Chandler v. Rutherford
101 F. 774
8th Cir.
1900
Check Treatment
THAYER, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

' It is now well settled, although the proposition was at one time disputed, that the sureties on the official bond 'of a marshal, sheriff, con*777stable, or other ministerial officer may be held liable when the officer having process in his hands commanding him to seize the property of one person in fact seizes the properly of another. In -such cases the trespass is not the act of a more individual, but is perpetrated colore officii, and for that reason the act imposes a liability on the officer’s sureties to the same extent as when, having a writ in his hands, he fails to execute it, or makes an excessive levy, or is guilty of some other wrongful or oppressive act in the execution of the process. Lammon v. Feusier, 111 U. S. 17, 21, 4 Sup. Ct. 286, 28 L. Ed. 337, and cases there cited; People v. Schuyler, 4 N. Y. 173; Holliman v. Carroll’s Adm’rs, 27 Tex. 23; Carmack v. Com., 5 Bin. 184; Forsythe v. Ellis, 4 J. J. Marsh. 299. But when an officer assumes to act under color of his office, having no writ or process whatsoever, or having process which on its face is utterly void, it seems to be the prevailing doctrine that whatever he may do under such circumstances imposes no liability on Ms sureties. To constitute color of office such as will render an officer’s sureties liable for his wrongful acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity. If he is armed with no writ, or if the writ under which he acts is utterly void, and if there is at the time no statute which authorizes the act to he done without process, then there is no such color of office as will enable him to impose a liability upon the sureties in his official bond. Thus, where a constable, by representing that he had an execution in his hands against the plainti ff, when he had no such execution, succeeded in collecting from the plaintiff a certain sum of money, it was held that the constable’s sureties were not liable. Com. v. Cole, 7 B. Mon. 250. And where a sheriff claiming to have an execution in his hands, but having no such process, sold lands, and received the proceeds, Ms sureties were held to be exempt from liability. Eaton v. Kelly, 72 N. C. 110. And where a warrant was issued to arrest certain unknown persons, their names not being specified in the writ, and an arrest was made thereunder, it was held that the warrant was void, and that the act of the officer imposed no liability upon his sureties. Allison v. People, 6 Colo. App. 80, 39 Pac. 903. And where an officer goes outside of the line of his official duty, and acts without the scope of his authority, such an act, though done colore officii, is not a breach of his bond for the faithful performance of his duty. State v. McDonough, 9 Mo. App. 63. See, also, Hawkins v. Thomas, 3 Ind. App. 399, 29 N. E. 157, and cases there cited, where it was held that when an officer, though he assumes to act as such, commits a wrong under circumstances where the law does not impose on him a duty to act at all, the wrong is not a violation of any official duty, and is not embraced within the sponsorship of the surety. In the case at bar the complaint shows that at the time of the attempted arrest of Flave Carver the marshal’s deputy had no warrant for the arrfest of any one, and no warrant had in fact been issued on account of the supposed offense, but a statute of the state of Arkansas (Mansf. Dig. § 2002) was in force in the Indian Territory, which is as follows:

“A peace officer may make an arrest: First, in obedience to a warrant of arrest delivered to liim. Second, without a warrant where a public offense is-*778committed in liis presence or where he has reasonable grounds for believing-that the person arrested has committed a felony.”

The contention is that, as this statute authorizes an arrest without warr.ant in two instances, the deputy marshal must be regarded as having acted colore officii in such a sense as will render the marshal and his sureties liable for the wrong committed. It will be observed, however, that no offense had been committed in the deputy marshal’s presence when he attempted to arrest the plaintiff, and that such knowledge as he had of an offense having been committed was derived wholly from hearsay. It is further noticeable that the complaint fails tó show that prior to the arrest the deputy marshal had been informed that the plaintiff was Flave Carver, or that any effort was made by the officer or any member of his posse to ascertain whether he was in fact Flave Carver, who had been accused of horse stealing, while it is expressly averred in the complaint that the arrest was attempted "without the exercise of reasonable diligence, or any diligence whatever, to ascertain whether or not the plaintiff” was the person whom they were looking for and seeking to arrest. It is clear, therefore, under the averments of the complaint, that, if the arrest had been consummated, without the use of firearms, or any unusual force or violence, the deputy marshal would have been guilty of a trespass, and could not have justified his conduct under the statute aforesaid, because, having no knowledge or information whatever as to who the person was whom he attempted to arrest, he cannot be said to have had any ground for believing that the plaintiff had committed a felony. When an officer seeks to justify an arrest without a warrant under a ¿statute like the one now under consideration and the act for which the arrest was made was not committed in his presence, it is manifest that he must show that he acted on information such as would justify a reasonable man in believing that the particular person arrested was guilty of a felony. Where he has no such information, but nevertheless makes an arrest, he acts entirely outside of the line of his duty and authority; as much so, we think, as an officer who arrests without a warrant where there is no law permitting an arrest without process. We are of opinion, therefore, that the facts stated in the complaint will not warrant a judgment against the marshal and his sureties in an action on the marshal’s bond. The liability on the bond, by the terms whereof the sureties agreed that the_ marshal and his deputies should faithfully perform the duties of his office, is purely contractual. Such an obligation is materially different from an undertaking by the sureties to be responsible for any wrongful act of the marshal and his deputies which they may commit under the pretense that they are discharging an official duty. When the marshal’s deputy undertook to arrest the plaintiff, he had no information, so far as the case discloses, which either required or authorized him as an officer to lay hands on the plaintiff, much less to make use of a deadly weapon for the purpose of arresting, him. The deputy’s act on the occasion in question was not only unauthorized, but it did not have the appearance of being done in obedience to the mandate of the law; in other words, he did not act colore officii in any such sense or under such circumstances as will render the sureties responsible. And while *779it may seem a hardship that the plaintiff should be remitted to his action against the individuals who were guilty of the outrage, yet it must he borne in mind that it would be equally unjust to impose on the sureties a. liability for a wrong in which they were in no wise concerned, and which is not within the terms of the bond. The judgment of the United States court of appeals in the Indian Territory and the judgment of the United States court in the Indian Territory, Northern district, are therefore affirmed. •