. N. E. 1038; Stewart v. New Orleans, 9 La. tain size upon its streets unless a license Ann. 461, 61 Am. Dec. 218; Carrington v. therefor were procured and a tax of $1.00 St. Louis, 89 Mo. 208, 58 Am. Rep. 108, 1 s. a year paid for such license. The ordinance W. 240; Shearm. & Redf. Neg. last ed. 88 provided that 75 per cent of the revenue 255, 281.

derived from such license should be ex. In making the affidavit on which the war- pended on certain local improvements with rant for appellant's arrest was issued, and in respondent's municipal limits, and that in årresting appellant by virtue of that war. the remaining 25 per cent was to be, and it rant, the policeman acted as the agent of was, mingled with and made a part of the the respondent in its private local affair, general funds of the city for use in its local and not as a peace officer of the state. interests, benefits, and advantages. On the

2 Dill. Mun. Corp. 4th ed. $ 974; 20 Am. 15th day of August, 1900, one Shelley, a & Eng. Enc. Law, 2d ed. $8 1204, 1205. policeman of respondent city, made and

Even if respondent had not been respon- swore to an affidavit before a police justice sible ex origine for the policeman's acts, it of the respondent, charging appellant with would have become so by its ratification and the violation of said ordinance by riding a adoption of those acts.

bicycle on the public streets without having 2 Dill. Mun. Corp. 4th ed. § 971; Com- procured a license therefor. A warrant was mercial Electric Light & P. Co. v. Tacoma, issued, the said policeman arrested the 20 Wash. 288, 72 Am. St. Rep. 103, 55 Pac. plaintiff, imprisoned him for several hours, 219; Wendel v. Spokane County, 27 Wash. and caused him to be arraigned before a 121, 91 Am. St. Rep. 825, 67 Pac. 576. police justice on said charge. Appellant

If the adoption of the ordinance was an was prosecuted by the city attorney, and exercise of "police power,” that fact does convicted and fined and a judgment for such not aid respondent.

fine and costs, amounting to $13.70, was en.

tered against him in the police court of corporate duties and public duties, questions said city. In order to release himself from as to when the officers are acting as agents said conviction and judgment, appellant was for the corporation and when of the state compelled to and did appeal therefrom to or general public. When for the general the superior court of the state of Washing. public, or in furtherance of the public policy ton, giving bond in the sum of $100 to per- of the state, the city is not liable for their fect such appeal. Upon said appeal the or- acts. In some jurisdictions, as in Massachu. dinance was held by the judge of the su- setts, it is held that, even when the officers perior court to be null and void in so far are acting confessedly in the interests of the as it purported to prohibit the riding of city, no private actions for damages will bicycles upon the public streets of respond-lie unless specially authorized by statute. ent without a license, and appellant was ac- But it is unnecessary to discuss that line of quitted of such charge. In defending him. cases, as this court in Sutton v. Snohomish, self from such charge, conviction, and judg. 11 Wash. 24, 48 Am. St. Rep. 847, 39 Pac ment appellant was compelled to employ at- 273, has laid down the contrary rule, which torneys at an expense of $50. Afterwards it has since uniformly followed. We think, appellant brought an action for damages however, this general deduction may be against the city, alleging in his complaint made: That whenever the damaging action the matters and things just above stated, or the reglect of the officer arises in the in addition to the allegation that by reason execution of a duty which is for the ex. of such charge, arrest, and trial appellant clusive benefit of the city, the city is liable; lost time to the value of $15, and was in- but if the duty, in whole or in part, is one jured in his feelings and subjected to hu- imposed upon the city as a public instrumiliation and disgrace, and caused mental mentality of the state, the city is not liable. pain and anxiety, to his damage in the sum It is insisted by the learned counsel for the of $2,500; asking judgment for $2,565. To appellant that, inasmuch as the complaint this complaint, the substance of which we shows that the ordinance provides that the have given, the respondent city demurred. revenues arising from the licenses sought The demurrer was sustained, and, appellant to be secured shall go into the city treasury, refusing to plead further, judgment was en- the city is liable, under the rule announced tered in favor of respondent.

in Dillon on Corporations, 4th ed. § 974; The issues arise on the ruling of the court that if the duties relate to the exercise of in sustaining the demurrer to the complaint. corporate powers, and are for the peculiar The exact question involved in this case has benefit of the corporation in its local or not heretofore been presented to this court, special interest, they (the officers) may be and we have therefore made an exhaustive regarded as its agents or servants, and the examination of the authorities bearing on the maxim of respondeat superior applies. But question. It must be confessed that they it does not necessarily follow that the duty are somewhat bewildering, as well. in num- is purely a corporate one because the reve. ber as in lack of harmony, viewed either nues arising from the provisions of the law from the standpoint of different conclusions go into the treasury of the municipality. If from the same state of facts, or of the an- it is in the nature of a police regulation, a nouncement of different principles controll. regulation which the legislature had a right ing the same conclusions. So that it is not to make, the legislature had a right also to easy to reconcile all of the decisions and de- distribute the powers of the government in duce therefrom a satisfactory general prin- the enforcement of its public policy, to conciple by subjection to which the different stitute the different municipalities facts can be tested. The controlling question forcing agencies, and to distribute the revein all this character of cases is whether or nues as it saw fit. It would certainly not not the officers to whom are attributed the be an unreasonable act on the part of the delinquencies which resulted in the damages legislature to place the revenues arising alleged are the agents of the city. If they from the law in the treasury of the municiare, then the doctrine of respondeat superior pality collecting them. And it cannot be applies, and the city is liable; if not, other disputed that the state, under its police wise. We think it is a general rule-at power, has the right, in the absence of conleast one which has been adopted by this stitutional limitation or inhibition, to subcourt--that, even in the absence of a statute ject all occupations to a reasonable regulagiving the right of action, cities are liable tion where such regulation is required for for acts of misfeasance and malfeasance in the public welfare. The bicycle is a comjurious to individuals, done by their au- paratively modern invention, and legislathorized agents or officers in the course of tion in regard to it has been limited. Still the performance of corporate powers or in it has been established by judicial decision the execution of corporate duties. But this that, so far as its use on the highways is raises the perplexing distinction between concerned, it is to be regarded as a carriage

en

or vehicle, and subject to the same burdens trine, holding that a municipal corporation as other vehicles. 4 Am. & Eng. Enc. Law, is answerable for the damage done to any 2d ed. p. 16, and cases cited. The use of person by its officers in enforcing an unconvehicles on public highways is a subject of stitutional ordinance or by-law enacted for police regulation. 22 Am. & Eng. Enc. Law, the sole benefit of the corporation or its citi2d ed. p. 929. In any event, common observa- zens,—the ordinance in question being one tion would determine the fact that the bicy- requiring all transient persons to pay a licle, with its capacity for extreme speed, its cense tax for the privilege of selling goods liability on that account to injure pedes- or merchandise of any kind at auction,trians who might come in contact with it, and while a few cases have followed the docas well as the riders themselves, is a par- trine announced in that case, yet the same ticularly suggestive subject for public legis- court, in Taylor v. Owensboro, 98 Ky. 271, lation; and the legislature of this state, 56 Am. St. Rep. 361, 32 S. W. 948, held recognizing such necessity, passed a law, that a municipal corporation was not liable found in the Laws of 1899 at page 41, au- for the acts of its officers in enforcing the thorizing and empowering cities of the first, penal or criminal laws of the commonsecond, third, and fourth classes to regulate wealth, or in enforcing penal ordinances of and license by ordinance the riding of bicy. the city; and that municipal officers, while cles, to construct and regulate the use of engaged in duties relating to the public bicycle paths and roadways, prohibiting the safety and in the maintenance of public orimproper use of such paths and roadways, der, are the servants of the commonwealth. and providing a penalty and declaring an so that the court in the case of McGraw v. emergency. This law authorizes the cities Marion, 98 Ky. 673, 47 L. R. A. 593, 34 S. to establish and collect reasonable license W. 18, must evidently have concluded that fees from all persons riding bicycles, and to the imposition of a license tax on transient enforce the payment thereof by reasonable persons was not in accordance with any fines and penalties, and make provision for provision of the general law, but for the the distribution of the funds arising from sole and special benefit of the city. The such licenses. So that it will be seen that difficulty in discriminating the cases on any the ordinance was enacted in conformity reasonable theory, however, arises from the with the express policy of the legislature in fact that the court in the case of Taylor v. relation to controlling bicycles. Nor could Owensboro, 98 Ky. 271, 56 Am. St. Rep. 361, Mr. Dillon, in the quotation relied upon by 32 S. W. 948, states that, while the ordi. appellant, have had in view the kind of case nance under which the arrest purported to under discussion here, for, after a discussion be made was void, the arrest was held to be of the general principles relating to the authorized by a state statute, but says that liability of towns for the action of their offi- the absence of the statute would have made cers, he continues, in § 975, as follows: no difference, for the reason that municipal “Agreeably to the principles just mentioned, corporations are auxiliaries of the state police officers appointed by a city are not its government; that the officers charged with agents or servants, so as to render it re- keeping the peace are officers of the comsponsible for their unlawful or negligent monwealth; and a breach of the peace is an acts in the discharge of their duties; and, offense against the commonwealth, so that accordingly, a city is not liable for an as- a municipal corporation is not liable for sault and battery committed by its police the acts of its officers in making a reasonofficers, though done in an attempt to en- able arrest for such breach. But whether force an ordinance of the city; or for an or not there was any legitimate distinction arrest made by them which is illegal for that could have been drawn between the want of a warrant, or for other cause. cases, both of them arising out of the police ... So, on the same principle, a person power of the state, it seems to us that the who suffers personal injury while aiding the great weight of authority supports the first police officers of a city, at their request, in announcement of the Kentucky court as arresting disturbers of the public peace un- made in Taylor v. Owensboro, 98 Ky. 271, der a valid ordinance, has no remedy against 56 Am. St. Rep. 361, 32 S. W. 948. the city. The municipal corporation in all While there are some courts which follow these and the like cases represents the state the rule announced in McGraw v. Marion, or the public. The police officers are not no court that we know of has held the the servants of the corporation. The princi- municipality liable in a case exactly like the ple of respondeat superior does not apply, one at bar, where the question came up and the corporation is not liable unless by squarely as to whether or not a policeman, virtue of a statute expressly creating the in making an arrest under an illegal ordiliability.” While the case of McGraw v. nance or warrant, was the agent of the Marion, 98 Ky. 673, 47 L. R. A. 593, 34 S. city. There are many cases directly to the W. 18, seems to lay down a different doc-' contrary, and sustaining the doctrine announced by 975 of Dillon, supra. Intenced to work upon the public streets was Trammell v. Russellrille, 34 Ark. 105, 36 occasioned by the negligence on the part Am. Rep. 1,-a case of enforcing illegal or- of the foreman who had been placed by the dinances,—it was held that for acts done by municipal authorities in charge thereof, the police officers in their public capacity and court said: “The question involved in this in discharge of their duties to the public, case has been too often passed upon by this cities and towns incurred no liability to court to require further elaboration. Neither persons who may be injured by them; that the law of master and servant nor the docneither for the act of the council in passing trine of respondeat superior applies in a an illegal ordinance, nor for that of the case where a prisoner undergoing punishmayor in issuing a warrant for the arrest ment for a violation of a municipal ordiof any person for its violation, nor for that nance is injured or killed in consequence of of the marshal in arresting the offender the negligence or misconduct of the officer under it, is a town liable to him. In Tind- having the custody or control of such prisley v. Salem, 137 Mass. 171, 50 Am. Rep. oner. This is true because in such matters 289, it was held that a city which under the municipal corporation is exercising govtakes the celebration of a holiday under the ernmental powers and discharging governauthority of the Public Statutes, exclusively mental duties, in the course of which it, of for the gratuitous amusement of the public, necessity, employs the services of the officer is not liable to an action by one who sus- in question;" citing Wilson v. Macon, 88 tains personal injuries through the negli. Ga. 455, 14 S. E. 710, and Love v. Atlanta, gence of servants of the city in discharging 95 Ga. 129, 51 Am. St. Rep. 64, 22 S. E. 28. fireworks for the purposes of the celebra- In Bartlett v. Columbus, 101 Ga. 300, 44 tion. After discussing a certain class of L. R. A. 795, 28 S. E. 599, it was held that cases where the city was held liable for the a municipal corporation is not liable, in an action of its servants, the court says: action for false imprisonment, for damages “Easily distinguishable from these are the alleged to have been occasioned to the plaincases where the city or town is exonerated tiff by reason of his imprisonment under a from liability on the ground that the wrong- judgment rendered against him by a munici. ful act complained of is not its act, but the pal court for the violation of an ordinance; act of persons who are deemed to be public and that this was true though such judg. officers, existing under independent pro- inent may have been irregular, erroneous, visions of law; officers who, though appoint- or even void. “The passage of the ordied and paid by the city or town, and though nance,” said the court, "by the city council perhaps its agents or servants for other of Columbus, for the alleged violation of purposes, are yet held not to sustain this which the plaintiff in error was tried, conrelation in respect to the particular act in victed, and imprisoned, was an exercise of question; as, for example, members of a the legislative power, and his trial and fire department.” It may be said here that sentence by the recorder was an exercise of this court held in Lawson v. Seattle, 6 the judioial power conferred by the state Wash. 184, 33 Pac. 347, that the city was upon the inunicipal corporation. It is well not liable for the negligence of officers of a settled that for errors of judgment comfire department. In Worley v. Columbia, mitted in the exercise of either of these 88 Mo. 106, it was held that police officers powers a municipal corporation is not liable of a town, engaged in enforcing its police in damages.” This applies to the action of regulations, are not regarded as officers of the city in passing the illegal ordinance unthe town in its corporate capacity, and the der discussion in this case, and upon that town is not liable for acts done by them question it is said by Cooley on Torts, p. while so engaged. This was an action for 408: "Whenever, therefore, the state confalse imprisonment, and in its facts was fers judicial powers upon an individual, it parallel in principle with the case at bar. confers them with full immunity from priThe court, in discussing the action of the vate suits. In effect, the state says to the officers in enforcing the police regulation, officer that these duties are confided to his said: “When so acting, their duties are of judgment; that he is to exercise his judg: a public character. Their acts are in the ment fully, freely, and without favor, and interest of civil government and of the pub- he may exercise it without fear; that the lic, and they are not, when acting in that duties concern individuals, but they conbehalf, the servants of the town or city in cern more especially the welfare of the state, its corporate capacity. The relations of and the peace and happiness of society; principal and agent do not then exist, and that, if he shall fail in a faithful discharge the town is not liable for their said acts in of them, he shall be called to account as a that behalf.” In Nisbet v. Atlanta, 97 Ga. criminal; but that, in order that he may 650, 25 S. E. 173, where the death of one not be annoyed, disturbed, and impeded in convicted in a corporation court and sen- the performance of these high functions, a

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