stitute the basis of the prosecution; but they are independent facts, having no bearing on the question to be tried, of the guilt or innocence of the accused. They are just as consistent with the guilt of any other person as they would be with the guilt of the accused; and their establishment does not make a single step toward a conviction. If these facts are controverted facts, it may be that a person who has formed an opinion upon them ought to be excluded from sitting on the jury; but where they have no bearing on the guilt of the accused, and are likewise not controverted on the trial, it is plain that the juror is, in every material respect, impartial and competent."

witness, or who is in attendance as a witness, is competent to sit as a juror in the trial of a case. The case nearest in point is that of State v. Martin, 28 Mo. 530. Martin was indicted for stealing cattle. The juror, on his voir dire, stated that he knew the cattle alleged to have been stolen; that his brother had once owned them, and had sold them to a man named Kerr, who had subsequently sold them to the person alleged in the indictment to be the owner. The Missouri supreme court sustained the lower court in holding that the juror was competent on the express ground that the ownership of the cattle was not a controverted fact. The statute of Missouri provided that it should be a good cause 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 heretofore 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 a matter of convenience and he says he is. We have alluded to the posprecaution, and with a view to avoid the possible 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 usually set aside persons of ques-cur on the next trial. tionable competency when a bystander could be called in, without delay, who would be unexceptionable to all parties. It is probably because of this practice on the circuits and a very commendable one, too-that no cases of this sort have ever come up to this court. ... It is material to the prosecution to establish that the crime alleged was committed at a place within the county, for this is essential to the jurisdiction of the court. Does the knowledge that the alleged locality of an offense is within the county named in the indictment disqualify a juror from sitting on the case? We see at once that this fact, material as it undoubtedly is to the success of the prosecution, has no connection whatever with the guilt or innocence of the party accused, and that it is a fact known A municipal corporation is not liable probably to nine tenths of the inhabitants of the county, and, therefore, in all probability, will not be controverted on the trial. In an indictment for murder, the fact of the killing is an essential of crime; but would a man who accidentally was present at the burial of the murdered person, and saw his dead body, and knew him when alive, be excluded as an incompetent juror on the trial of a supposed manslayer? Such facts as we have referred to are material in one sense. They con

Inasmuch as the appellant was compelled to get rid of the juror Sperry by a peremptory challenge, the accused was deprived of one peremptory challenge to which he was by law entitled. For that reason, the judgment of the court is reversed, and the cause remanded for a new trial.

Reavis, Ch. J., and Hadley, Fullerton, Mount, Anders, and Dunbar, JJ., concur.

George E. SIMPSON, Appt.,

v.

City of WHATCOM, Respt.
(........Wash........ .)

in damages for the acts of its officers in arresting and prosecuting a person in the attempt to enforce a void ordinance enacted under apparent authority of the legislature, and which undertook to impose a license fee, for the benefit of the municipality, upon the use of bicycles in its streets.

(December 10, 1903.)

and imprisonment under invalid ordinance, see NOTE. As to municipal liability for arrest

also, in this series, McGraw v. Marion, 47 L R. A. 593, and note.

A

PPEAL by plaintiff from a judgment of the Superior Court for Whatcom County in defendant's favor in an action brought to recover damages for the attempted enforcement of an illegal ordinance. Affirmed. The facts are stated in the opinion. Mr. Marshall P. Stafford, for appellant:

Every municipal corporation has full general power to regulate the use of its streets. If, in the exercise of that general power, it passes an unconstitutional ordinance, that ordinance, though illegal, is not ultra vires in the sense that the municipality cannot be held liable for wrongs sustained in consequence of it.

2 Dill. Mun. Corp. 4th ed. § 771; Howell v. Buffalo, 15 N. Y. 512; Commercial Electric Light & P. Co. v. Tacoma, 20 Wash. 292, 72 Am. St. Rep. 103, 55 Pac. 219; Wendel v. Spokane County, 27 Wash. 121, 91 Am. St. Rep. 825, 67 Pac. 576.

Sutton v. Snohomish, 11 Wash. 24, 48 Am. St. Rep. 847, 39 Pac. 273; Saylor v. Montesano, 11 Wash. 328, 39 Pac. 653; Taake v. Seattle, 16 Wash. 90, 47 Pac. 220.

Mr. H. M. White, for respondent:

The state legislature delegates to the municipality the power and right to exercise the police power of the state within the limits of the municipality, and in the exercise of such right the municipality cannot be held liable in damages for the acts of its police officers.

Laurel v. Blue, 1 Ind. App. 128, 27 N. E. 301; Easterly v. Irwin, 99 Iowa, 694, 68 N. W. 919; Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949; Harrison v. Columbus, 44 Tex. 418; Taylor v. Owensboro, 98 Ky. 271, 56 Am. St. Rep. 361, 32 S. W. 948; Trescott v. Waterloo, 26 Fed. 592; Worley v. Columbia, 88 Mo. 106; McFadin v. San Antonio, 22 Tex. Civ. App. 140, 54 S. W. 48; Trammell v. 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.

For every wrong committed in the exercise of power conferred for its sole and exclusive benefit in its local affairs, an action lies against a municipal corporation.

McGraw v. Marion, 98 Ky. 673, 47 L. R. A. 593, 34 S. W. 18; 15 Am. & Eng. Enc. Law, p. 1141; 20 Am. & Eng. Enc. Law, 2d ed. pp. 1191 et seq.; 2 Dill. Mun. Corp. 4th ed. §§ 965 et seq.; Providence v. Clapp, 17 How. 161, 15 L. ed. 72; Maxmilian v. New York, 62 N. Y. 164, 20 Am. Rep. 468; Woodhull v. New York, 150 N. Y. 450, 44 N. E. 1038; Stewart v. New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218; Carrington v. St. Louis, 89 Mo. 208, 58 Am. Rep. 108, 1 S. W. 240; Shearm. & Redf. Neg. last ed. §§ 255, 281.

In making the affidavit on which the warrant for appellant's arrest was issued, and in arresting appellant by virtue of that warrant, the policeman acted as the agent of the respondent in its private local affair, and not as a peace officer of the state.

2 Dill. Mun. Corp. 4th ed. § 974; 20 Am. & Eng. Enc. Law, 2d ed. §§ 1204, 1205.

Even if respondent had not been responsible ex origine for the policeman's acts, it would have become so by its ratification and adoption of those acts.

2 Dill. Mun. Corp. 4th ed. § 971; Commercial Electric Light & P. Co. v. Tacoma, 20 Wash. 288, 72 Am. St. Rep. 103, 55 Pac. 219; Wendel v. Spokane County, 27 Wash. 121, 91 Am. St. Rep. 825, 67 Pac. 576.

If the adoption of the ordinance was an exercise of "police power," that fact does not aid respondent.

White, 57 Tex. 382; Ball v. Woodbine, 61 Iowa, 83, 47 Am. Rep. 805, 15 N. W. 846; 15 Am. & Eng. Enc. Law, p. 1141.

Regulation and control of bicycle riding in the city are a police regulation.

State v. Bruce, 23 Wash. 777, 63 Pac. 519; 22 Am. & Eng. Enc. Law, 2d ed. p. 929.

Dunbar, J., delivered the opinion of the court:

Respondent passed a municipal ordinance prohibiting the riding of bicycles of a certain size upon its streets unless a license therefor were procured and a tax of $1.00 a year paid for such license. The ordinance provided that 75 per cent of the revenue derived from such license should be expended on certain local improvements within respondent's municipal limits, and that the remaining 25 per cent was to be, and it was, mingled with and made a part of the general funds of the city for use in its local interests, benefits, and advantages. On the 15th day of August, 1900, one Shelley, a policeman of respondent city, made and swore to an affidavit before a police justice of the respondent, charging appellant with the violation of said ordinance by riding a bicycle on the public streets without having procured a license therefor. A warrant was issued, the said policeman arrested the plaintiff, imprisoned him for several hours, and caused him to be arraigned before a police justice on said charge. Appellant was prosecuted by the city attorney, and convicted and fined and a judgment for such 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 Massachudinance 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, in addition to the allegation that by reason of such charge, arrest, and trial appellant lost time to the value of $15, and was injured in his feelings and subjected to humiliation and disgrace, and caused mental pain and anxiety, to his damage in the sum of $2,500; asking judgment for $2,565. To this complaint, the substance of which we have given, the respondent city demurred. The demurrer was sustained, and, appellant refusing to plead further, judgment was entered in favor of respondent.

The issues arise on the ruling of the court in sustaining the demurrer to the complaint. The exact question involved in this case has not heretofore been presented to this court, and we have therefore made an exhaustive examination of the authorities bearing on the question. It must be confessed that they are somewhat bewildering, as well in number as in lack of harmony, viewed either from the standpoint of different conclusions from the same state of facts, or of the announcement of different principles controlling the same conclusions. So that it is not easy to reconcile all of the decisions and deduce therefrom a satisfactory general principle by subjection to which the different facts can be tested. The controlling question in all this character of cases is whether or not the officers to whom are attributed the delinquencies which resulted in the damages alleged are the agents of the city. If they are, then the doctrine of respondeat superior applies, and the city is liable; if not, other wise. We think it is a general rule--at least one which has been adopted by this court—that, even in the absence of a statute giving the right of action, cities are liable for acts of misfeasance and malfeasance injurious to individuals, done by their authorized agents or officers in the course of the performance of corporate powers or in the execution of corporate duties. But this raises the perplexing distinction between

or the neglect of the officer arises in the execution of a duty which is for the exclusive benefit of the city, the city is liable; but if the duty, in whole or in part, is one imposed upon the city as a public instrumentality of the state, the city is not liable. It is insisted by the learned counsel for the appellant that, inasmuch as the complaint shows that the ordinance provides that the revenues arising from the licenses sought to be secured shall go into the city treasury, the city is liable, under the rule announced in Dillon on Corporations, 4th ed. § 974; that if the duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they (the officers) may be regarded as its agents or servants, and the maxim of respondeat superior applies. But it does not necessarily follow that the duty is purely a corporate one because the reve nues arising from the provisions of the law go into the treasury of the municipality. If it is in the nature of a police regulation, a regulation which the legislature had a right to make, the legislature had a right also to distribute the powers of the government in the enforcement of its public policy, to constitute the

different municipalities enforcing agencies, and to distribute the revenues as it saw fit. It would certainly not be an unreasonable act on the part of the legislature to place the revenues arising from the law in the treasury of the municipality collecting them. And it cannot be disputed that the state, under its police power, has the right, in the absence of constitutional limitation or inhibition, to subject all occupations to a reasonable regulation where such regulation is required for the public welfare. The bicycle is a comparatively modern invention, and legisla tion in regard to it has been limited. Still it has been established by judicial decision that, so far as its use on the highways is concerned, it is to be regarded as a carriage

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 liability on that account to injure pedes trians who might come in contact with it, as well as the riders themselves, is a particularly suggestive subject for public legislation; and the legislature of this state, recognizing such necessity, passed a law, found in the Laws of 1899 at page 41, authorizing and empowering cities of the first, second, third, and fourth classes to regulate and license by ordinance the riding of bicycles, to construct and regulate the use of bicycle paths and roadways, prohibiting the improper use of such paths and roadways, and providing a penalty and declaring an emergency. This law authorizes the cities to establish and collect reasonable license fees from all persons riding bicycles, and to enforce the payment thereof by reasonable fines and penalties, and make provision for the distribution of the funds arising from such licenses. So that it will be seen that the ordinance was enacted in conformity with the express policy of the legislature in relation to controlling bicycles. Nor could Mr. Dillon, in the quotation relied upon by appellant, have had in view the kind of case under discussion here, for, after a discussion of the general principles relating to the liability of towns for the action of their officers, he continues, in § 975, as follows: "Agreeably to the principles just mentioned, police officers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties; and, accordingly, a city is not liable for an assault and battery committed by its police officers, though done in an attempt to enforce an ordinance of the city; or for an arrest made by them which is illegal for want of a warrant, or for other cause.

cense tax for the privilege of selling goods or merchandise of any kind at auction,— and while a few cases have followed the doctrine announced in that case, yet the same court, in Taylor v. Owensboro, 98 Ky. 271, 56 Am. St. Rep. 361, 32 S. W. 948, held that a municipal corporation was not liable for the acts of its officers in enforcing the penal or criminal laws of the commonwealth, or in enforcing penal ordinances of the city; and that municipal officers, while engaged in duties relating to the public safety and in the maintenance of public order, are the servants of the commonwealth. So that the court in the case of McGraw v. Marion, 98 Ky. 673, 47 L. R. A. 593, 34 S. W. 18, must evidently have concluded that the imposition of a license tax on transient persons was not in accordance with any provision of the general law, but for the sole and special benefit of the city. The difficulty in discriminating the cases on any reasonable theory, however, arises from the fact that the court in the case of Taylor v. Owensboro, 98 Ky. 271, 56 Am. St. Rep. 361, 32 S. W. 948, states that, while the ordinance under which the arrest purported to be made was void, the arrest was held to be authorized by a state statute, but says that the absence of the statute would have made no difference, for the reason that municipal corporations are auxiliaries of the state government; that the officers charged with keeping the peace are officers of the commonwealth; and a breach of the peace is an offense against the commonwealth, so that a municipal corporation is not liable for the acts of its officers in making a reasonable arrest for such breach. But whether or not there was any legitimate distinction that could have been drawn between the cases, both of them arising out of the police power of the state, it seems to us that the great weight of authority supports the first announcement of the Kentucky court as made in Taylor v. Owensboro, 98 Ky. 271, 56 Am. St. Rep. 361, 32 S. W. 948.

So, on the same principle, a person who suffers personal injury while aiding the police officers of a city, at their request, in arresting disturbers of the public peace under a valid ordinance, has no remedy against 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 an