Burroughs v. Eastman

• Decision Date: 10 July 1894
• Citation: 101 Mich. 419,59 N.W. 817
• Court: Michigan Supreme Court
• Parties: BURROUGHS v. EASTMAN.

59 N.W. 817

101 Mich. 419

BURROUGHS v. EASTMAN.

Supreme Court of Michigan

July 10, 1894

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by C. Sumner Burroughs against William H. Eastman and another for damages for false imprisonment. Judgment for plaintiff against Eastman, who brings error. Reversed.

Edwin F. Uhl, for appellant.

James E. McBride, for appellee.

MONTGOMERY J.

This is an action for false imprisonment. The plaintiff was, by defendant's directions, arrested while engaged in giving a performance at a theater in the city of Grand Rapids on Sunday evening. There existed an ordinance of the city of Grand Rapids relative to shows which prohibited a person or company giving theatrical exhibitions on the first day of the week. The charter of the city provides that police officers, in addition to the power and authority possessed by them at common law and under the laws of the state in matters of a criminal nature shall have the power to arrest without process all persons who shall, in the presence of the arresting officer, be engaged in the violation of the ordinances of the common council of the city, and that the police officer may detain such persons in custody until complaint shall be made and process issued for their arrest and trial. It will be seen therefore, that, so far as the legislative power can go, it has been exercised to authorize an arrest without warrant for an offense against the ordinance of the city which is committed in the presence of the officer. It is insisted however, that the act which attempts to clothe the officer with the power is unconstitutional. This court has repeatedly held that, in the absence of any statutory power or authority, an officer cannot arrest except on suspicion of felony, or in case of an actual breach of peace committed in the presence of the arresting officer. See Way's Case, 41 Mich. 304, 1 N.W. 1021; Davis v. Burgess, 54 Mich. 514, 20 N.W. 540; Quinn v. Heisel, 40 Mich. 576; People v. Johnson, 86 Mich. 176, 48 N.W. 870. But whether the legislature may extend the right to the officer to arrest for other misdemeanors, not amounting to a breach of the peace, has not been directly passed upon, unless it be in the case of Robison v. Miner. 68 Mich. 549, 37 N.W. 21. In People v. Johnson, 86 Mich., at page 179, 48 N.W. 870, the subject is referred to, but, as the record was not in shape to present the question, it was left undecided. In Quinn v. Heisel, 40 Mich. 578, Mr. Justice Marston said: "We are not at present prepared to say that an ordinance of the city of Grand Rapids could authorize arrests without process in cases not justified by common-law principles." But this statement in this case was mere dictum, and, if the quaere suggested had been answered in the negative, it would not necessarily follow that the legislature of the state might not confer a power which the common council of the city, under the charter then in force, could not have conferred. In Robison v. Miner, it must be conceded, language is employed which might be construed as prohibiting the power of arrest. The statute under consideration was Act No. 313 of the Laws of 1887, which contained the peculiar provision that "any person found in the act of violating any of the provisions of this section shall be deemed guilty of a breach of the peace and punished accordingly; and the arrest therefor may be without process, and this punishment shall be taken to be in excess of all other manner of punishment in this act provided for violations of the provisions of this section. All officers authorized to make arrests for a breach of the peace shall have like power to make arrests under the provisions of this section as in other cases of a breach of the peace." These provisions are peculiar and incongruous. It seemed to have been an attempt on the part of the legislature to confer the power of arrest by a process of first declaring that to be a breach of the peace which is not such in fact, and by further providing that a party might be punished for such breach of the peace in addition to and beyond the punishment provided by the same statute. The conclusion that these provisions could not be maintained, in view of the constitutional provisions that no person shall be twice put in jeopardy for the same offense, was undoubtedly correct. As was well said by Mr. Justice Campbell, in rendering the opinion of the court, "This statute is practically, if carried out, a general warrant itself, directing all officers to visit houses and business places without other authority, and make searches and arrests and close up places of business on their own well or ill founded notion that the law has been violated." But, in the course of this opinion, Justice Campbell used language which seems to favor the contention of plaintiff here, as follows: "The constitution prohibits interference with persons or property without due process of law. The proceedings under this statute are all highly penal and treated expressly as criminal proceedings. The constitution expressly prohibits the issue of warrants of search or seizure of persons or property except on a sworn showing, which, it has always been held, must be of facts, on personal knowledge, such as would establish the legal probability of the cause of complaint. If the legislature could evade this by providing for seizures and searches without legal warrant, the provision would be useless."

As to the first provision of the constitution referred to in the discussion, it means no more than that a person shall not be deprived of liberty except by the law of the land. As to the latter provision, namely, section 26 of article 6, which provides that "no warrant to search any place or to seize any person or things shall issue without describing them nor without probable cause supported by oath or affirmation," we are constrained to say that this section is not susceptible of the construction which, by implication, is placed upon it in the opinion of Mr. Justice Campbell. The same provision was considered by the supreme court of Alabama in the case of Williams v. State, 44 Ala., at page 43, and a contention that such provision prohibited an arrest without warrant was concisely disposed of as follows: "The federal and state constitutions both provide that no warrant shall issue to search any place, or to seize any person or thing, without probable cause, supported by oath or affirmation. As a warrant is the process upon which arrests are usually made, and it cannot be issued without oath, the corollary has been drawn that there can be no arrest without a warrant. The popular error on the subject is our excuse for the assertion of the truism that it is the issue of the warrant, without oath or affirmation, which is forbidden, and not the arrest without a warrant." The statute under consideration in that case authorized an arrest by a policeman without a warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened, in his presence. It may further be said that, if the constitutional provision last quoted is to be construed as might be implied from the language employed by Mr. Justice Campbell, it would exclude all arrests without warrant. The right which existed at common law to arrest for offenses committed in the presence of the officer has been too often recognized since the adoption of our constitution to be open to question. Mr. Justice Campbell uses the further language: "So far as arrests are concerned, a similar principle applies. Under our system we have repeatedly decided, in accordance with constitutional principles as construed everywhere, that no arrest can be made without warrant, except in cases of felony, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception in cases of breaches of the peace has only been allowed by reason of the immediate danger to the safety of the community against crimes of violence, and it was confined, even in such cases, to instances where the violence was committed in the presence of the officer." This language embodies a correct statement of the rule of common law, but, if it is sought to extend its application to a case where the legislature has authorized the arrest without warrant for offenses other than breaches of the peace committed in the view of the arresting officer, we do not find the contention supported by authority. In Bishop's Criminal Procedure (section 184) it is said: "The right of arrest by officers of the peace is more or less enlarged by statutory regulations in the several states, as well as, of late, in England; or, if not enlarged, defined. A statute enlarging the right,-that is, in restraint of personal liberty,-is to be strictly construed. But statutes of this sort are generally held to be constitutional." In Roberts v. State, 14 Mo. 138, the power of the municipality to provide by ordinance for the arrest of vagrants without warrant was sustained. The same ruling was made in the case of Bryan v. Bates, 15 Ill. 87, and Main v. McCarty, Id. 441. In Massachusetts the legislature has from time to time provided by statute for the arrest of persons guilty of a particular offense, including the offense of selling liquor contrary to law, and the offense of drunkenness, and the power of arrest without warrant for the commission of the offense has been repeatedly sustained. See Jones v. Root, 6 Gray, 435; Mason v. Lothrop, 7 Gray, 354; Com. v. Cheney, 141 Mass. 102, 6 N.E. 724. See, also, Davis v. American Soc., 75 N.Y. 362. In White v. Kent, 11 Ohio St. 550, a statutory provision which conferred the right upon police officers to arrest without process for violations of the city charter not amounting to...