
    Commonwealth for Use, et al. v. Boles, et al.
    (Decided November 10, 1914.)
    Appeal from Barren Circuit Court.
    Municipal Corporations — Officers, Agents and Employes — Liabilities on Official Bonds. — Tbe marshall of a city of the fifth class is not liable on his official bond for the acts of one-day policemen appointed pursuant to the provisions of Section 3629, Kentucky Statutes.
    C. H. HATCHETT for appellant.
    BAIRD & RICHARDSON for appellees.
   Opinion of the Court by

Judge Hannah

Affirming.

W. M. Williams instituted this action in the Barren Circuit Court, in the name of the Commonwealth for his own use and benefit, against John H. Boles and his bondsmen, as marshal of the city of Glasgow, to recover damages for alleged false arrest. By appropriate allegations, the details of the marshal’s appointment and qualification, execution of bond, and taking of the oath of office were set out in the petition; and it was furthér alleged by appropriate allegations that plaintiff was .wrongfully arrested by B. B. Scott and Taylor Foster; that at 8:30 o’clock a. m. on October 4, 1913, Boles as marshal, appointed Scott and Foster and one Collins, as deputies or additional policemen to serve for a period of. twenty-four hours; and that the Mayor and City Council of the city of Glasgow concurred in this appointment, and a copy of the order of the council purporting to exhibit this concurrence was filed with the petition.

This order reads as follows: 4 4 The city council of the city of Glasgow, Kentucky, met pursuant to adjournment at 8:30 a. m., October 4th, in the city court room. Present, T. P. Dickinson, Mayor, and Councilmen Ellison, Allen and Currie. On motion of Councilman Ellison, seconded by Councilman Allen, it was ordered that B. B. Scott, Harry Collins and Taylor Foster be and they are hereby appointed special policemen for the city of Glasgow, Ky., for the next twenty-four hours. The said Scott, Collins and Foster took the oath required by law before Mayor T. P. Dickinson, and entered upon their duties. On motion and second, the council then adjourned.”

The defendants demurred to the petition, and the demurrer was sustained. The plaintiff declining to plead further, his petition was dismissed, and he appeals.

1. Glasgow is a city of the fifth class.- The powers and duties of a marshal of a city of the fifth class are defined in section 3629, Kentucky Statutes. In relation to the appointment of additional policemen, the statute contains the following:

“He may appoint, subject to the approval of the city council, one or more deputies, for whose acts he and his bondsmen shall be responsible, whose only compensation shall be fees for service of process, which shall be the same as those allowed the city marshal. He shall also, with the concurrence of the mayor and the city council, when the same may by them be deemed necessary for the preservation of public order, appoint additional policemen, who shall discharge the duties assigned them for one day only. "When the city council may deem it necessary, he shall also appoint a policeman, subject to the approval of the mayor and the city council, who shall hold office during the pleasure of, and whose compensation shall be fixed by the city council. Such policeman shall execute bond to be approved by the city council for the faithful performance of his duty.”

It will thus be seen that in addition to the regular marshal, the statute provides for three classes of additional peace officers: (1) deputy marshals appointed by the marshal subject to the approval of the council, who serve under the marshal’s own bond; the marshal alone determines the necessity or desirability of appointing these deputies; (2) one-day policemen appointed by the marshal with the approval of the mayor and council, who are to be appointed only when it is deemed necessary by the mayor and council, for the preservation of public order; and as to these, no provision is made concerning bond; and (3) when deemed necessary by the council, the marshal shall appoint a policeman subject to the approval of the mayor and council, who serves under his own independent bond.

It is apparent that the purpose of these provisions for appointment by the marshal of additional officers is that he shall be the head of the police force, and for this reason, even though the policeman serves under his bond, and even though the statute does not provide that the one-day men shall serve under the marshal’s bond, still it is desirable that no one should be selected for these places who would not work in harmony with the marshal himself.

The statute omits to provide that the one-day men shall serve under the marshal’s bond, and for this reason the demurrer was properly sustained.

It is unnecessary to consider the effect of the conflict between the allegation that the marshal appointed these one-day policemen, and the exhibit filed with the petition, which fails to show that the marshal had any participation in the appointment of the three men in question. Nor are the other questions raised material to be considered in the light of the ruling as to the sufficiency of the petition. The plaintiff has no right of action upon the marshal’s bond.

Judgment affirmed.  