Annala v. McLeod

• Decision Date: 31 May 1949
• Docket Number: 8821.
• Citation: 206 P.2d 811,122 Mont. 498
• Parties: ANNALA et ux. v. McLEOD et al.
• Court: Montana Supreme Court

206 P.2d 811

122 Mont. 498

ANNALA et ux. v. McLEOD et al.

No. 8821.

Supreme Court of Montana

May 31, 1949

Appeal from District Court, Second Judicial District, Silver Bow County; William R. Taylor, Judge.

Action by Fred W. Annala and wife against Al McLeod, sheriff, and Standard Accident Insurance Company, surety, for damage to plaintiffs' property allegedly caused by certain disorderly and riotous persons. From an adverse judgment plaintiffs appeal.

Affirmed.

Tom J Davis, John K. Claxton, H. J. Freebourn, George D. Toole Harlow Pease, A. G. Shone, Harry K. Jones, William B. Frame, Arnold H. Olsen, Butte, for respondent McLeod.

P. E. Geagan, Butte, argued the case for respondent McLeod.

Alf C. Kremer, Rex F. Henningsen, Butte, argued the case for respondent Standard Accident Ins. Co.

R. M. HATTERSLEY, District Judge sitting in place of Mr. Justice Freebourn, disqualified.

Plaintiffs brought suit for damages against Al McLeod and his surety Standard Accident Insurance Company, alleging that certain disorderly and riotous persons on April 14, 1946, caused damage to plaintiffs' property in Silver Bow county and that the defendant Al McLeod as sheriff of Silver Bow county failed and neglected to carry out his duties as sheriff of such county as required by sections 4774, 11658 and 11659, R.C.M.1935.

Defendants filed separate general demurrers to the complaint. The demurrers were sustained. Plaintiffs elected to stand on their complaint and judgment was entered against them. This appeal is from that judgment.

The duties of a sheriff, so far as here applicable, are set forth in the following sections of the Revised Codes of Montana, 1935:

'4774. Duties of sheriff. The sheriff must:

'1. Preserve the peace.

'2. Arrest and take before the nearest magistrate, for examination, all persons who attempt to commit or have committed a public offense;

'3. Prevent and suppress all affrays, breaches of the peace, riots, and insurrections which may come to his knowledge; * * *

'6. Command the aid of as many male inhabitants as [of] his county as he may think necessary in the execution of these duties; * * *.'

'11658. Magistrates and officers to command rioters to disperse. Where any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his deputies, the officials governing the town or city, or the justices of the peace and constables thereof, or any of them, must go among the persons assembled, or as near to them as possible, and command them in the name of the state immediately to disperse.'

'11659. To arrest rioters if they do not disperse. If the persons assembled do not immediately disperse, such magistrates and officers must arrest them, and to that end may command the aid of all persons present or within the county.'

In the event of a riotous or turmultuous assembly, it was the duty at common law of the nearest magistrate to go to the scene of the riot and make his proclamation by 'reading the Riot Act,' and commanding the rioters to disperse upon the threat of condign punishment, sometimes capital, imposed by the law for failure to obey this command. 4 Blackstone 142.

The office of sheriff is one of great antiquity. As 'reeve of the shire' or 'shire reeve,' he was, during his term of office, supreme in rank to any nobleman within the limts of his county. He was a representative of the king, 'the first man in the county.' 1 Blackstone 339, 343.

In the United States it would appear that the duties of sheriff are substantially the same as they were at common law. He was and is the conservator of the public peace and not liable for an injury to the person or property of an individual occasioned from riotous assembly or mob, unless made so by Constitution or statute.

In Entick v. Carrington, 19 Howell's State Trials, 1029, 1061, Lord Camden remarks: 'No man ever heard of an action brought against a conservator as such; * * *'

Plaintiffs admit that at common law the sheriff was not liable for individual damages occasioned by a riotous mob.

In South v. Maryland etc., 18 How. 396, 402, 59 U.S. 396, 402, 15 L.Ed. 433, 435, decided April 21, 1856, in speaking of the sheriff, it is said: '3. As a conservator of the peace in his county or bailiwick, he is the representative of the King, or sovereign power of the State for that purpose. He has the care of the county, and though forbidden by Magna Charta to act as a justice of the peace in trial of criminal cases, he exercises all the authority of that office where the public peace was concerned. He may upon view, without writ or process, commit to prison all persons who break the peace or attempt to break it, he may award process of the peace, and bind anyone in recognizance to keep it. He is bound, ex officio, to pursue and take all traitors, murderers, felons, and other misdoers, and commit them to jail for safe custody. For these purposes he may command the posse commitatus or power of the county; and this summons, everyone over the age of fifteen years is bound to obey, under pain of fine and imprisonment. 4. In his ministerial capacity he is bound to execute all processes issuing from the courts of justice. He is keeper of the county jail, and answerable for the safe keeping of prisoners. He summons and returns juries, arrests, imprisons, and executes the sentence of the court, etc. etc. * * *

'It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment; but where he acts ministerially, and is bound to render certain services to individuals, for a compensation in fees or salary, he is liable for acts of misfeasance or nonfeasance to the party who is injured by them.

'The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment.

'The history of the law for centuries proves this to be the case. Actions against the sheriff for a breach of his ministerial duties in the execution of process are to be found in almost every book of reports. But no instance can be found where a civil action has been sustained against him for his default or misbehavior as conservator of the peace, by those who have suffered injury to their property or persons through the violence of mobs, riots, or insurrections.'

This was the condition of the law in the United States, except in states where changed or modified by Constitution or statute, on the 26th day of May, 1864, 13 Stat. 85, the date whereon Congress passed the Organic Act, constituting the Territory of Montana and declaring the common law to be part of the law thereof. Organic Act, sec. 9.

Section 201, Fifth Division Compiled Statutes of 1887 of the territory of Montana provided: 'That the common law of England, so far as the same is applicable and of a general nature, and not in conflict with special enactments of this territory, shall be the law and the rule of decision, and shall be considered as of full force until repealed by legislative authority.'

At the adoption of the Constitution in 1889, it was provided that all laws enacted by the legislative assembly of the territory, and in force at the time of admission into the Union, not inconsistent with the Constitution or laws of the United States, should remain in full force and effect as laws of the State, until altered or repealed. Constitution, Article XX, Section 1.

Sections 5672, 10703 and 10704, R.C.M.1935, have to do with the applicability of the common law and existing statutes at the time of the taking effect of the Codes, July 1, 1895. In State ex rel. La Point v. District Court, 69 Mont. 29, 33, 35, 220 P. 88, 89, it was said:

'Section 10704, Revised Codes [of Montana] 1921, is as follows: 'The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.' Referring to just what is meant by the 'common law,' in Aetna Accident & Liability Co. v. Miller, 54 Mont. 377, 382, 170 P. 760, L.R.A.1918C, 954, Mr. Justice Sanner said: 'Broadly speaking, it means, of course, the common law of England; but it means that body of jurisprudence as applied and modified by the courts of this country up to the time it became a rule of decision in this commonwealth.'

'Section 10703, Revised Codes 1921, is as follows: 'In this state there is no common law in any case where the law is declared by the Code or the statute; but where not so declared, if the same is applicable and of a general nature, and not in conflict with the Code or other statutes, the common law shall be the law and rule of decision.'

'Sections 10704 and 10703, above, were enacted as sections 3454 and 3452, respectively, of the Code of Civil Procedure of 1895, and have been in force at all times since. Under identical statutory provisions the Supreme Court of California, in Quist v. Sandman, 154 Cal. 748, 99 P. 204; Michaelson v. Fish, 1 Cal.App. 116, 81 P. 661; Lux v. Haggin, 69 Cal. 255, 384, 4 P. 919, 10 P. 674, and Sharon v. Sharon, 75 Cal. 1, 13, 16 P. 345, has held that the statutes are but continuations of the basic common law, and that when the statute is either silent or ambiguous, in order to determine rights under it an examination of both the common law and the statute is necessary.

'Our Code further recognizes the continuance of the common law and that the codification does not embrace the whole body of the law in Section 10545, Revised Codes 1921, where it is...