Lead Opinion
This is an action for false imprisonment.
The plaintiff was, by defendant’s directions, arrested while engaged in giving a performance at a theater in the city of Grand Bapids on Sunday evening. There existed
1. The charter
This Court has repeatedly held that, in the absence of any statutory power or authority, an officer cannot arrest without warrant except on suspicion of felony, or in case of an actual breach of the peace committed in the presence of the arresting officer. See Way’s Case,
“We are not at present prepared to say that an ordinance of the city of Grand Eapids could authorize arrests without process in cases not justified by common-law principles.”
But this statement in this case was mere dictum, and, if the quaere suggested had been answered in the negative, it would not necessarily follow that the Legislature of the State might not confer a power which the common council of the city, under the charter then in force, could not have conferred.
In Robison v. Miner, it must be conceded, language is employed which might be construed as prohibiting the power of arrest. The statute there under consideration was Act No. 313, Laws of 1887, which contained the peculiar provision that—
“Any person found in the act of violating any of the provisions of this section shall be deemed guilty of a breach cf the peace, and punished accordingly, and the arrest therefor may be without process; and this punishment shall be taken to be in excess of all other manner of punishment in this act provided for a violation of the provisions of this section. All officers authorized to make arrests for a breach of the peace shall have like power to make arrests under the provisions of this section as in other cases of a breach of the peace.”
.These provisions are peculiar and incongruous. It seemed to have been án attempt on the part of the Legislature to confer the power of arrest by a process of first declaring that to be a breach of the peace which is not such in fact, and by further providing that a party might be punished for such breach of the peace in addition to and beyond the punishment provided by the same statute. The conclusion that these provisions could not be maintained, in view of the constitutional provision that no person shall be twice put in jeopardy for the same offense,
Campbell, in rendering the opinion of the Court:
“This statute is practically, if carried out, a general warrant itself, directing all officers to visit houses and business places without other authority, and make searches and arrests, and close up places of business on their own well or ill founded notion that the law has been violated.”
But, in the course of this opinion, Justice Campbell used language which seems to favor the contention of plaintiff here, as follows:
' “The Constitution prohibits interference with persons or' property without due process of law. The proceedings under this statute are all highly penal, and treated expressly as criminal proceedings. The Constitution expressly prohibits the issue of warrants of search or seizure of persons or property except on a sworn showing, which, it has always been held, must be of facts on personal knowledge such as would establish the legal probability of the cause of complaint. If the Legislature could evade this by providing for seizures and searches without legal warrant, the provision would be useless.”
As to the first provision of the Constitution referred to in the discussion, it means no more than that a person shall not be deprived of liberty except by the law of the land. As to the latter provision, namely, section 26 of article 6, which provides that “no warrant to search any place or to seize any person or things shall issue without describing them, nor without, probable cause, supported by oath or affirmation,” we are constrained to say that this section is not susceptible of the construction which, by implication, is placed upon it in the opinion of Mr. Justice Campbell. The same provision was considered by the supreme court of Alabama in the case of Williams v. State, 44 Ala. 43, and a contention that such provision prohibited an arrest without warrant was concisely disposed of as follows:
“The federal and state constitutions both provide that*423 no warrant shall issue to search any place, or to seize any person or thing, without probable cause, supported by oath or affirmation. As a warrant is the process upon which arrests are usually made, and it cannot be issued without oath, the corollary has been drawn that there can be no arrest without a warrant. The popular error on the subject is our excuse for the assertion of the truism that it is. the issue of the warrant, without oath or affirmation, which is forbidden, and not the arrest without a warrant.”
The statute under consideration in that case authorized an arrest by a policeman without a warrant,, on any day and at any time, for any public offense committed, or a. breach of the peace threatened, in his presence.
It may further be said that, if the constitutional provision last quoted is to be construed as might be implied, from the. language employed by Mr.Justice which existed at common law to arrest for offenses committed in the presence of the officer has been too often recognized since the adoption of our Constitution to be open to question. Mr. Justice Campbell uses the further language: it would exclude all arrests without
“ So far as arrests are concerned, a similar principle applies. Under our system we have repeatedly decided, in accordance with constitutional principles as construed everywhere, that no arrest can be made without warrant, except in cases of felony, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception in cases of breaches of the peace has only been allowed by reason of the immediate danger to the safety of the community against crimes of violence, and it was confined, even in such cases, to instances where the violence was committed in the presence of the officer.”
This language embodies a correct statement of the rule of common law, but, if it is sought to extend its application to a case where the Legislature has authorized the arrest without warrant for offenses, other than breaches of the peace, committed in the view of the arresting officer,
“The right of arrest by the "officers of the peace is more or less enlarged by statutory regulations in the several states, as well as, of late, in England; or, if not enlarged, defined. A statute enlarging the right, — -that is, in restraint of personal liberty, — is to be strictly construed. But statutei of this sort are generally held to be constitutional.
In Roberts v. State,
In Massachusetts the legislature has from time to time provided by statute for the arrest of persons guilty of a particular offense, including the offense of selling liquor contrary to law, and the of Fense of drunkenness, and the power of arrest without warrant for the commission of the offense has been repeatedly sustained. See Jones v. Root,
In White v. Kent,
“ It is evident that many ordinances necessary for good order and general convenience, as well as for the preservation of morals and decency, would be almost nugatory if offenders could only be arrested upon warrant.”
In Davis v. American Soc., supra, it was held that a statute authorizing an arrest, without process, of one guilty of cruelty to animals, was valid.
In O’Connor v. Bucklin, 59 N. H. 589, a statute
In State v. Cantieny,
It will be seen that the question has arisen in many of our sister states, and the power to authorize arrest on view for offenses not amounting to breaches of the peace has been affirmed. Our attention has been cabled to no case, nor have we’in our research found one, in which the contrary doctrine has been asserted. We think that, while the language in Robison v. Miner may furnish justification for the contention which is made by the plaintiff here, the language which we have referred to, bearing that construction, was not necessary to a determination of the question theye involved, and should not be followed.
£The right to arrest without warrant applies as well to felonies made so by statute after the adoption of the Constitution as to offenses which are felonies at the common law, and this without express legislation providing for such arrest; Firestone v. Rice,
2. Appellant also contends. that the verdict of the jury finding the defendant guilty should not be allowed to stand because of the inconsistency in the verdict rendered. The actual arrest, which was made by the direction of the defendant Eastman, was made by one Hurley, lieutenant of police. Hurley was joined with defendant Eastman, and upon the trial Eastman was found guilty, and Hurley not guilty. It does not appear whether the plaintiff has rested content with the verdict in favor of Hurley; but, while it may be that the jury rendered an inconsistent verdict, it does not follow that defendant Eastman can take advantage of it. The plaintiff could have nolle prosequied the case as against Hurley at any stage, and have proceeded to try the issue as against Eastman. The plaint
The circuit judge, however, erred in instructing the jury that the Legislature has not the power to authorize an arrest for an offense not amounting to a breach of the peace, without warrant, -if committed in view of the officer.
For this reason, the judgment will be reversed, with costs, and a new trial ordered.
Notes
Charter, 1891, p. 60; Local Acts of 1885, p. 88.
Dissenting Opinion
(dissenting). I am not prepared to overrule the doctrine of Robison v. Miner,
In Altor v. Wayne Co. Auditors,
“The Constitution has also provided that no one shall be deprived of liberty without due process of law, and ha's provided that no warrant shall issue except upon oath or affirmation establishing probable cause. It has been settled for centuries, and the doctrine has been recognized here,' that except in cases of reasonable belief of treason or felony, or breach of the peace - committed in presence of an officer, there is no due process of law without a war*428 rant issued by a court or magistrate upon a proper showing or finding.”
As was said by Mr. Justice Cooley in Weimer v. Bunbury,
“The Constitution makes no attempt to define such process, but assumes that custom and law have already settled what it is. Even in judicial proceedings, we do not ascertain from the Constitution what is lawful process, but we test their action by principles which were before the Constitution, and the benefit of which we assume that the Constitution was intended to perpetuate. * * * The bills of rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments, rather than reformatory, and they assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law, and thus secured against violation. We are, therefore, of necessity, driven to an examination of the previous condition of things, if we would understand the meaning of due process of law, as the Constitution employs the term.”
It may well be asked what principle was perpetuated or secured against abrogation or violation, if what constitutes due process of law is made to depend upon the will of the Legislature as expressed in any one of our many and varied municipal charters. If this constitutional provision be not regarded as a limitation of the power of the Legislature, then the statute is in each instance the test of authority, and the constitutional provision is without office or force. That provision is not necessary to support or protect the statute. The latter is to be construed in subordination to the Constitution, and is to be tested by that instrument. The term “ due process of law ” had a well-settled meaning when the Constitution was adopted, of which the framers of that instrument must be presumed to have had knowledge, and with reference to which it must be presumed that they acted. Subsequent legislation
The facts in many of the cases cited by my Brother Montgomery bring the cases clearly within rules as laid down by this- Court.
In State v. Cantieny,
In Beville v. State, 16 Tex. App. 70, the party was
In Wiltse v. Holt,
In Bryan v. Bates,
In Scircle v. Neeves,
In O’Connor v. Bucklin, 59 N. H. 589, the arrest was made under a statute providing that any officer, upon view of any crime or breach of the peace, or offense against the police, might arrest without warrant; but it does not appear just what the offense charged was. In Wiltse v. Holt,
Bouvier defines a breach of the peace as a violation of public order; an act of public indecorum. In People v. Johnson,
In White v. Kent,
The cases of Jones v. Root,
Roberts v. State,
Justice Campbell says:
“It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases 'where the public security requires it; and this has only been recog*432 n’ized in felony, and in breaches of the peace committed in presence of the officer. Quinn v. Heisel,40 Mich. 576 ; Drennan v. People, 10 Id. 169. It could not have been contemplated — inasmuch as we are bound to suppose the Legislature intended .to respect constitutional safeguards— that the station-house sessions would have occasion to deal with many cases of misdemeanors, nor with any when an arrest could be safely postponed. The occasions which would justify arrest without process must be very rare indeed in cases of vagrancy; and, in a city no larger than Detroit, persons charged with disorderly conduct can very generally be dealt with more legally and justly ip. the regular way, inasmuch as very much of it involves no immediate danger to public or private security.”
It seems to me that what is meant by the term “due process of law,” as employed in the Constitution, is not only well settled by this Court, but that its signification has been arrived at by the proper recognition of a well-recognized rule of constitutional interpretation.