State ex rel. Brennan v. Dierker
74 S.W. 153
Mo. Ct. App.
1903
Check Treatment
GOODE, J.

We deem it unnecessary to consider and decide as to whether the record of the justice of the peace imports such absolute verity that evidence was inadmissible to show it was not based on any valid prosecution, and that the defendant in fact positively refused to plead guilty. It will be seen that the judgment is based on two supposed criminal charges, one for attempting to transport quail out of St. Charles county, and the other for hunting on Sunday. It is conceded by respondent’s counsel that Dierker had no right to arrest the appellant for the latter offense without a warrant, because, if committed at all, it was not committed in the sheriff’s presence and was a misdemeanor; as to the other charge, the contention of the respondent is that an arrest without a writ was authorized by the statutes. Without passing on the question of whether the appellant is barred of his action by a plea of guilty to that charge, let us admit for argument’s sake that he is not and ascertain whether this action will lie if the arrest was illegal.

We think the law is that if the sheriff committed a tort in taking the appellant into custody without a warrant, an action for it will not lie on his official bond. Pea.ce officers, in the absence of an empowering statute, have no authority to arrest an individual for a misdemeanor without process, except on view; that is, when they witness the perpetration of the offense. State v. Hancock, 73 Mo. App. 19; State v. Davidson, 44 Mo. App. 513; State v. Underwood, 75 Mo. 230; State v. Grant, 76 Mo. 236; State v. Holcomb, 86 Mo. 371. And for an illegal arrest they are always liable personally to the injured citizen; but their bondsmen are not always liable.

*644A distinction which formerly enjoyed a wider vogue than it does now, is taken between the acts of a sheriff or other executive officer done by virtue of his office or virtute officii, and acts done under color of his office ox colore officii; and there have been many decisions that the officer’s sureties are responsible for acts of the first sort when they are illegal, but not for those of the second sort. This distinction is subtle and having' proven barren of wholesome results, in recent well-considered judgments, it has given place to the rule that illegal acts done only colore officii lay the bondsmen liable if the illegality consists in an abuse of authority instead of an outright usurpation. Hawkins v. Thomas, 3 Ind. App. 399. Whether this doctrine is more tangible than the other or more likely to work satisfactorily remains to be seen; and it may well be doubted whether an official’s sureties ought not to answer for any of his misconduct under color of office, unless it is apparent he made a pretext of his authority to gratify personal malice or accomplish a personal end. In this case it is plain that Dierker thought he was doing right, and he pointed the appellant to his bond as a means of redress if it turned out the arrest was unlawful.

But the cases in this and other courts have established the law as stated and furnish the rule of decision by which the present controversy must be settled.

In State ex rel. v. McDonough, 9 Mo. App. 63, the court held that an action could not be maintained on the bond of McDonough, as chief of police of the city of St. Louis, for a wrongful and malicious arrest under color of his office without a warrant, and in support of the decision Ex parte Reed, 4 Hill. 572, was cited. The authority of the latter case was shaken, perhaps, in People v. Schuyler, 4 N. Y. 173, wherein it was held that a sheriff and his sureties were liable on the sheriff’s official bond when he, by a writ of attachment against one person, seized the goods of another; and this is the rule in Missouri. State ex rel. v. Moore, 19 *645Mo. 370; State ex rel. v. Fitzpatrick, 64 Mo. 185; State ex rel. v. Hope, 88 Mo. 430; State ex rel. v. Hadlock, 52 Mo. App. 297; State ex rel. v. Edmundson, 71 Mo. App. 172. It is also tie general rule elsewhere. Lamison v. Feusier, 111 U. S. 17; Holliman v. Carrolls Admr., 27 Tex. 23; Forsyth v. Ellis, 4 J. J. Marsh. 299. And it has been held that the arrest of a person, under a writ issued for another person, renders the officer and his bondsmen liable. Clark v. Winn, 19 Tex. Civ. App. 223.

In Warrensburg v. Miller, 77 Mo. 56, the Missouri Supreme Court decided that the action of a town marshal in seizing, under color of his office, personal property for taxes, constituted ground for an action on his bond, although the levy was illegal and the process under which he acted void. To the same effect is State to use v. Shacklett, 37 Mo. 280, in which the process under which a sheriff seized property was void.

Those decisions seem to be inconsistent in principle with State ex rel. v. McDonough, supra, and the cases which hold that no action can be maintained on an official bond for an arrest made without process or under void process. If an officer acts entirely without process in arresting a citizen, the theory of the courts is that such high-handed and illegal conduct was never contemplated by either his bondsmen or the State and, hence, was not meant to be covered by the security given for his official behavior. And there is some reason in this theory, the fault of the law consisting chiefly in the fact that it is not always followed, whereby confusion has been introduced among the precedents.

The decisions frequently turn on- the terms of the instrument, some bonds being of much greater breadth than others and covering a wider range of.misconduct. Dierker’s bond was conditioned as follows:

“Now, therefore, if the said John H. Dierker shall faithfully discharge the duties of his office as sheriff, *646then the obligation to he void, otherwise to remain in full force and effect. ’ ’

That condition is less sweeping than certain undertakings of a. similar nature which have been ruled to embrace conduct of the character complained of in this action.

In some States there have been statutory changes of the common-law rule. Kelly v. Moore, 51 Ala. 364.

In a recent opinion by a very able judge, the law bearing on the question of whether Dierker’s arrest of Brennan was colore officii is thus stated:

“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 his 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 be done without process, then there is no such color of office as will enable him to impose a liability upon the sureties on his official bond.” Chandler v. Rutherford, 101 Fed. 777.

To the same general effect are Commonwealth v. Cole, 7 B. Monroe 25; Allison v. People, 6 Colo. App. 80; Eaton v. Kelly, 72 N. C. 110; McLendon v. State, 21 L. R. A. (Tenn.) 738; Cornell v. People, 37 Ill. App. 490; Gerber v. Ackley, 32 Wis. 233; Huffman v. Koppelkom, 8 Neb. 344, 12 Neb. 98. The subject is satisfactorily treated and the decisions reviewed in Hawkins v. Thomas, supra. It is stated in the note to McLen-don v. State, supra, that the weight of authority supports the rule declared in State ex rel. v. McDonough, supra.

*647Dierker thought he was acting officially when he arrested the appellant, based his right to do so on the fact that he was sheriff, and the appellant yielded to him for that reason. So far as Dierker is concerned the case is clear. Bnt his bondsmen mnst he considered and their rights are of prime importance in legal contemplation. Probably the confusion in snch matters has grown ont of the overweening tenderness of the law for sureties. Dierker’s bondsmen did nothing and their responsibility turns, not on whether he thought his conduct was official, but whether it was such as the law1 classes among acts done under color of office. As there are controlling precedents directly in point, we feel bound to follow them without regard to the principle they recognize being out of harmony with the one recognized in the decision of other causes which do not stand on facts exactly similar.

The judgment is affirmed.

Bland, P. J., concurs; Reybnrn, J., dissents, because he deems the decision in conflict with the decision of the Supreme Court in Warrensburg v. Miller, 77 Mo. 56; State to use v. Shacklett, 37 Mo. 280. The cause is, therefore, certified to the Supreme Court.