McCleave v. City of Moncton

sixth and eleventh questions as to which a new trial THE has been ordered.

COMMERCIAL

BANK

The appeal must be dismissed with costs.

WINDSOR

(Oral).-We are all of opinion that the judgment appealed from is right and that the proper distinction has been drawn by Mr. Justice Gregory in coming to the conclusion that the city cannot be held liable for the acts of the constable Belyea in his effort to secure the observance of the statute.

In a case cited by Mr. Justice Gregory, Buttrick v. The City of Lowell Chief Justice Bigelow, in delivering the judgment of the Supreme Court of Massachusetts, whose decisions are justly entitled to the greatest respect, says:

from the city or town under which they hold their appointment.

For the mode in which they exercise their powers the city or town cannot be held liable. Nor does it make any difference that the acts complained of were done in an attempt to enforce an ordinance or

CIrY or by-law of the city.

The authority to enact by-laws is delegated to MoNcroN. the city by the sovereign power, and the exercise of the authority The Chief gives to such enactments the same force and effect as if they had been passed directly by the legislature.

They are public laws of a local and limited operation, designed to secure good order and to provide for the welfare and comfort of the inhabitants.

In their enforcement, therefore, police officers act in their public capacity, and not as agents or servants of the city.

And again he says:

If the plaintiff could maintain his position that the police officers are so far agents or servants of the city that the maxim "respondeat superior " would be applicable to their acts, it is clear that the facts agreed would not render the city liable in this action, because it plainly appears that, in committingthe acts complained of, the officers exceeded the authority vested in them by the by-law of the city.

This language is in effect repeated by Dillon in his work on Municipal Corporations (4 ed.) sec. 974, in discussing the applicability of the maxim "respondeat superior." He says:

When it is sought to render a municipal corporation liable for the act of servants or agents, a-cardinal inquiry is, whether they are the servants or agents of the corporation

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* they are elected or appointed by the corporation in obedience to a statute, to perform a public service, not peculiarly local, for the reason that this mode of selection has been deemed expedient by the legislature in the distribution of the powers of government, if they are independent of the corporation as to the tenure of their office and as to the manner of discharging their duties, they are not to be regarded as servants or agents of the corporation for whose acts or negligence it is impliedly liable, but as public or state officers with such powers and duties as the state confers upon them, and the doctrine of

"respondeat superior" not applicable.

I quite agree upon the question of fact with the court below that Belyea held his appointment from the corporation for the purpose of administering the general law of the land, and that the wrong complained of in this case was not committed by him while in the exercise of a duty of a corporate nature which was imposed upon him by the direction or authority of the It must, however, be added, in order that there may in future be no misunderstanding as to the effect of this decision, that in respect to torts, the law of Quebec may be quite different and that, therefore, the decision in this case ought not to bind this court in any cases of a similar nature occurring in the Province of Quebec. We have here to apply the common law as to torts as administered by the English courts solely, while in Quebec such matters are governed wholly by the provisions of the Civil Code.

I make these observations in consequence of what fell from my brother Girouard during the argument.

The appeal must be dismissed with costs.

W. B. Chandler.