Casey v. Scott

101 S.W. 1152, 82 Ark. 362, 1907 Ark. LEXIS 357

• Court: Supreme Court of Arkansas
• Decided: April 22, 1907
• Status: Published

Opinion

Hhx, C. J.

Scott brought a, replevin• suit- for an .English foxhound, bitch against Casey, chief of-police, Crowell, .the .dogcatcher, and the city of Texarkana. , A-yerdict.in favor of the city was instructed, and a judgment, was rendered-against, the chief of police and the- dogcatcher, ¡and the, chief appealed .to this court. .The. dogcatcher did-,n.ot'.,appeal,,. ,L$any.;questions are presented and, discussed, but only ,one will be noticed,-as it is decisive of¡the,case.

Ah ordinance of-the city of Texarkana provided, for á dog tax and thp manner, of .collecting¡the--same, and. contained;..thjs provision: ¡‘‘The ,.chief ;of ..polioe shall «mpfoyr-3. >dogcatcher, whose duty If. shall be, tq catch-any and all dqgs found ¡r.unnihg; at large Upon the. streets upon which the tax has not been-paid, etc.!’ ' The dogcatcher was1-tq be paid' .50 cents for catching, .and 25 cents for caring for each dog. , ,, , ,,.

The gravamen of the charge herein is that the dog was illegally taken up and detained and cruelly neglected while in the pound, the result of which was her death since this suit was brought.

“It is a well-settled rule that a public officer is not responsible for the acts or omissions of subordinates properly employed by or under him, if such subordinates are not in his private service, but are themselves servants of the government, unless he has directed such acts to be done, or has personally co-operated in the negligence.” 23 Am. & Eng. Enc. (2d Ed.) p. 382.

A sheriff is responsible for his deputies, for they are acting in his private service in his name and stead, and are only public officers through him. A chief of police may select a police force, but he is not responsible far their acts, as each policeman is a public servant himself. So, under this ordinance, the dogcatcher was a public servant selected by .the chief of police, just as a patrolman would be selected by him, or a mayor or other appointing power.

There is no liability in such cases, unless the appointing officer fails .to exercise reasonable care in the selection of the appointee, a question not presented here.

There is testimony tending to prove that the owner of the dog made demand on the dogcatcher and tendered the proper fees for the dog, and the dogcatcher referred him to the chief of police .as to whether he could retake the dog on payment of the fees without paying the tax, and the chief decided he would have to pay the tax before he could retake the dog. If this tax was illegal, as claimed, the action of the owner was perfected against the dogcatcher in whose possession the dog wias. It is elemental that there must be possession, actual or constructive, in the defendant in order to sustain .replevin, and there is no kind of possession here shown in the chief of police. It is not proper to herein decide whether an issue might have been framed in an appropriate action against the chief for causing tihe dogcatcher to hold the dog for an alleged tax; certainly such an issue could not be framed in a replevin suit where the chief had neither actual nor constructive possession.

Reversed and remanded.