Gambill v. Schmuck

• Citation: 131 Ala. 321,31 So. 604
• Parties: GAMBILL v. SCHMUCK. [1]
• Decision Date: 07 February 1902
• Court: Supreme Court of Alabama

31 So. 604

131 Ala. 321

GAMBILL v. SCHMUCK. ^[1]

Supreme Court of Alabama

February 7, 1902

Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by Frank Schmuck against A. A. Gambill. Judgment for plaintiff. Defendant appeals. Affirmed.

The defendant pleaded the general issue and the following special pleas: "(3) Comes the defendant, and for further plea in this behalf says the plaintiff ought not to have and recover any sum in this cause, because he says that he was the license collector of the city of Birmingham, Alabama, at the time alleged in the complaint, and was vested with the power as such officer of arresting persons who violated the license laws of the city of Birmingham, and defendant alleges that he arrested plaintiff for violating the laws of the city of Birmingham, which prohibited engaging in or carrying on business without license; that he had probable cause for believing and did believe said plaintiff was guilty of said offense. Wherefore he says plaintiff ought not to have and recover," etc. "(4) Comes the defendant, and for further plea in this behalf says that plaintiff ought not to have and recover any sum in this cause, because, as defendant avers, defendant at the time alleged in the complaint was license tax collector of the city of Birmingham, and it was defendant's duty, by virtue of his office, to arrest or cause the arrest of persons whom he had reason to believe were guilty of violating the laws of said city; and defendant avers that he had probable cause for believing and did believe that plaintiff was guilty of retailing malt liquors contrary to the ordinances and resolution of said city, and having such reason and probable cause for believing that plaintiff was guilty of such offense, defendant caused the arrest of said plaintiff, as he alleges it was his duty and right to do. Wherefore," etc. "(5) Comes the defendant, and for further plea in this behalf says and avers that plaintiff ought not to have and recover any sum in this cause, because he says and avers defendant was license and policeman tax collector of the city of Birmingham at the time of the alleged arrest, and it was defendant's duty, by virtue of his said office, and he had the right as a citizen of said city, to cause the arrest of persons whom he had reason to believe had violated any law of said city. And defendant avers that the following was a law of said city at the time of the alleged arrest (City Code, § 100): 'Sec 100. Arrest Without Warrant. When and By Whom Made. It is the duty of the marshal and every policeman to arrest, without warrant, all persons found violating any ordinance of the city, or whom he has reason to believe has violated any city ordinance, all persons found disturbing the peace by disorderly conduct, all persons found drunk on the public streets or in any public place in the city, and all persons found under suspicious circumstances, who fail to give satisfactory account of themselves.' And defendant further avers that he was then and there a citizen of the city of Birmingham. And defendant further avers that the following license ordinance was then and there in existence in said city. [ Here follow the license ordinances of Birmingham which plaintiff was charged with having violated.] And defendant avers that each of said ordinances and resolutions were duly adopted by the board of mayor and aldermen of said city under and by virtue of the powers in them vested by the charter of said city existing at the time of their adoption respectively. And the defendant further avers that he had probable cause for believing and did believe that plaintiff was guilty of violating the ordinance and resolutions aforesaid, in this: That plaintiff, as defendant had reason and probable cause for believing, was violating the laws aforesaid of said city in selling malt liquors at a place in said city without license to so sell at said place, to wit, near the show grounds near Avenue A and Twenty-Sixth street, in said city, where he had no right to so engage in said city; and that thereupon W. E. Murphy, who was then and there a policeman of said city, was requested by defendant to arrest said plaintiff for so doing said business without having license so to do at said place, and said Murphy did then and there arrest plaintiff, as he alleges it was said Murphy's duty to do, and that defendant did not make said alleged or wrong arrest of plaintiff. Wherefore," etc. "(6) For further plea in this behalf the defendant adopts so much of plea No. 5 and makes the same a part of this plea as precedes the words, 'at the time of their adoption, respectively,' in said plea and adds thereto the following words: 'And the defendant avers that the said plaintiff was engaged in the business of selling malt liquors in said city at a place where he had no license to sell the same, and that said defendant was present when said plaintiff was so violating the said laws of said city; and defendant avers that he thereupon made a charge against said plaintiff for said offense to W. E. Murphy, who was then and there a policeman of said city, and requested said Murphy to arrest said plaintiff for said offense; that there upon said Murphy, as a policeman aforesaid, did arrest said plaintiff, as it was his duty and right to do.' Wherefore," etc. The plaintiff demurred to the third plea upon the following grounds: (1) Said plea fails to answer the complaint, in that it fails to deny the charge of maliciously arresting plaintiff. (2) The act for which the plaintiff was arrested is a misdemeanor, and the plea fails to show that the crime charged was committed in the presence of the defendant. (3) Said plea fails to set forth any offense committed by plaintiff. To the fourth plea, the plaintiff demurred upon the following grounds: (1) There is no law authorizing a license tax collector to make arrests for violating the laws of Birmingham without warrant or writ of arrest. (2) The plea does not aver that plaintiff had committed the offense for which the arrest was alleged to have been made in the presence of the defendant. (3) The plea does not set forth the facts constituting the probable cause for believing that the plaintiff had committed the offense charged for which the alleged arrest was made. To the fifth plea the plaintiff demurred upon the following grounds: (1) "The ordinance set forth in the said plea as authority for arresting plaintiff with or without a warrant is void, in that there is no authority given by the charter granted to the mayor and aldermen of Birmingham to enact such ordinance. (2) The said ordinance is void in that it is unreasonable in authorizing the seizure of the person of the citizen for a misdemeanor or a violation of a municipal ordinance not committed in the presence of the officer or the defendant causing the arrest. (3) The plea is defective in this: That it does not show that the offense of violating the alleged ordinance was committed in the presence of the defendant. (4) The ordinance set forth in the plea as authority for causing the arrest upon the ground that defendant had probable cause for believing plaintiff had violated a municipal ordinance is without charter authority. (5) The plea shows that the arrest was made when no violation of the laws of the state or of the city of Birmingham was committed in the presence of the defendant. (6) The plea does not set forth the facts constituting probable cause for believing." There were no demurrers interposed to the sixth plea. The demurrers to the third, fourth, and fifth pleas were sustained, and the cause was tried upon issue joined on the pleas of the general issue and the sixth plea.

The evidence showed that on November 6, 1899, defendant arrested ...