Clark v. Alloway

• Decision Date: 14 June 1946
• Docket Number: 7247
• Parties: CLARK v. ALLOWAY et al
• Court: Idaho Supreme Court

170 P.2d 425

67 Idaho 32

CLARK v. ALLOWAY et al

No. 7247

Supreme Court of Idaho

June 14, 1946

Appeal from District Court, Third Judicial District, Ada County Charles F. Koelsch, Judge.

Affirmed.

E. G Elliott, of Boise, for appellant.

A city ordinance in conflict with the state law is unconstitutional and void. Article 12, Section 2, Idaho Constitution; In re Ridenbaugh, 5 Idaho 371, 49 P. 12; Mix v. Board of County Commissioners, 18 Idaho 695, 112 P. 215, 32 L.R.A.,N.S., 534; In re Snyder, 10 Idaho 682, 79 P. 819, 68 L.R.A. 708; State v. Frederic, 28 Idaho 709, 155 P. 977; State v. Bird, 29 Idaho 47, 156 P. 1140.

An unconstitutional and void act, or ordinance, is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. Dumas v. Bryan, 35 Idaho 557, 562, 207 P. 720; State v. Malcom, 39 Idaho 185, 226 P. 1083; Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178.

The fact that the plaintiff was discharged and the cause against her dismissed by the Police Magistrate on motion of the City Attorney established a want of probable cause and proved and established a prima facie case for her on malicious prosecution. Nettleton v. Cook, 30 Idaho 82, 87, 163 P. 300, L.R.A.1917D, 1194; Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 125 P.2d 681, 688; Martin v. Corscadden, 34 Mont. 308, 86 P. 33; Noblett v. Bartsch, 31 Wash. 24, 71 P. 551, 96 Am.St.Rep. 886.

It is error, in an action for malicious prosecution, to permit defendant to testify as to his personal feeling of no malice towards plaintiff. Such testimony is a conclusion of law and inadmissible. Ross v. Kerr, 30 Idaho 492, 167 P. 654; Nichols Applied Evidence, Vol. 3, page 2963.

While the rule is well settled that the plaintiff has the burden of establishing want of probable cause, slight proof thereof is all the law requires to make a prima facie case. Douglas v. Kenney, 40 Idaho 412, 233 P. 874; Brown v. Selfridge, 224 U.S. 189, 32 S.Ct. 444, 56 L.Ed. 727, 729.

Maurice H. Greene, Fred M. Taylor, and C. Stanley Skiles, all of Boise, for respondents.

The defendant in a malicious prosecution case may testify as to his motive in causing the plaintiff's arrest. Ross v. Kerr, 30 Idaho 492, 167 P. 654; Schubkegel v. Gordino, 56 Cal.App.2d 667, 133 P.2d 475; Richter v. Neilson, 11 Cal.App.2d 503, 54 P.2d 54.

If the criminal complaint is dismissed voluntarily, the fact of dismissal does not raise a presumption of a lack of probable cause in making the arrest. Fowler v. Ruebelmann, 65 Idaho 231, 142 P.2d 594.

As a defense to the action for malicious prosecution, defendants did not have to prove Mrs. Clark guilty of the offense charged but only that they had probable cause. Luther v. First State Bank, 64 Idaho 416, 133 P.2d 717; Moore v. Durrer, 127 Cal.App. 759, 16 P.2d 676.

Statements made to the officers by third persons are admissible on the issue of probable cause. Carpenter v. Sibley, 15 Cal.App. 589, 119 P. 391; Selvester v. Kennedy, 137 Cal.App. 250, 30 P.2d 63; 18 R.C.L. 36, Sec. 21; 38 C.J. 405.

The provisions of the Special Charter of Boise City were continued in force under the constitution of the State of Idaho. Article XXI, Section 2, Idaho Constitution; Hoffer v. City of Lewiston, 59 Idaho 538, 85 P.2d 238; Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234.

The Mayor and Council of Boise City have been granted the full power to define what shall constitute vagrancy and the punishment therefor.

As to definition: Article XIII, Section 2, Idaho Constitution, Section 11 of an act to incorporate Boise City, approved January 11, 1866, and as amended by H.B. 64, 1901 Sess.Laws; Section 4-1501, Boise City Code of 1936.

As to punishment: Sec. 21, Act of January 11, 1866, H.B. 64, 1901 Sess.Laws; Chapter 215, 1939 Sess.Laws.

An arrest without a warrant for a misdemeanor committed in the arresting officer's presence is lawful. I.C.A. § 19-603.

Budge, Justice. Holden and Miller, JJ., and Buckner, D. J., concur. Ailshie, C. J., dissenting.

OPINION

Budge, Justice.

Appellant's complaint, filed in the District Court for Ada County, set forth two causes of action. The first seeks damages in the sum of $ 15,000 actual and $ 5,000 punitive damages, alleged to have been sustained by reason of the acts of respondents in maliciously and unlawfully procuring her arrest, September 3, 1944, on a charge of vagrancy. The second cause of action seeks to recover damages in the same amounts from respondents for having falsely imprisoned appellant after her arrest on said charge.

Respondents, in their answer, deny all the allegations of the complaint, except they admit they are police officers; that respondents Alloway and Sherman arrested plaintiff for the violation of sec. 4-1501, Boise City Code, 1936, of begging as a business; that a criminal complaint was filed against her on that charge by the Boise City Chief of Police; that she was held in custody upon said charge, which was subsequently dismissed by the police judge on motion of the city attorney.

The cause was tried to the court and jury. At the close of all the evidence appellant moved to dismiss the complaint as against defendant Gunderson, which motion was granted. The jury returned a verdict in favor of the remaining defendants on both causes of action. Judgment was entered on the verdict, hence this appeal.

The testimony is voluminous, consisting of 434 pages. It might be here observed that there is a direct conflict upon every material issue of fact.

The primary contention of appellant upon which she bases her right of recovery is that at the time of her arrest she was, and had been for a considerable period of time, engaged as an evangelist pastor and missionary for various religious and charitable organizations; that her solicitation of funds was for these organizations; that she was not engaged in begging as a business; that her arrest and imprisonment on the charge of begging as a business was malicious and without probable cause.

On the other hand, respondents have bottomed their defense upon the ground that the evidence clearly establishes the fact that appellant was not engaged in religious or charitable work in soliciting funds as claimed by her, but was engaged in begging as a business in violation of sec. 4-1501, Boise City Code; that probable cause existed for her arrest at the time she was taken into custody, absence of malice and, as to the second cause of action, no wrongful or unlawful detention.

In limine, actions for malicious prosecution are not favored in law, hence have been hedged about by limitations more stringent than in the case of almost any other act causing damage to another. In order to recover in such an action the plaintiff must allege and prove (1) that there was a prosecution; (2) that it terminated in favor of plaintiff; (3) that the defendants were prosecutors; (4) that they were actuated by malice; (5) that there was want of probable cause; and (6) the amount of damages that plaintiff has sustained. Russell v. Chamberlain, 12 Idaho 299, 85 P. 926, 9 Ann.Cas. 1173, and cases therein cited; Luther v. First Bank of Troy, 64 Idaho 416, at page 421, 133 P.2d 717.

"As it is essential that the plaintiff in his complaint affirmatively allege all the facts necessary to support his action, it follows that he must assume the burden of proof in respect to each of these allegations, and by his evidence establish to the satisfaction of the court and jury that he has been prosecuted by the defendant, that the prosecution has terminated in his favor, that it was malicious, and without probable cause; and if by his evidence he does not make out a prima facie case upon all of these issues, he must fail." Ross v. Hixon, 46 Kan. 550, 26 P. 955, 12 L.R.A. 760, 26 Am.St.Rep. 123, Note at page 153.

"To sustain an action for malicious prosecution, there must be a concurrence of malice and want of probable cause. Neither, however clearly established, will support an action in the absence of the other." Ross v. Hixon, supra, 26 Am.St.Rep., Note, page 149.

Numerous definitions of probable cause have been given. A definition sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish. It may be nearly accurate to say that probable cause consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation. Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223, 10 Am.St.Rep. 322.

"Probable cause as is applicable to this action is (the existence of such facts or circumstances as would excite the belief of a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.)" Luther v. First Bank of Troy, 64 Idaho 416, 420, 133 P.2d 717, 719.

The rule seems to be well established that where the evidence bearing upon the question of probable cause is conflicting, it is the province of the jury to determine which of the witnesses speak the truth. Ross v. Hixon, supra, 126 Am.St.Rep., Note, page 141.

The jury by its general verdict found probable cause for the arrest of plaintiff, and absence of malice. The evidence is sufficient, though contradictory, to support the verdict.

"False imprisonment is the unlawful restraint by one person of the physical liberty of another," or more exactly, "the direct restraint by one person of the physical liberty of another without adequate legal justification" or without probable cause. (11 R.C.L. 791.) The jury found upon conflicting evidence there was...