
    JOHN A. GRUMBINE vs. MAYOR, BOARD OF ALDERMEN, AND BOARD OF COMMON COUNCIL OF THE CITY OF WASHINGTON.
    At Law. —
    No. 6149.
    I. The late corporation of Washington City was not liable for the wrongful act of a police magistrate and of a member of the Metropolitan police force, committed in an attempt to enforce an unauthorized ordinance of the city.
    II. A police magistrate or a member of the Metropolitan police force is not a servant of the city in regard to whom the. doctrine of respondeat superior applies.
    III. The ordinance passed on the 27th day of May, 1857, by the corporationi of Washington City, regulating the sale of fresh meats in the markets-of the city, is not in violation of the charter. — MacArthur, J.
    This was an action commenced against the late corporation of Washington City in 1869. The declaration alleged that the defendants wrongfully and without authority óf law and in' disregard and violation of its charter, to wit, on the-27th day of May, 1857, passed a law in the following words, to wit:
    “It shall not be lawful for any person or persons to sell or offer for sale fresh meats of any kind in either of the markets, in this city except at the stalls or stands rented and known as butchers’ stalls or stands: Provided, however, That farmers, graziers, or raisers of cattle, may be-permitted to offer meat of their own raising in quantity not less than one-quarter of an entire carcass; and for each and every infraction of any of the provisions of this section the person or persons so offending shall forfeit the meat so offered for sale, and pay a line of not less than five nor more than ten dollars; the meat so forfeited shall be conveyed to the almshouse for the use of the poor; but nothing in this section shall be construed as applied to the sale of the meat of wild animals.”
    The declaration then avers that afterwards, to wit, on the-30th day of March, 1869, to wit, in the city aforesaid, the defendants, by their officers, agents, and employ és, to wit, one John T. C. Clarke, then a police magistrate in and for the city aforesaid, and one Patrick O’Hare, then a policeman in and for the city aforesaid, unlawfully, and by force and arms, arrested, seized, and imprisoned the plaintiff, and caused and procured the plaintiff to be arrested, seized, and imprisoned; and also, to wit, on the day and year lase afore, said, to wit, at the county aforesaid, levied, and caused and procured to be levied and collected from the plaintiff, a fine of $5; and also, at the said time, when, &c., the defendants, by their said officers, agents, and employés, unlawfully seized and “conveyed to the almshouse, for the use of the poor,” the property of the plaintiff, to wit, thirteen dead calves of large value, to wit, of the value of $100, to wit, in the city aforesaid, and caused and procured to be seized and “ conveyed to the almshouse, for the use of the poor,” the property of the plaintiff, to wit, thirteen dead calves of large value, to wit, of the value of $100, to wit, in the city aforesaid.
    The cause of action is variously stated in other counts to the same effect.
    The defendant demurred to the declaration because—
    1st. The defendants are not liable for the arrest and fine of plaintiff and the seizure of his property by a magistrate and policeman under color of a by-law passed in disregard and violation of their charter as a corporation.
    2d. There is no averment of special authority from the cor poration to the magistrate and policeman named as the tort feasors.
    3d. A municipal corporation is not liable for the judicial acts of a magistrate.
    4th. The defendants are not liable for the torts of a member of the Metropolitan police.
    5th. The second, third, fourth, and fifth counts do not aver any tort on the part of defendants.
    - The circuit court sustained the demurrer, and the case is now here on appeal.
    
      M. Thompson, for plaintiff, cited the following authorities as to the liability of the defendants :
    Green’s Brice’s Ultra Vires, 265, 269; ib., 261, 262, and note, and 618; 2 Dillon on Corps., 752; 2 ib., 770, and notes, &c.; 2 ib., 771; Angell & Ames on Corps., 311, 385; Howell vs. Buffalo, 15 N. Y., 512; Sumner vs. First Parish, 4 Pick., 361; Lee vs. Sandy Hill, 40 N. Y., 442 ; Sorland vs. Saint Louis, 36 Mo., 546; Allen vs. City of Decatur, 23 Ill., 332 ; 11 Gray, 345 ; Richmond vs. Long's Administrator, 17 Gratt., Va., 375.
    
      William Birney for defendant:
    1st. The ordinance in question is authorized by the charter of 1848, in force at the date of the ordinance.
    Charter, section 23, gives the right to regulate and establish markets; and section 25, to “pass all laws which shall be deemed necessary and proper for carrying into execution the powers vested in the said corporation.”
    The ordinance was a proper regulation to keep the sellers of meats to that part of the market which had been assigned to them.
    2d. If the ordinance is void, the corporation is not liable for acts of its officers under it.
    
      Anthony vs. Adams, 1 Metc., 284; Walling vs. Shreveport, 5 La. An., 660; Royland vs. Mayor, 1 Sandf., 27; Cuyler vs. Rochester, 12 Wend., 165; Swift vs. Williamsburgh, 24 Barb., 427; Starr vs. Rochester, 6 Wend., 564; Morrison vs. Lawrence, 98 Mass., 219.
    3d. The declaration should have averred that the corporation specially directed Messrs. Clarke and O’Hare to commit the wrong complained of, or approved and adopted their acts. 2 Dillon, 770, 773; Fox vs. Northern Liberties, 3 Watts & S., 103 ; Buttrick vs. Lowell, 1 Allen, 172.
    4th. The corporation is not liable for the wrongful acts of a police magistrate.
    The justices of the peace were appointed by the President. See act of May Í7,1848.
    By the 37th section of the Metropolitan police organic act, of August 6, 1861, the board of police was directed “to select and employ from among the duly appointed and qualified justices of the peace” police magistrates.
    By the 38th section, the police magistrates, so selected, were “empowered to hear all cases of offense against statutory, corporation, or common law, of which the board of police is charged by law with the execution.” All fines imposed were to be paid by said magistrates to the treasurer of the board of police.
    By the 5th section it was made the duty of the board of police to enforce all laws of the city properly applicable to police or health.
    5th. The corporation is not liable for the torts of a member of the Metropolitan police.
    The police, organized August 6, 1861, by act of Congress, was distinct from the corporation of Washington and independent of it. Neither the magistrate nor the policeman O’Hare was, in any legal sense, the officer of the city of Washington; the corporation had not appointed him ; could not control him in the discharge of his duties; could not continue him in office or remove him, and could not hold him responsible in any way for the manner in which he discharged his trust. The remedy in such cases must be sought against the officers personally. 2 Dillon’s Mun. Corp., 772, 779; The Mayor vs. Bailey, (Croton Dam Case,) 2 Denio, 433, 447; Walcott vs. S. Swampscott, 1 Allen, 101; White vs. Phillipston, 10 Metc., 108; Hafford vs. New Bedford, 16 Gray, 297; Grigg vs. Foote, 4 Allen, 195, 41; Buttrick vs. Lowell, 1 Allen, 172; Morrison vs. Lawrence, 98 Mass., 219; Russell vs. The Mayor, 2 Denio, 461, 481.
   Mr. Justice MacArthur

delivered the opinion of the court:

We think there is no foundation upon which this action can be maintained against the defendant. There is no averment in the declaration that the corporation specially authorized the magistrate who issued the process, or the policeman who executed it, to arrest the plaintiff or to convert his property, or that at any time subsequently it consented to the alleged injury, or ratified it in any manner. A justice of the peace or a police magistrate is not in any just sense an agent and servant of the city, in regard to whom the doctrine of respondeat superior applies. He exercises judicial authority, having jurisdiction in certain cases conferred by the statute. If be exceeds that jurisdiction, the corporation has no power to control him, nor can it direct the mode or manner in which he administers the law. Neither he nor the policeman are appointed by the corporation. Their duties in regard to preserving the peace and executing legal process are derived from acts of Congress. The tort set up in the declaration is .that Clarke, as police magistrate, and ■ O’Hare, as a policeman, wrongfully arrested the plaintiff, and •collected a fine from him, and conveyed to the almshouse, for the use of the poor, thirteen dead calves, the property of the plaintiff. But there is no allegation or pretense that- the property thus converted ever came to the use or posesssion of the defendant. It is admitted that these proceedings were resorted to for the purpose of enforcing the city ordinance set forth in the declaration. Now, whether this ordinance was without authority of law and in violation of the charter was a question which the magistrate had to determine for himself, and the corporation had no responsibility in regard to his decision. It was a judicial question. Can it be pretended, if he decided that the ordinance was not in violation of the charter, that the city would be liable for a mistake in that respect ? It might as reasonably be said that the District would be liable for an act of the United States marshal if, upon an execution issued by this court against the plaintiff, he should sieze the dead calves of another man. The only liability in such case is against the officer as an individual, and it has never been supposed that the public was at all to blame. It appears to the justice delivering this opinion that the ordinance in question Was authorized by the charter, but whether this is a correct interpretation can make no difference, as we do not think. the corporation was liablé for the wrongful acts of a police magistrate or of a member of the Metropolitan police force. Miller vs. Iron Company, 29 Mo., 122; Buttrick vs. City of Lowell, 1 Allen, 172; Fox vs. Northern Liberties, 3 Watts & 8., 103.

Judgment affirmed.  