2 Utah 284 | Utah | 1880
delivered the opinion of the court:
This is an action on the official bond of William Nelson, United States Marshal for Utah Territory, for an alleged false imprisonment of the appellant by Nelson. The action is against Nelson and his sureties on the bond. At the close of the testimony for the plaintiff below (appellant here) the court on motion of respondents, rendered a judgment of non-suit against the appellant, and thereupon he brings the case to this court.
We believe that the principal dispute here is as to the authority of the marshal to imprison the appellant where he did, the appellant claiming that the county jail was the only proper place for such imprisonment. He was kept in a building adjoining to and connected with the penitentiary.
The arrest and imprisonment was upon a warrant, regular in form, issued to the proper officer from a court having jurisdiction of the matter, and upon an indictment duly found by
The general rule is that a ministerial officer who arrests or holds a prisoner, under a process regular in form and issuing from a court having jurisdiction to issue the same, is justified in arresting and holding the prisoner.
But it may be said that this will not hold good if the officer transcends his authority. Did the officer transcend his authority in the case now under consideration?
The warrant commanded him to arrest the appellant and bring him before the court to answer the indictment, or if the court had adjourned for the term, to keep or cause him to be kept in custody until the further order of the court.
This was a direct command to keep the prisoner under the control of the officer, and until relieved by order of court, the officer had no means of releasing himself from that command. The court would hold that officer to whom the prisoner had been committed responsible for the prisoner’s appearance when called for by the court, and the turning over of the prisoner to any other officer, without any order of court to that effect, would be a’ violation of the command of the warrant, and subject the officer to punishment therefor. He could, no doubt, compel the jailer of the county to take the prisoner; the jailer would not be justified in refusing to receive him, but the officer must, as to the court, remain responsible for the body of the prisoner to be produced in court when called for by the court. Is it right to say that an officer shall turn over a prisoner to a jailer for safe-keeping, when the officer is responsible for the safe-keeping and may not have confidence in the jailer’s ability or will to keep the prisoner .safe? It would be great injustice to make such a requirement of an officer; knowing his responsibility, the only safe course for him to pursue is to have the prisoner subject to his supervision and control. In giving testimony in behalf of the appellant, the marshal testified that the penitentiary, with the buildings thereto pertaining, was in his custody, and that he
Let us suppose that the county jail is the only receptacle for prisoners not yet tried and convicted. If the county should not have a jail, as sometimes occurs in this Territory, and the county court tails to make provision to meet the emergency, and this sometimes, perhaps, occurs, must all who are charged and indicted for crime be turned loose upon the community? If the officer turns the prisoner loose he is subject to indictment himself. Yet, if the argument of the appellant be correct, the marshal is just in that fix that he is responsible if he keep the prisoners, and responsible if he lets them go. This is unreasonable, and the law was never intended to work such injustice. Yet it is urged that this is the law and that holding a prisoner at any other place than the county jail is a violation of the law. It is claimed further that it is forbidden, at least inferentially, by the law, to hold such prisoners at the penitentiary. We are aware that the penitentiaries are primarily intended for convicts, and that is the general use to which such places are put. It is not claimed that there is any express prohibition of their temporary use as a receptacle for prisoners held for trial. The statutes of the United States-puts the penitentiaries in charge of the Marshal, and further, the Ee-vised Statutes of the United States say that “ the Attorney General of the United States shall prescribe all needful rules and regulations for the government of such penitentiary, and the marshal having charge thereof shall cause them to be duly and faithfully executed and obeyed,” etc. (§ .1893.)
The marshal had control of the penitentiary under the Attorney General. His use of it was in accordance with those “ rules and regulations,” which he was obliged to have “ duly and faithfully executed and obeyed.” It is not shown that the marshal violated any of those “rules and regulations,” by
The law requires the marshal to safely keep such prisoners, and to do so he must have a reasonable discretion as to where he shall do so within his district. Mob violence might make the building selected in this case as a very unsafe place for the time being, and the marshal would certainly be justified in eluding the mob by selecting some other building or locality.
It is urged, however, that waiving objection to the place, the treatment of the prisoner was so maliciously cruel as to entitle him to damages.
The warrant being regular, and the court having jurisdiction to issue it, the officer is not liable, says Hilliard, without proof of express malice. Hill, on Torts, 184, 3d ed.
No such malice has been shown. Nothing whatever has appeared that would evince any intention on the part of the marshal to act cruelly toward the appellant. His conduct would evince the very contrary intention.
But, further, the doctrine is well established, we think, that a ministerial officer, in performing his duties, if he acts in good faith, is only liable for compensatory damages for injuries against law, and is not liable for exemplary damages. Clark v. Miller, 47 Barb. (N. Y.) 38; Barton v. Fulton, 49 Pa. St. 151; Sedgewick on Meas, of Dam. 520.
What acts of the marshal manifested anything else than the utmost good faith? There was no severity in appellant’s treatment beyond that severity which is a necessary incident to every imprisonment. The severity was that of the law and not of the officer. In some respects the marshal was very indulgent and mild toward the prisoner.
In a case where the officer is liable for compensatory damages, that is where no aggravation, no malice is shown — the law fixes the measure of dainages at the actual pecuniary loss
But, in the absence of such proof, it might be claimed that the jury could have found nominal damages; but we have been unable to find any authority for even nominal damages, unless there is proven at least a technical violation of duty by the offi er. We do not think that the officer has done anything except such as his duty required. He kept clearly within the law.
There is another branch to this case. It is a suit upon the ' official bond of tbe marshal, against him and his sureties, but charges false imprisonment and malicious cruelty. It is in form ex contractu, but in effect ex delicto. It charges upon contracts, and claims damages for a tort.
Only those persons, as a general rule, can be liable for tort, who are the actual participants or aiders and abettors. Sureties on official bonds may be guilty of aiding or participating in torts, but the simple fact that they are sureties on the bond does not show this. Here there is'nothing to show that the sureties knew anything whatever of this alleged tort, and of course they could neither aid nor abet the trespass to the person of the appellant. Thus the complaint blends an action on contract with an action for tort. This cannot be done.
Take all the circumstances together we see no reason to disturb the judgment of the court below, non-suiting the plaintiff below (the appellant here).
The judgment below is, therefore, affirmed with costs.
