Borough of Norristown v. Fitzpatrick

Mr. Justice Gordon

delivered the opinion of the court

The injury to the plaintiff, complained of in this suit, was occasioned by the firing of a cannon, in a public street of Norristown, by an assemblage of citizens, on the evening of the 31st of December 1875. The business in which they were thus employed was undoubtedly of an unlawful character, and each and every person therein engaged was personally liable for any damage resulting therefrom. But that the municipality was so liable is another and a very different question. Municipalities are not conservators of the public peace; they may or may not have the power to appoint police officers, but if they have such power, and do make such appointments, the powers of the officers so appointed are derived not from municipal ordinances, but from the common law and Acts of Assembly. Hence, it was held in Elliott v. The City, 25 P. F. Smith 347, that the city was not answerable for. the negligent act of a police officer. A like doctrine, that police officers appointed by a city are not its agents or servants, and that it is not, therefore, responsible for their unlawful acts when in discharge of their duty, may be found in 2 Dill. Mun. Corp., sect. 773. The law upon this subject has been well stated by Chief Justice Bigelow, in the case of Buttrick v. The City of Lowell, 1 Allen 172. “Police officers,” says the learned chief justice, “can in no sense be regarded as servants or agents of the city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not render them liable for their unlawful or negligent acts. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties with -which police officers and constables are entrusted, are derived from the law, and not from the city or town under which they hold their appointment.”

It is thus apparent from authority, that for the neglect of the police officer, who stood by and permitted the firing of the gun to go on, the borough of. Norristown cannot be made liable. But if it is not responsible for the consequences of his neglect, then it is altogether exempt from responsibility. For if the municipality can act at all in the suppression of riots and other breaches of the peace, it must be through its burgess, justices, constables and policemen, and if they neglect their duty and refuse to act, the municipality is powerless. Then upon what ground can the defendant be held liable for the damages suffered by the plaintiff? Certainly not upon any principle of common law, for we all know that for damages resulting from the conduct of a mob or unlawful assembly neither city nor county, borough nor township, can be held, except by special statute. Is it, then, on the ground that the assemblage complained of obstructed the public street, and so became a nuisance which the borough was bound to remove ? But the difficulty of supporting the case on this theory is twofold: first, the jury has found that the street was not so obstructed that persons could not readily pass and repass, and that the injury resulted not from any such obstruction, but from the act of firing the gun. Second, admitting that a mob is a nuisance, and that of the worst kind, nevertheless, it is one that a municipal corporation cannot abate by the use of .ordinary appliances such as suffice for the removal of natural or material obstructions in or near a highway, resort must, therefore, be had to the police force, but, as we have already seen, for the doings or misdoings of those who compose this force the municipality is not liable.

The difference between those cases in which cities, boroughs and townships, have been held responsible for neglect, and the one in hand, is very wide. The maintenance and repair of highways, sewers, wharves, &c., belong to their immediate jurisdiction, and over them they alone have control, hence their responsibility. But the conservation of the peace is a great public duty, put by the Commonwealth into the hands of public officers: the judges, justices of the peace and mayors, the governors, sheriffs, constables and policemen; hence, cities and boroughs can no more be charged with damages resulting from their misconduct than can counties, townships, or the state at large.

The judgment of the court below is now reversed and set aside, and it is ordered that judgment be entered on the special verdict for the defendant.