Bissell, O.
The offense for which the arrest was made was committed, if at all, by the violation of a municipal ordinance. To settle the rights of the plaintiff and determine the responsibilities of the defendant, the status of the individual who made the arrest must first be ascertained. The radical difference between the powers and duties of a regularly constituted 'police officer and those of a private person in respect of these matters make the inquiry fundamental and primary. A private individual could never take a person into custody or restrain him of his liberty because of the commission of such an offense. It was only in emergencies and because of the right of society to defend itself against sudden assaults that the private person might act. It is otherwise with an.officer; he may arrest [366]*366when he has reasonable grounds to suspect that a felony has been committed, and justify by proof of a ground which the law deems reasonable. The defense of an individual, however, must rest upon proof both of a reasonable ground and of the actual commission of the felony. This has been the law from the very earliest times. 1 Hale, P. C. 587; Beckwith v. Philby et al., 6 Barn. & Cress. 635; Neal v. Joyner, 89 N. C. 287; Rohan v. Sawin, 5 Cush. 281; Burns v. Erben, 40 N. Y. 463.
This rule has never been extended so as to protect the officer in case of an arrest for misdemeanor except it be committed, or his information concerning it be acquired under particular circumstances. Cooley on Torts, p. 174, and notes.
Wherever the right of a police officer to arrest for a misdebeen conceded, it has not been held to include an authority broad enough to embrace arrests for violations of municipal ordinances. To justify the arrest by'an officer for an offense of this description, a statute must be found clothing the officer with the right, which must be exercised under the circumstances designated by the enactment. Doubts have been expressed as to the constitutionality of the legislation upon this subject; but it may now be said to be fairly well settled that an ordinance of this sort will be taken as a ground of authority to the policeman, where jurisdiction on this matter is- expressly conferred by the general law of the state. White v. Kent, 11 Ohio St. 550; Pesterfield, etc. v. Vickers, 3 Coldw. 205. Í Wherever mreanor has
A statute upon this subject has been enacted in this state, and doubtless a policeman would be authorized to make an arrest-for a violation of a municipal ordinance where the offense was committed in his presence.
Such being the law, the importance of the preliminary inquiry as to Mr. Rust’s position becomes evident^ The question is disposed of in two ways. In the first place it is practically settled by the verdict of the jury, to whom was submitted the question, whether or not at the time of the [367]*367arrest Bust was acting as a special policeman under and by virtue of the commission and appointment, or whether he was acting as a representative and agent of the depot company. Upon this issue the jury found directly against. the appellants, and their verdict upon this subject may well be accepted as conclusive upon this appeal.
The evidence clearly tended to show that at this time Bust was in the employ of the depot company, which hired him and paid him his wages, and that practically he was under their orders, direction and control. While it may be true that in some minor particulars he took orders from the chief of police with reference to the disposition of the prisoners, and the time and way in which they should be turned over to the regular officers, in general he was under the direction and control of the superintendent of the depot company, to whom alone he looked for instructions, and whose orders he chiefly obeyed. As the evidence fully justifies the verdict, the court would not feel at liberty to disturb the finding regardless of the question of law involved in the matter. It is equally true that, as a matter of law, it cannot be held that Bust was a policeman acting as such at the time of the making of the arrest. ■ Whatever power as a police officer Bust had must be taken to be conferred by the commission which was issued to him by the mayor. This warrant would not clothe him with the authority of a police officer in the absence of power in the mayor to make the appointment; nor in the absence of this appointive power can the commission be taken as conclusive evidence of his right to assume the functions with which it apparently invests him. In 1883 the legislature granted a new charter to the city of Denver, which was in full force in April, at the time of Bust’s appointment. The charter provided for the establishment of a police department and defined the rights of the mayor in this respect. Article 5 contains whatever there is in the charter upon this subject. Its various sections contain a full statement of the requisites for the creation and organization of the police force of [368]*368the city. It delegates to the mayor whatever of authority he had to create or appoint a policeman, special or general. A casual examination of the charter will demonstrate that at the time the mayor issued the commission to Mr. Rust he had no power to appoint a. special policeman, except under certain emergencies and for certain designated purposes and for a certain period of time.
It is idle to contend that a power of appointment may be looked for in the ordinances adopted by the city, for a municipal government would be powerless to confer upon ' the mayor an authority greater than that expressed in the • charter. The authority of a municipal government over matters of this description is always defined by the statute and circumscribed by its limitations. In this case the charter confers authority solely upon the mayor in respect of this matter, and it must be taken that as to it the municipal government is without the power of restriction or extension, for nowhere in the statute is this power expressly granted to it. The power thus conferred upon the mayor is evidently not broad enough to include the right to appoint a special policeman for an indefinite period without confirmatory action on the part of the council, which must be held essential to the continued duration of a commission. Under these circumstances the defendant company failed to make the proof necessary to this defense.
"When they undertook to defend that which was plainly established tó be a wrong committed with their assent and by their direction, and by one of their duly constituted agents, the burden was upon them to show that the individual thus acting was protected by the authority produced in his behalf. It is evident that this defense was not established because the mayor who issued the commission was without power to thus commission a special police officer, and that Rust’s authority under the commission could not continue up to the time of the arrest. It is further evident that there was a failure of proof in this respect, because wherever there is a limitation upon the power of an official [369]*369who attempts to act, the evidence of his action must be presumed to be only of an act done subject to the limitation; and where parties contend that the appointment was confirmed by the common council, whereby their agent became a general police officer, with full powers as such, it is incumbent upon them to make proof of that municipal action which is essential to the creation of the authority.
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Bissell, O.
The offense for which the arrest was made was committed, if at all, by the violation of a municipal ordinance. To settle the rights of the plaintiff and determine the responsibilities of the defendant, the status of the individual who made the arrest must first be ascertained. The radical difference between the powers and duties of a regularly constituted 'police officer and those of a private person in respect of these matters make the inquiry fundamental and primary. A private individual could never take a person into custody or restrain him of his liberty because of the commission of such an offense. It was only in emergencies and because of the right of society to defend itself against sudden assaults that the private person might act. It is otherwise with an.officer; he may arrest [366]*366when he has reasonable grounds to suspect that a felony has been committed, and justify by proof of a ground which the law deems reasonable. The defense of an individual, however, must rest upon proof both of a reasonable ground and of the actual commission of the felony. This has been the law from the very earliest times. 1 Hale, P. C. 587; Beckwith v. Philby et al., 6 Barn. & Cress. 635; Neal v. Joyner, 89 N. C. 287; Rohan v. Sawin, 5 Cush. 281; Burns v. Erben, 40 N. Y. 463.
This rule has never been extended so as to protect the officer in case of an arrest for misdemeanor except it be committed, or his information concerning it be acquired under particular circumstances. Cooley on Torts, p. 174, and notes.
Wherever the right of a police officer to arrest for a misdebeen conceded, it has not been held to include an authority broad enough to embrace arrests for violations of municipal ordinances. To justify the arrest by'an officer for an offense of this description, a statute must be found clothing the officer with the right, which must be exercised under the circumstances designated by the enactment. Doubts have been expressed as to the constitutionality of the legislation upon this subject; but it may now be said to be fairly well settled that an ordinance of this sort will be taken as a ground of authority to the policeman, where jurisdiction on this matter is- expressly conferred by the general law of the state. White v. Kent, 11 Ohio St. 550; Pesterfield, etc. v. Vickers, 3 Coldw. 205. Í Wherever mreanor has
A statute upon this subject has been enacted in this state, and doubtless a policeman would be authorized to make an arrest-for a violation of a municipal ordinance where the offense was committed in his presence.
Such being the law, the importance of the preliminary inquiry as to Mr. Rust’s position becomes evident^ The question is disposed of in two ways. In the first place it is practically settled by the verdict of the jury, to whom was submitted the question, whether or not at the time of the [367]*367arrest Bust was acting as a special policeman under and by virtue of the commission and appointment, or whether he was acting as a representative and agent of the depot company. Upon this issue the jury found directly against. the appellants, and their verdict upon this subject may well be accepted as conclusive upon this appeal.
The evidence clearly tended to show that at this time Bust was in the employ of the depot company, which hired him and paid him his wages, and that practically he was under their orders, direction and control. While it may be true that in some minor particulars he took orders from the chief of police with reference to the disposition of the prisoners, and the time and way in which they should be turned over to the regular officers, in general he was under the direction and control of the superintendent of the depot company, to whom alone he looked for instructions, and whose orders he chiefly obeyed. As the evidence fully justifies the verdict, the court would not feel at liberty to disturb the finding regardless of the question of law involved in the matter. It is equally true that, as a matter of law, it cannot be held that Bust was a policeman acting as such at the time of the making of the arrest. ■ Whatever power as a police officer Bust had must be taken to be conferred by the commission which was issued to him by the mayor. This warrant would not clothe him with the authority of a police officer in the absence of power in the mayor to make the appointment; nor in the absence of this appointive power can the commission be taken as conclusive evidence of his right to assume the functions with which it apparently invests him. In 1883 the legislature granted a new charter to the city of Denver, which was in full force in April, at the time of Bust’s appointment. The charter provided for the establishment of a police department and defined the rights of the mayor in this respect. Article 5 contains whatever there is in the charter upon this subject. Its various sections contain a full statement of the requisites for the creation and organization of the police force of [368]*368the city. It delegates to the mayor whatever of authority he had to create or appoint a policeman, special or general. A casual examination of the charter will demonstrate that at the time the mayor issued the commission to Mr. Rust he had no power to appoint a. special policeman, except under certain emergencies and for certain designated purposes and for a certain period of time.
It is idle to contend that a power of appointment may be looked for in the ordinances adopted by the city, for a municipal government would be powerless to confer upon ' the mayor an authority greater than that expressed in the • charter. The authority of a municipal government over matters of this description is always defined by the statute and circumscribed by its limitations. In this case the charter confers authority solely upon the mayor in respect of this matter, and it must be taken that as to it the municipal government is without the power of restriction or extension, for nowhere in the statute is this power expressly granted to it. The power thus conferred upon the mayor is evidently not broad enough to include the right to appoint a special policeman for an indefinite period without confirmatory action on the part of the council, which must be held essential to the continued duration of a commission. Under these circumstances the defendant company failed to make the proof necessary to this defense.
"When they undertook to defend that which was plainly established tó be a wrong committed with their assent and by their direction, and by one of their duly constituted agents, the burden was upon them to show that the individual thus acting was protected by the authority produced in his behalf. It is evident that this defense was not established because the mayor who issued the commission was without power to thus commission a special police officer, and that Rust’s authority under the commission could not continue up to the time of the arrest. It is further evident that there was a failure of proof in this respect, because wherever there is a limitation upon the power of an official [369]*369who attempts to act, the evidence of his action must be presumed to be only of an act done subject to the limitation; and where parties contend that the appointment was confirmed by the common council, whereby their agent became a general police officer, with full powers as such, it is incumbent upon them to make proof of that municipal action which is essential to the creation of the authority.
It is contended upon argument that the commission was conclusive upon the question of the existence of the authority which it apparently delegated, and that it must be presumed to have been issued under those circumstances which are essential to the exercise of the power of appointment. However true this may be, and however applicable it may be under certain circumstances, it cannot be conceded that the courts are without the right to investigate the existence cand extent of the power of appointment in the executive who undertakes to exercise it. The authorities which hold that the commission presupposes the regularity of all proceedings antedating it proceeds upon the hypothesis that the executive issuing the commission is clothed with the power which he has attempted to exercise.
Wherever the statute contains an express limitation upon the power, and the appointment is shown to be within the prohibition expressed, or wherever an appointment may be made with or without a limitation of time for its duration, the commission cannot be taken as conclusive evidence, either of the legality of the appointment or its duration. The contention, in this particular, might easily be conceded, and yet it be held that it is incumbent upon the defendant, when he makes a defense by commission under these circumstances, to make proof which shall show it to be a continuing and existing authority.
Rust was in the simple position of an agent of the depot company, acting in their behalf and by their direction, and without such police authority or right as is essential to a successful defense in an action for the unauthorized arrest. That a corporation is responsible for a wrong committed [370]*370by their agent acting in their behalf and under their authority is well established, and the reasons supporting the doctrine need not be expressed. State v. Morris & Essex R. R. Co., 23 N. J. L. 369; D. & R. G. R. R. v. Harris, 122 U. S. 597; Krulevitz v. Eastern R. Co., 143 Mass. 288.
It is insisted that the verdict is excessive, and that for this reason the judgment should not be permitted to stand. A very strong argument in favor of this contention is based upon the necessity which exists in all large cities to control and regulate the traffic carried on at its railroad terminals. The right of corporations in control of depots and railroad terminals to make rules and regulations for the due restraint and control of the business within those limits must be conceded. The immense number of passengers and the enormous amount of baggage which must be disposed of, the outside aids absolutely essential to the due transaction and proper handling of this traffic, necessitate the concession that the company must have the right to make such rules and regulations as may, by experience, be found essential to its control, regulation and' safety. The absence of any necessity for the course pursued in this case is an answer to the contention that the affirmance of this judgment will result in the abrogation of all authority to control and regulate railroad traffic at such points. At the time that the arrest was made there was no attempted interference with either the property of the corporation, the privileges of its officers or agents, or the rights of any passengers. So far as the case discloses, if the carriage of passengers was solicited by the plaintiff, under the direction of the Denver transfer company, it was not done at the depot, but upon the train, and not within the limits of the municipality. The right to do this identical thing had been continually asserted by the transfer company and its agents whenever it was denied by those who represented the depot corporation. The difference of opinion on this subject had resulted in numerous arrests, and the complaints filed against the persons arrested had been dismissed as often as [371]*371they were brought to a hearing. There was nothing, then, in the circumstances which required immediate action on the part of the depot authorities, either to save the passengers from annoyance or to protect the company in its rights. The argument ah ineonvenienti falls to the ground, :and it remains to determine whether, under the general rules covering this class of cases, the verdict should be taken as excessive. The situation of the controversy seems to furnish an answer to the argument. The case has been thrice tried. The first trial resulted in a disagreement; the other two trials resulted in a verdict for the plaintiff. The first verdict was for $5,000, which was set aside and the case again submitted to the jury, which assessed the damages at $3,000. Whatever may be the personal judgment of this tribunal as to the extent of the injury, these successive verdicts ought to control the determination. Interest reipxMiccs, ui sit finis litium. It is a case peculiarly within the province of a jury. Their right to assess the damages within any apparently reasonable limit ought not to be interfered with. An examination of all the cases upon both sides of this question clearly demonstrates that there is no uniform rule by which the amount of damages can be measured. There is the widest diversity of opinion among the courts as to the judgments which shall be allowed to stand. The range is wider, probably, in such cases than in any other. Richmond v. Roberts, 98 Ill. 472; Draper v. Baker, 61 Wis. 450; Ga. Southern R. R. Co. v. Biglow, 68 Ga. 219; I. & G. N. R’y Co. v. Gilbert, 64 Tex. 536.
The current of authority will not support the contention that the verdict is excessive.
It was a most unwarrantable interference with the personal liberty of a citizen under circumstances indicating an oppressive use even of a supposed authority. The law would have been as well vindicated, the rights of the public conserved, and the corporation protected in the transaction of its business by a prosecution in the regular courts. Under these circumstances, and in view of the large discretion left with juries as to the damage which shall be allowed in [372]*372oases of this description, the verdict cannot be disturbed. These considerations dispose of all the questions that require discussion.
Exceptions were taken to rulings upon the admission and exclusion of testimony, and to some of the instructions which were given to the jury. Under the principles expressed in this opinion these objections were not well taken, nor are they deemed of sufficient general importance to necessitate a discussion to sustain the action of the trial court in these particulars.
There are no errors apparent which will necessitate a reversal, and it is recommended that the judgment be affirmed.
Richmond, 0., concurs. ■
Reed, 0., dissents.
Per Curiam.
We'have decided to adopt the conclusions reached by the honorable commissioner in the foregoing opinion upon such matters as are essential to sustain the judgment of the court below. While the damages are' unusually large for such a case, we do not feel warranted under the circumstances in disturbing the judgment of the court below on this account. Three different juries tried the case, two returning verdicts, the first verdict being almost double the one before us. It is only when the amount of the damages found by the jury is so great or so small as to clearly indicate that they were influenced, by passion or prejudice that courts of last resort will interfere. Some deference should also be paid to the action of the trial judge, who hears the testimony of the living witnesses. The weight of his opinion supporting that of the jury is an additional reason for not interfering upon appeal. It has been said that in such cases the wrong must be very gross and the damages enormous for the court of review to interpose upon the ground of an excessive award. The judgment of the court below is affirmed.
Affirmed.