31 Haw. 559 | Haw. | 1930
This case is before us upon submission on agreed facts brought within the provisions of section 2371, R.L. 1925. From the agreed statement the following facts among others appear: The plaintiff, C.B. Machado, is and was at all times mentioned in the statement, except during the period of suspension referred to therein, a duly commissioned and acting police officer of the County of Maui. Eugene Bal is the duly elected and qualified and acting auditor of the County of Maui. On May 18, 1927, a warrant for the arrest *560
of Felipe Drapesa issued out of the Makawao district court and was handed to Machado, as police officer, for service upon the accused. Machado thereupon, in performance of his duty as such police officer, in good faith, proceeded to Keahua in said county to arrest the accused. In attempting to arrest Drapesa Machado met with armed resistance and in encountering said resistance, in attempting to apprehend Drapesa, Machado shot and wounded Drapesa. The facts and circumstances of said arrest are fully set forth in the opinion of this court in Territory v. Machado,
It was further agreed in said statement that the professional services rendered by counsel in the case of Territory v.Machado in the circuit court and supreme court were necessary for the proper defense of said case and that those rendered in the civil action for damages, entitled Drapesa v. Machado, were necessary to protect the rights of Machado in said cause; that said services have been rendered and that the amounts charged for the same, as set forth in said claim, are reasonable; that all the witnesses designated in the claim were subpoenaed by Machado and appeared and testified and that the amount charged for attorney's fees in said claim is correct; that the court reporter's notes of the testimony in Territory v. Machado were duly transcribed by the reporter and a certified copy of the record was prepared by the clerk and the amounts claimed therefor are correct; that there has been no dispute regarding the accumulated amount of salary claimed to be due Machado for the period of suspension. Demand has been made upon the auditor to draw his warrant upon the county treasurer in payment of said claim and the *562 demand has been refused though there are sufficient funds in the county treasury with which to pay the same. In said statement it is stipulated by the parties that judgment may be entered in this court in accordance with its views upon the agreed facts, either that C.B. Machado's claim is a lawful claim and that the auditor be directed to draw his warrant in payment of the same or so much thereof as the court may hold to be lawful, or that said claim is not a lawful one and that said auditor cannot draw a warrant in payment of the same. The items for which the Maui board of supervisors seeks to indemnify Machado are as follows:
In Territory v. Machado:
Witness fees __________________________________ $ 92.20 Attorney's fee, circuit court _________________ 350.00 Attorney's fee, exceptions to supreme court _____________________________________ 400.00 Transcript of evidence ________________________ 99.75 Transcribing record ___________________________ 23.75
In Drapesa v. Machado (civil proceedings):
Attorney's fees _______________________________ 100.00 Salary covering period of suspension __________ 298.30 _________ Total _________________________ $1,364.00
Three questions are presented by the foregoing statement. They involve the power or the lack of power of the supervisors, in the circumstances named, to indemnify Machado, first, for attorney's fees in the civil proceeding of Drapesa v. Machado, second, for attorney's fees, witness' fees and transcript in the criminal proceeding of Territory v. Machado, and third, for nonreceipt of salary covering the period of suspension. The foregoing points will be considered in the order in which they are herein stated.
(1) Upon the first point the authorities appear to be in substantial agreement. The rule is thus stated in 2 McQuillin, Mun. Corp. (2d Ed.), Sec. 532 (p. 218): "Where a municipal officer incurs a loss in the discharge of his official *563
duty in a matter in which the corporation has an interest and in the discharge of a duty imposed or authorized by law and in good faith, the municipal corporation has the power to appropriate funds to reimburse him, unless expressly forbidden. And this it may do although it may turn out that the officer exceeded his legal rights and authority. Thus where a mayor, who in the performance of the duties of his office, in good faith exceeds his authority which results in a judgment against him for false imprisonment, it is competent for the city to indemnify him for the expenses of such judgment" (citing in footnotes Sherman v.Carr,
No statute and no legal principle conflicting, we conclude that it is within the power of a county board of supervisors to indemnify a police officer for attorney's fees incurred in defending himself in a civil action for damages for injury inflicted by him in making an arrest in the circumstances above set forth.
(2) The auditor in his brief admits that "attorney's fees, civil case for damages, $100.00, might be legally paid, in the sound discretion of the board of supervisors," but urges that "nowhere in any of the cases cited nor in any case counsel for respondent has been able to find is there any authority for reimbursement of any public officer for expenses incurred in the defense of criminal charges," and submits that "to hold that Machado may be legally reimbursed for expenses of litigation in defending himself from the charges in the indictment would be contrary to law and contrary to public policy." In support of this position counsel for the auditor cites Schieffelin v.Henry,
As set forth in the earlier report of this case on exceptions in
The fact that in making the arrest Machado was acting in performance of his duty as a police officer, in good faith, was expressly admitted as hereinabove set forth. The arrest was for the benefit of the public whose agent he was. It was made under the command of a superior officer, whose order in the premises he could not have disobeyed without dereliction of duty. The arrest was not made in his own personal interest nor in any wise in his individual capacity, though he was under personal responsibility not to make the same illegally.
That the county may, in the circumstances and to the extent named, accept the burden of a civil defense, has herein already been decided. Section 1674, R.L. 1925, cited in support of that position, makes no distinction in this respect between civil and criminal cases and in our opinion none exists in principle. We conclude that the supervisors were acting within their discretionary power when they voted to indemnify Machado for the items named in the criminal proceeding.
(3) The suspension of Machado by his superior officer, the sheriff of Maui, followed the indictment of Machado by the grand jury and was expressly limited to the interval pending the disposition of the criminal charge in said indictment set forth. It did not purport to remove him from office nor to deprive him in any event of his pay but left those possible results to await a proper investigation of his guilt or innocence. After the entry of the nolle prosequi Machado was duly reinstated by the sheriff and his *568 salary, theretofore withheld, was directed by the board of supervisors to be paid to him. There is nothing in the statement of facts to justify a conclusion that the steps thus taken by the sheriff and the board of supervisors conflicted in any way with the terms of the original suspension. The word "suspension" itself carries with it no such hard and fast definition as to preclude its being treated with reference to the officer as meaning "temporarily relieved from duty," and with reference to his salary as meaning "temporarily withheld" — in each instance to await the result of investigation. In the circumstances named we conclude that the supervisors were fully empowered to deal with Machado's status as above defined and to vote him the salary thus withheld.
In conformity with the terms of the submission let judgment issue that C.B. Machado's claim is a lawful claim against the County of Maui and directing Eugene Bal, auditor of the County of Maui, to draw a warrant on the county treasurer of Maui county in favor of said Machado for the sum of $1364 in payment of said claim.