City of Topeka v. Boutwell

• Decision Date: 09 February 1894
• Citation: 53 Kan. 20,35 P. 819
• Parties: CITY OF TOPEKA et al. v. BOUTWELL.
• Court: Kansas Supreme Court

35 P. 819

53 Kan. 20

CITY OF TOPEKA et al. v. BOUTWELL.

Supreme Court of Kansas

February 9, 1894

Syllabus

1. Where pertinent questions of fact are stated in writing and handed to the court by a party at the conclusion of the testimony, to be submitted to the jury for their findings thereon, it is error for the trial court to refuse to submit them.

2. The city council of the city of Topeka has the power by ordinance to require the keepers of boarding houses, restaurants, and hotels to furnish the street commissioner the names of persons liable to poll tax boarding or lodging in their houses, and to impose a fine for refusal to do so.

3. A judgment duly rendered by the police court of a city cannot be held void because of a defense of which the prisoner did not avail himself.

4. Ordinance No. 91 of the city of Topeka, approved May 12 1870, permitting prisoners committed to the city prison for the violation of a by–law or ordinance of the city necessary for the preservation of order and the welfare of society, to be employed by the city marshal at labor, either on the streets or public work of the city, or in a public or private place, being credited $1 a day on the judgment for each day’s work performed, is not in conflict with section 6 of the bill of rights of the constitution of the state, or article 13 of the amendments to the constitution of the United States, prohibiting slavery and involuntary servitude. Allen, J., dissenting.

5. The marshal and policemen of a city, and any persons aiding and abetting them, are liable in damages for unnecessary cruelties and indignities inflicted by them on prisoners in their charge. [Copyrighted Material Omitted]

Error from district court, Shawnee county; John Guthrie, Judge.

Action by D. W. Boutwell against the city of Topeka and others for false imprisonment. Plaintiff had judgment, and defendants bring error. Reversed.

The other facts fully appear in the following statement by ALLEN J.:

D. W. Boutwell brought suit in the district court of Shawnee county against the city of Topeka, D. C. Metsker, its mayor, John F. Carter, Joseph Reed, Pat Wilson, J. W. Gardiner, Henry Bernard, John Ewing, and Ben Williams, charging them with assault and battery, false imprisonment, and other wrongs and indignities connected with such imprisonment, for which he demanded damages. A demurrer on the part of the city of Topeka to the petition was sustained. Demurrers of the other defendants were overruled. Metsker, by his answer, denied generally the allegations of the petition. Carter alleged that he was the duly appointed and acting marshal of the city of Topeka; that on the 14th of September, 1887, the plaintiff was tried before one Joseph Reed, police judge of said city, upon a charge of unlawfully refusing to give, upon request, to the street commissioner of said city, the names of certain persons, liable to pay a poll tax, then lodging in a certain boarding house, of which said plaintiff was the keeper; that the plaintiff was found guilty of said charge, and sentenced to pay a fine of $25, and committed to the city prison until such fine should be paid; that the plaintiff was also tried, on the same day, before said police judge, upon a charge of resisting an officer in the discharge of his duty, found guilty, and sentenced to pay a fine of $75, and committed to the city prison for the nonpayment thereof; that it became his duty, as marshal, to confine and safely keep the plaintiff until he should comply with said judgments; that, the plaintiff being an able–bodied man, the defendant as marshal did, by virtue of Ordinance No. 91 of said city, command the plaintiff to work at breaking rock on the rock pile, which the plaintiff refused to do; that in his treatment of the plaintiff he used no more force than was necessary to execute the judgment of the court, and perform his duties as the custodian of such prisoner. The defendant Wilson alleges that he was a policeman of the city; that a warrant was duly issued by the police judge and placed in his hands, commanding him to arrest the plaintiff on a charge of unlawfully refusing to furnish the street commissioner the names of persons, liable to poll tax, lodging in a boarding house of which he was keeper; that he proceeded to serve such warrant; that the plaintiff resisted arrest with deadly weapons; that he used no more force in making the arrest than was reasonably necessary. All of the other defendants justified under the processes referred to in the answers of Carter and Wilson. Ordinance No. 426, providing for the collection of poll taxes, contains this section: “Sec. 4. It is hereby made the duty of all proprietors, or keepers of all boarding houses, restaurants, or hotels in the city of Topeka, to furnish to the street commissioner, when required so to do, the names of all persons boarding or lodging in their houses, and any such person, who shall neglect, or refuse so to do, shall be deemed guilty of a misdemeanor, and shall upon conviction thereof in the police court of said city, be fined in the sum of not less than $5.00 nor more than $25.00 for each offense.” Ordinance No. 36, relating to misdemeanors, contains the following section: “Sec. 14. That any person conducting himself in a riotous or disorderly manner, or who shall resist or oppose any officer in the discharge of his duty, or who shall openly use profane or indecent language, or indecently expose his or her person, or commit any nuisance upon any street, sidewalk, alley, or other public place of the city, shall be fined in a sum not less than $1.00 nor more than $100.00.” Ordinance No. 91 provides that persons committed to the city prison may be compelled by the marshal to work at hard labor, and, in case of refusal to so work, that they shall be kept in close confinement, and fed on bread and water only, until they consent to work. On the issues so joined the case was tried. After the testimony was concluded, special questions for the jury to answer were filed and handed up to the court by the defendants’ counsel, with the instructions asked by the defendants, but no announcement of the fact was made, and plaintiff’s counsel did not know, at that time, that such special questions were presented. After the court had charged the jury, and after the opening argument for the plaintiff and the first argument for the defendants had been made, the court’s attention was called to the special questions by the defendants’ counsel just as the court adjourned for dinner. Thereupon the court handed the questions to counsel for plaintiff, which was the first knowledge they had of their existence, who, upon the opening of the court at 2 o’clock, objected to the presentation of said special questions, and also asked an opportunity to be heard by the court respecting the legality, fitness, and relevancy to the issue of said proposed questions, to which counsel for the defendants objected. Thereupon the court refused to submit the special questions to the jury. The jury were charged that section 4, under which the original complaint was filed in the police court, was void, and plaintiff’s arrest unlawful; that, such being the case, the plaintiff could not be guilty of any offense in resisting said officer in making said arrest; that the judgment of the police court was illegal, and the subsequent imprisonment of the plaintiff was unlawful and false. It was shown on the trial that on the 13th day of September, 1887, a complaint was filed by Wilson, charging the defendant with a violation of section 4 of ordinance No. 426, above quoted. A warrant was issued on such complaint, and placed in the hands of Wilson, who was a policeman, to serve. The plaintiff resisted arrest. Wilson called others to his assistance, overpowered the plaintiff, put him in a wagon, and took him to the city prison, where he was kept until the following day. On the 14th he was taken before the police judge for trial. He refused to plead. Thereupon a plea of not guilty was entered for him, witnesses were examined, he was found guilty and fined $25, and ordered to stand committed until such fine should be paid. The same day another complaint was filed, under section 14 of Ordinance No. 36, above mentioned, charging the plaintiff with resisting an officer in serving a warrant on plaintiff. He was arraigned on this charge also, and refused to plead. A plea of not guilty was entered for him. He was tried, convicted, and sentenced to pay a fine of $75 for this offense, and committed to the city prison. The marshal kept him in custody under these commitments until the 17th day of September, when he was released from custody by giving a bond in a habeas corpus proceeding in the district court of Shawnee county, and afterwards, on the 8th day of November, 1887, was discharged under such proceedings by said court. The jury rendered a verdict in favor of the plaintiff against all of the defendants for $2,100. The defendants bring the case here for review.

W. A. S. Bird and Douthitt, Jones & Mason, for plaintiffs in error.

G. C. Clemens and D. Overmyer, for defendant in error.

OPINION

ALLEN, J., (after stating the facts.)

Many questions are discussed by counsel. We shall consider only such as are necessary for the disposal of the case. The defendants stated, in writing, pertinent and material questions of fact to be submitted to the jury. These were filed with the clerk and handed to the court, together with special instructions asked, at the conclusion of the testimony. This was certainly in good time. It appears that the attention of plaintiff’s counsel was not called to the fact that special questions were asked until after the opening argument by the plaintiff and one argument on behalf of the defendants, when the...