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McIlhenney v. Wilmington

Supreme Court of North Carolina
Nov 1, 1900
37 S.E. 187 (N.C. 1900)


In McIlhenny v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L.R.A. 470, this Court held that a policeman is an officer of the State.

Summary of this case from State v. Hord


(13 November, 1900.)

1. MUNICIPAL CORPORATIONS — Liability for Torts — Officers.

A municipal corporation is not liable for the torts of its officers unless made so by statute.

2. MUNICIPAL CORPORATIONS — Liability for Damages.

Where a municipal corporation acts in its corporate capacity or in the exercise of powers for its own advantage, it is liable for damages caused by the torts of its officers or agents.

3. MUNICIPAL CORPORATIONS — State Officers — Policeman — Officers.

A policeman is a State officer and not an officer of the city.

ACTION by E. D. McIlhenney against the city of Wilmington, heard upon complaint and demurrer, by Judge Geo. H. Brown, Jr., at Spring Term, 1900, of NEW HANOVER.

From a judgment sustaining the demurrer, plaintiff appealed.

Herbert McClammy, for plaintiff. (149)

Iredell Meares, for defendant.

The defendant demurred to the complaint that it did not state facts sufficient to constitute a cause of action. The complaint alleged that the plaintiff, while quietly sitting on the steps of the bank, and not in any manner violating the laws of the State or city, was arrested in a brutal manner by one Temple, a policeman of defendant city; that the plaintiff, when brought before the mayor the following day, was discharged, after trial, on the ground that he had committed no offense, and the policeman was reprimanded by the mayor; that the policeman (Temple) was notorious for his cruelty and want of judgment in making arrests, having on previous occasions made arrests without justification and been reprimanded therefor, and that the mayor and aldermen who appointed him on the police force were acquainted with his character.

The court below properly sustained the demurrer. The law is too well settled to admit of debate. It may, on a review of the authorities, which are uniform, be thus stated: When cities are acting in their corporate character, or in the exercise of powers for their own advantage, they are liable for damages caused by the negligence or torts of their officers or agents; but where they are exercising the judicial, discretionary, or legislative authority conferred by their charters, or are discharging a duty imposed solely for the public benefit, they are not liable for the torts or negligence of their officers, unless there is some statute which subjects them to liability therefor. Moffit v. Asheville, 103 N.C. 237; Prichard v. Board, 126 N.C. 908; Hill v. Charlotte, 72 N.C. 55; Coley v. Statesville, 121 N.C. 316. In the present case the policeman was, as it were, a sheriff, or State officer, and the liability for any assault or tort committed by him was personal, as in the case (150) of a sheriff. The non-liability of municipalities in such cases is based upon the ground that they are subdivisions of the State, created in part for convenience in enabling the State to enforce its laws in each locality with promptness, and simultaneously, when occasion requires it, in the different subdivisions within its boundaries; and that while enforcing those laws which pertain to the general welfare of the State, and to the people generally in all its subdivisions, the State acts through these subdivisions, and uses them and their officers as its agents for the purposes for which a State government is instituted and granted sovereign power for State purposes; and, further, that the State has not made them the insurers of public or private interests, or liable for any careless or wilful acts of its officers. "Police officers can in no. sense be regarded as agents or servants of the city. Their duties are of a public nature, and their appointment is devolved on cities and towns by the Legislature as a convenient mode of exercising the functions of government; but this does not render the city liable for their unlawful or negligent acts." Buttrick v. Lowell, 79 Am. Dec., 721. "If such officers are elected or appointed by the corporation, in obedience to a statute, to perform a public service, not local or corporate, but because this mode of selection has been deemed expedient by the Legislature in the distribution of powers, they are not to be regarded as the agents of the corporation, but as public or State officers, with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior does not apply." Woodhull v. New York, 150 N.Y. 450. "With regard to the liability of a public municipal corporation for the acts of its officers, the distinction is between the exercise of its legislative powers which it holds for public purposes and as part of the (151) government of the country and those private franchises which belong to it as a creation of the law. Within the sphere of the former, it enjoys the exemption of the government from responsibilities for its own acts and for the acts of those who are independent corporate officers deriving their rights and duties from the sovereign power." Commissioners v. Duckett, 20 Md. 476.

A case exactly "on all fours" is Craig v. Charleston, 180 Ill. 154, which says: "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, can not commit a wrong through its officers in such a way as to render it liable for tort. It is contended, however, that the appellant does not base his right of recovery against the city upon the wrongful act of Apgar (a policeman) merely, but upon the wrongful act of the mayor in appointing such a man as Apgar, when he knew, or should have known, of his dangerous and vicious character. The same principle which 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 can not be cast upon the inhabitants and taxpayers of the city. A municipal corporation, while simply exercising its police powers, is not liable for the acts of its officers in the violation of the laws of the State or in the excess of the legal powers of the city. 2 Dill Mun. Corp., 950, 968; Odell v. Schroeder, 58 Ill. 353; Chicago v. Turner, 80 Ill. 419; Wilcox v. Chicago, 107 Ill. 334; Blake v. Pontiac, 49 Ill. 543."

Upon reason and authority, the defendant city is exempt from the liability here sought to be imposed upon it (152) equally whether it is for a tort or negligence, and whether the recovery is sought by reason of the misconduct of the officer in making the arrest, or in the act of the mayor and aldermen in appointing or retaining an unsuitable officer, with knowledge of his unfitness. In either aspect, the conduct of the officer is in the discharge of official and governmental duty, and the taxpayers of the city are not answerable in damages for official misconduct in the discharge of governmental functions in the absence of a statute making them so. It is true it is recited in Coley v. Statesville, 121 N.C. 316, that the municipality in that case had appointed suitable police; but that was only a circumstance to the credit of the defendant, and not a ruling, that if it were otherwise the town would be liable, for it is immediately added: "The defendant is liable only for failure to properly construct the prison, or to so furnish it as to afford reasonable comfort and protection from sufferings and injuries to health. Moffit v. Asheville, 103 N.C. 237; S. and R. Neg. (5 Ed.), sec. 291." In this section of S. and R. Neg. and notes, the points involved in the present case are found fully settled. The reason the town is liable in the particular pointed out in Moffit v. Asheville is, as there stated, because of a statutory provision.

The non-liability of a municipality for the torts or negligence of its officials, when acting within their governmental powers, is discussed, and held as settled, with citation of authorities. Dill. Mun. Corp. (4 Ed.), sec. 975, and cases cited; Cook v. Mayor, etc., 54 Ga. 468; Bartlett v. Columbus (Ga.), 44 L.R.A., 795. The above and many other authorities to the same purport are presented in the excellent brief of Mr. Meares, whose labors have been useful to the Court in preparing this opinion. The policeman Temple, if the facts are as alleged (153) in the complaint, is liable both civilly and criminally. Whether the same is true in regard to the mayor and aldermen, as seems to be intimated in State v. Hall, 97 N.C. 474, we express no opinion.


Cited: Moody v. State Prison, 128 N.C. 16; Levin v. Burlington, 129 N.C. 189; Williams v. Greenville, 130 N.C. 97, 99; Jones v. Comrs., 135 N.C. 224; S. c., 137 N.C. 606; Fisher v. New Bern, 140 N.C. 511; Hull v. Roxboro, 142 N.C. 456, 460; Metz v. Asheville, 150 N.C. 749; Light Co. v. Comrs., Ib. 560.

Summaries of

McIlhenney v. Wilmington

Supreme Court of North Carolina
Nov 1, 1900
37 S.E. 187 (N.C. 1900)

In McIlhenny v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L.R.A. 470, this Court held that a policeman is an officer of the State.

Summary of this case from State v. Hord

In McIlhenney v. City of Wilmington, 127 N.C. 146 (37 S.E. 187, 50 L.R.A. 470), the plaintiff had been arrested without warrant and without cause.

Summary of this case from Tzatzken v. City of Detroit
Case details for

McIlhenney v. Wilmington

Case Details


Court:Supreme Court of North Carolina

Date published: Nov 1, 1900


37 S.E. 187 (N.C. 1900)
127 N.C. 146

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