Prell v. McDonald, 7 Kan. 426

The opinion of the court was delivered by

Valentine, J.:

This was an action for false imprisonment. The judgment below was for the defendants, and the plaintiff brings the case to this court. It is seldom that a case is brought to this court that presents so many nice and difficult questions as this case does. Some of them have never been submitted to a court of last resort. Others of them have been before such courts, and the decisions upon them are conflicting. ’ We have examined carefully all the questions in this case, and shall decide such of them as is necessary to dispose of the case in this court, and in the court below.

*443i. cittmamhal; pohitVeputf-, 1867. I. It is admitted by the defendants that they imprisoned the plaintiff1; but they claim tha.t the imprisonment was neither illegal nor malicious. They claim that the . plaintiff1 violated a certain ordinance (No. 2) of the city of Fort’Scott, and that he was legally arrested, tried, convicted, sentenced, and imprisoned for such violation ;. and that during all these proceedings the defendant Benjamin Files acted as,, and was, the deputy city marshal of the city of Fort Scott, and the defendant John McDonald acted as, and was, the mayor of said city; and that as said city contained more than 1,000 and less than 4,000 inhabitants, he performed all the duties of a police judge for said city. (Ch. 68, Laws of 1867, p. 126, §21.) During the time-that these proceedings were had, the city of Fort Scott was governed by the act governing cities of the second class, (Laws of 1867, eh. 68, p. 107;) and while that act provided for a city marshal it did not provide for any deputy city marshal. Could there be a deputy marshal?’ John G. Harris was the city marshal; could he appoint a deputy? The statute alone did not authorize it. Did the statute, aided by the common law authorize it ?’ Counsel for defendants claims, that the marshal .was authorized to appoint a deputy by the following action of the city counsel, to-wit:

“ Counsel Chamber, Apr. 10th, 1867.

“ Special Meeting. — Mayor McDonald in the chair. Present, full board. * * * On motion, the city marshal was instructed to appoint a deputy immediately.. On. motion, adjourned.

“ Approved : John McDonald, Mayor.

“Attest: John Van Fossen, City Clerk.”

*4442. deputy jiAKsiiAit; when fprimSo beofficei o *443■ If it was necessary ‍​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌​‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​‌‌​​​​​‌‌​​‌‌‌​​‌​‌​​‍for the mayor and council to act at all in the premises, it seems from the statute that it was necessary that they should-have done so by ordinancer *444and not otherwise. Section 2 of article 3 of said ch. 68, Laws of 1867, (page 112,) provides that, “ The cities coming under the provisions of this act, in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes in addition to the other powers granted by this act: * ‘* * 14.-To provide for removing officers of the city for misconduct, whose offices are created and made elective by this act; and shall have power to create any office that they may deem necessary for the good government and interest of the city.” And section seven of the same act, page 108, provides that the style of all ordinances must be: “ Be it ordained by the Mayor and Councilmen of the City of— — .” And the mayor not only presides at all meetings of the city council, and gives the casting vote when the council are equally divided, (id., p. 109, art. 2, § 1,) but he also has power to sign or veto any ordinance passed by the city council; (id., p. 110, art. 2, §4.) If it was necessary that the office of deputy marshal should have been created by the mayor and council, was it legally created ? If the city marshal had authority from any source to appoint a deputy, was the defendant Files that deputy ? The evidence is clear and undisputed that he acted as such‘. It is proved beyond all doubt that he was deputy marshal de facto; and there is no evidence tending to show that he was not deputy marshal de jure, (provided of course that the marshal had a right to appoint a deputy.) The first question is whether it was necessary that A he should be an officer de jure. ¥e think it wag^ The action was directly against him, and for an act which he had no right to do unless he was an officer de jure. He had no right to imprison the plaintiff unless he was an officer de jure. The next question is whether proof that he was an officer defacto is sufficient, *445in the absence of any evidence to the contrary, to show that he was an officer de jure. We think it was. (Hilliard Hem. for Torts, 389; Colton v. Beardsley, 38 Barb., 29; Briggs v. Taylor, 35 Ver., 57.) There was also the parol evidence of the marshal showing that he by an instrument in writing, appointed the ..defendant Files deputy marshal. But as the writing was not produced, nor its loss accounted for, there is some question of the competency of such parol evidence.

s. Towns and fteMrporSfras. II. It is claimed that the plaintiff. violated a certain city ordinance. This was an ordinance “ to preserve the peace, order, and quiet of the city of Fort Scott,” and seems tó have been adopted February 16th, 1861. Had the city of Fort Scott any legal corporate existence at that time ? The‘acts of 1855 (ch. 40, p. 812,) and of 1860, (Private, ch. 54, p. 114,) providing for the incorporation of the town of Fort Scott, were neither pleaded nor proved by the defendants. Are these acts of such a public nature that the courts will judicially take notice of them without proof of their existence ? We think they are. (New Portland v. New Vineyard, 16 Me., 69, 70; Gorham v. Springfield, 21 Me., 58, 60; State, ex rel., v. Lean, 9 Wis., 284, 295.) Towns and cities are not private corporations ; they are public corporations, created for the purpose of governing a portion of the people of the State who may reside within their boundaries, or may casually be there, or have property there. In chartering such corporations the State in one sense charters a portion of itself. Such corporations are simply instruments in the hands of the State made use of for the better protection of rights, the administration of justice, and the enforcement of the laws. All their powers must be exercised for the general good of the community, and not for any selfish or private purpose. Laws creating *446such corporations we hardly think are private laws. We think there was sufficient evidence that the people of Fort Scott organized as a corporation under these laws. But even in the absence of any evidence to the contrary, we think it ought to be presumed that they did so organize. The evidence of the existence of said ordinance was sufficient. (Oomp. Laws of 1862, p. 108, § 11: ■Gen. Stat., p. 701, § 379.) The ordinance was read from the “ book of ordinances” of said city. We think it was unnecessary to go into the proof of all the preliminary steps in passing and publishing said ordinance. The book itself of ordinances was prima fade evidence of the validity of the ordinance. If anything essential ‍​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌​‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​‌‌​​​​​‌‌​​‌‌‌​​‌​‌​​‍to its “validity was omitted in passing or in publishing it, it then devolved upon the plaintiff to show such invalidity.

4. Arrests with-S¡ty°atoommoa law. III. It is questionable upon the evidence whether the defendant Files arrested or imprisoned the plaintiff at all prior to the said trial in the mayor’s court. But if he did, had he any right to do so‘? He ma(je arrest without any warrant, and the offense was not committed in his presence. (Ch. 68, Laws of 1867, p. 126, art. 5, § 1. It must be presumed from the evidence that the plaintiff committed the offense with which he was charged, which was a breach of the peace by fighting; and it must be presumed that the defendant Files made the arrest on sufficient information. In such a case he would not at common law be liable. (1 Chitty Cr. L., 15 ; Gwynne on Sheriffs, 522 ; J3ae. Abr., Trespass, (D.,) and authorities referred to in brief of counsel for defendants.

*4475, mayor; when ioiSfudge? and exercise -judicialpowers, *446IV. That the defendant John McDonald was mayor of Fort Scott cannot be questioned; but whether he was a judicial officer, or had the power to exercise any judicial functions, is controverted. It is claimed by counsel for *447plaintiff that §21 of art. 4 of said act, (Laws of 1867, P* 126,) is unconstitutional. and void. It is claimed that it attempts to confer judicial x ° power upon a ministerial officer. Or at least, it is claimed that it attempts in violation of § 1, art. 3. of the constitution, which vests all the judicial power of the State in courts, to confer-judicial power upon an officer who is not a court nor a judicial officer.- It is probably true that the mayor as mayor is not under said act a judicial officer; but when he exercises the powers and jurisdiction of the police .jipdge, as he is authorized to do under said § 21, in cities of the population of Fort Scott, he is certainly a judicial officer and a court. It is true that the statute does not in terms create him “ a court;” but it is also true that the statute does no,t in terms create the police judge a court, and we hardly suppose that counsel would claim that the police judge is not a court when exercising the powers conferred upon him by the statute. It has already been decided in this court, and we think rightly, that it is not necessary that the legislature, in order to create a court, or to confer judicial power, should first in terms create a .court: Malone v. Murphy, 2 Kas., 250; State v. Young, 3 Kas., 445. Whenever the legislature confers uppn any b.oard or officer powers which are unquestionably judicial in their nature, and when they also invest such board or officer with all the instruments and paraphernalia of a court, they undoubtedly create a court although they may not in terms say so.

6. False imprisonment. When arrest and imprisonment are illegal V. The next question is whether the defendant John - McDonald, as mayor and ex officio police judge, had jurisdiction to hear and determine whether the Prell, had committed any‘offense, jfo complaint, written or otherwise, was made *448before the may-or and against Prell except that the defendant Files told the mayor orally and not under oath that said Prell was charged with “ fighting and’ disturbance of the peace.” Fighting?. “Where; when; with whom; with what weapons ? Did the fighting and disturbance of the peace amount to a felony, or only to a misdemeanor? Was it to be prosecuted under the laws of the State, or under the city ordinances ? And was the prosecution to be a trial for the offense, or only a preliminary examination ? The mayor, under the statutes, had power to hear and determine all offenses against the city ordinances, and all misdemeanors against the laws of the State committed within the county; and he also had power to hear all preliminary examinations for felonies against the laws of the State committed within the county, and to require that the accused be held for his appearance at the next term of the district court to answer to the charge against him. No warrant was issued against or served on Prell prior to or during the trial; and the supposed offense was not committed in the presence of either McDonald or Files. Prell was not arraigned, nor was he required to plead; and he did not plead to anything. No jury was ordered or empanneled; but neither party claimed a jury. At the trial a witness was sworn and examined. The following is a full and complete record, (so far as it was reduced to writing,) of everything that was done in the mayor’s court, or by the court, from the commencement to the conclusion of the whole transaction. ‍​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌​‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​‌‌​​​​​‌‌​​‌‌‌​​‌​‌​​‍The first is the whole record of the case; the second is the warrant which was issued by McDonald, and under which Prell was imprisoned by Files:

i. — transcript prom docket.

“Fort Scott,May 25,1867. — Mayor’s Court. Brought *449before me, Lewis Prell and A. M. Heilman, charged with the disturbance of the peace of the city by fighting. Upon hearing the case and the testimony of-witnesses, they were each found guilty and fined five dollars each and costs, .and to stand committed until paid. On refusing to pay, commitment issued to marshal.

Fine, each, $5.00........................$10.00

Marshal............................... 2.25

Judge...................................... 1.65

Witness fees..............................50 — $14.40

“John McDonald, Mayor.”.

II. — COPY OR WARRANT. ,

“ City or Fort Scott, \

‘Bourbon County, Kansas, / ’

“ To the Marshal of the City aforesaidj greeting: Whereas, Heilman and Prell, of said city,‘have been arrested for a disturbance and breach of the peace, by fighting in said city, and have been examined by me, John McDonald, mayor of said city, on the truth of said charge, and I was of the opinion and found that such charge was true, and thereupon ordered said Heilman and Prell each to pay the sum of five dollars and costs of suit, and to stand committed until paid, which they each refused to pay. Wherefore the State of Kansas hereby commands you to receive the said Heilman and Prell into your custody, there to remain until discharged by due course of law. Given under my hand this 25th day of May in the year 1867. John McDonald, Mayor.”

Who is the plaintiff, and who is the defendant, in these proceedings ? They have no “ title,” as proceedings of courts usually have, informing us; and while it may be-ascertained from the body of the proceedings who the-defendants are, it is difficult to ascertain who the plaintiff is. Either the State or the city may prosecute for the offense of “ disturbance of the peace of the city by fighting,” or “ disturbance and breach, of the peace by fighting in said city;” and either may do so before the mayor. The mittimus informs us that it was the State that commanded the marshal to receive said Prell into his custody; *450but counsel for the defendants, McDonald and Files, informs us by his argument that it was the city that prosecuted the case. It would seem however, from the brief of counsel for Prell, that he claims that under section 17, article 3 of the constitution, “ The style of all process,” whether the prosecution be by the State or by a city, “shall be ‘ The State of Kansas,’ and all prosecutions shall be carried on in the name of the State,” whether they are under the laws of the State or under city ordinances.

7. Complaint “Sung6,md under oath. Had the mayor authority to hear and determine said case without any .complaint under oath, or without any written complaint of any kind whatever being r j o made or filed ? At common law, no trial for nr» , . . 1 t any oftense except contempts could ever be had except upon a written complaint. This written complaint was usually an indictment; but in certain prosecutions, called “ appeals,” it was a declaration; and in certain other prosecutions of an inferior character it was an information. (See Hawkin’s Pleas of the Crown, Attachments for Contempts, ch. 22; Appeals, chapters 23 and 24; Indictments, ch. 25; Informations, ch. 26; 4 BI. Com., Contempts, 283; Indictments, 302; Informations, 308; Appeals, 312.) Summary prosecutions and • summary convictions, except for contempts, were unknown to the common law; (4 Bl. Com., 280; Barbour’s Cr. L., 614.) In this State the common law has been adopted by statutory enactments, and every proceeding must be in exact accordance with the common law unless the common law has been expressly or by necessary and unavoidable implication dispensed with. If proceedings before police magistrates are summary proceedings, they are such only so far as the statute makes them so. They can draw nothing of a summary nature from the com*451mon law. Mr. Barbour in speaking of summary convictions says, that “ A conviction, to be good, must be founded on several preliminary proceedings. l.-There must be a complaint or charge against the person. * * * And it is said the only cases in which this document (the complaint) is properly dispensed with, are those in which justices are authorized to convict upon their own view.” (Barb. Grim. L., 614, 615.) Mr. Bishop says that “ There have been instances in this country of summary convictions on view, without complaint, oath, or evidence; but they are rare, and probably in most of our States the magistrate can proceed only on a written complaint, attested by the oath of the complainant.” (1 Bish. Crim. Proe., §894.) Mr. Ohitty says that “It is the duty also of the magistrate to take all charges, of whatsoever nature, kind, or complexion they may be, in writing.” (Ohitty Or. L., 34.) ■ In Archbald’s Or. Prac. and Pleadings, (page 31, note 1,) ‍​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌​‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​‌‌​​​​​‌‌​​‌‌‌​​‌​‌​​‍we find the following: “It is laid down by several writers, that it is the duty of the magistrate, independent of any statutory provision, to take all charges, of whatsoever kind or complexion they may be, in writing.” In the case of Allen v. Gray, 11 Conn., 95, 102, which was an action brought against a justice of the peace for trespass vi et armis, and false imprisonment, for entering a fine of $2.50 and costs against the plaintiff and causing him to he arrested on the complaint of a person who had no authority to make such a complaint, the court use this language : “ The process, then, was issued without complaint; and the only ques-ion is, whether such a process be void ? And this question would seem to be too well settled, both. on the ground of principle and authority, to admit of dispute. For although the justice had jurisdiction of the offense, and a right to issue process against the person of the *452plaintiff, he had no jurisdiction of this cause; an essential pre-requisite was wanting; there was no complaint. He was no judge; and the proceedings were utterly void.” The court held that the justice was liable. In the case of Tracy v. Williams, 4 Conn., 107, the court held that “A justice of the peace, after having arrested an offender against the riot act, on view, is not authorized, without a written complaint or information, to bind him over to a higher court for trial.” And, “If a justice of the peace‘, beforte whom an offender against the riot act, arrested on view, is brought to be further proceeded against, make an order, without a previous complaint or information in writing, requiring such offender to be recognized for trial, and on his refusal to comply with such order commit him to prison, such justice is liable in trespass for false imprisonment.” . In Maine it has been been decided that, ““Where criminal prosecutions originate upon complaint, one made under oath or affirmation is implied. This may fairly be understood as a part of the technical’ meaning of the term, whenever used in a statute providing for the prosecution of an offense in that mode.” (Campbell v. Thompson, 16 Me., 117, 120.) And if the justice proceed without a complaint having been made, he renders himself liable to an action.

But let us examine our own statutes: Under section 21 of article 4 of said chap. 68, Laws of 1867, all the powers and jurisdiction of police judges are conferred upon the mayors of cities containing more than 1,000 and less than 4,000 inhabitants. And the powers‘and jurisdiction of police judges are defined by said article, pages 123 ‘to 126. Under said article police judges have jurisdiction to hear and determine all offenses against the city ordinances; and to hear and determine all actions civil or criminal arising under the laws of the State which come *453within the jurisdiction of a justice of the peace; and to hear all prelijninary examinations which may be heard by a justice of the peace. Some of the sections of said article apply to actions arising under the laws of the State exclusively; some of them to actions under the city ordinances exclusively; and some of them to both kinds of actions. Sections three and eleven of said article relate more specifically to procedure. Section 3 makes provision for a complaint, and section 11 provides “That in all cases not herein specifically provided for, the progress and proceedings before the judge shall be governed by laws regulating proceedings in justices’ courts, in civil and criminal cases respectively.” It is claimed by counsel for defendants, that these two sections relate to actions arising under the laws of the State exclusively. Such will he conceded as to section three, but such cannot easily be conceded as to section 11. The words, “all cases,” in said section 11 mean all cases; and cases arising under the city ordinances are not “ specifically providing for” in any other part of the act. If said act had anywhere “ specifically provided for ” a mode of procedure for cases arising under the “ city ordinances,” why did not the counsel point it out to us? If police judges must adopt the procedure required in justices’ courts, then of course there must be a written complaint. But suppose that section II does not apply to cases arising under the city ordinances; then where does the mayor or police judge get authority for hearing cases without any complaint having been made ? “We know of no such authority, and none has been pointed out to us. * It is urged by counsel that the trial before a mayor is a summary proceeding. But the statute does not in terms or *454by implication’ make it a summary proceeding, or at most it does not in this respect.

8. warrant, inoSionsof°‘! ‍​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‌​‌​‌​‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​‌‌​​​​​‌‌​​‌‌‌​​‌​‌​​‍name; wiien v°id. VI. Was the warrant under which Prell was committed of any validity ? The Christian name of Prell was omitted, and there was nothing else in said warrant by which the Prell intended, could be identified and distinguished from any other Prell that may have been in said city. Usually, and perhaps always, such a warrant is void: Arch. Cr. Pr. and PL, 126, et seq., and note 1 on page 33; 1 Chitty Cr. L., 39; 2 Hawkin’s PL Cr., 259, §103. In fact, any instrument with a like defect is void. An indictment which does not mention the Christian name, nor otherwise describe the defendant, or other person therein intended to be mentioned, is void, and may be quashed. (Barb. Cr. L., 325, 328; 1 Whart. Am. Cr. L., §§235, 236; Whart. Pree. Indict., 5, note d; id., 8, note e.) And a deed of conveyance of real estate subject to a like defect is void for uncertainty. (Coke L., 3 a; Comyn’s Dig., Pait (E 3,) Grant (A 2,) Capacity (B 4;) 3 Washb. Real Prop., p. 566; 2 Hil. Real Prop., 505, 506, § 10.)

9. Liability; maifoe.a0ls’ If the proceedings of the mayor and deputy marshal were so irregular that they were void, as we think they were, then of course the mayor and deputy marshal are liable to the plaintiff for the false imprisonment although they may have acted in entire good faith. The authorities are too numerous to be cited; hence we will only refer to Bacon’s Abr., (Trespass, D. 3,) and the authorities there cited, and to Shear, and Redf. on Negligence, p. 197, §159, arid notes, and cases there cited. When an officer acts without authority, or exceeds his authority, he is liable, whether he acts maliciously or not. It is only when he acts within the scope of his authority that it is necessary that he should also *455act maliciously in order to make himself liable. As to the liability of officers for issuing or serving an irregular or void writ on the proper person, or on the person intended, see • the following -authorities: Scott v. Ely, 4 Wend., 555; Griswold v. Sedgwick, 6 Cow., 456; same case, 1 Wend., 126; Mead v. Hams, 7 Cow., 332; Gurnsey v. Lovell, 9 Wend., 319; Melvin v. Fisher, 8 N. H., 406; Shadgett v. Clipson, 8 East, 328; 6 Term R., 234; 1 Barn. and A., 647; 2 Camp., 270.

The judgment of the court below must be reversed, and the cause remanded for further proceedings.

All the Justices concurring.

Case Details

Case Name: Prell v. McDonald

Court Name: Supreme Court of Kansas

Date Published: Jan 15, 1871

Citation: 7 Kan. 426

Court Abbreviation: Kan.