Hofschulte v. Doe
| Decision Date | 01 February 1897 |
| Citation | 78 F. 436 |
| Court | U.S. District Court — Northern District of California |
| Parties | HOFSCHULTE v. DOE et al. |
Geo. D Shadburne, for plaintiff.
Denson & De Haven, for defendants.
This is an action for false imprisonment. The complaint declares on the official bond of the defendant Fred H. Doe as marshal of the town of Ferndale, in Humboldt county, Cal., and against the other defendants Charles A. Doe and John W. Kemp as sureties, to recover damages for a breach of the conditions of the bond. The complaint contains three counts. They all allege that at the times mentioned in the complaint the plaintiff was and is an alien, and a subject of the king of Prussia, and that the defendants were and are citizens of the state of California. The first count charges, in substance that on the 14th day of March, 1895, plaintiff was engaged in the town of Ferndale in the business of soliciting orders for the sale of books as the agent of a New York publisher, under such conditions that books so ordered were thereafter shipped to the persons ordering the same; that this business was wholly and exclusively commerce between the state of New York and the state of California; that plaintiff was arrested by the defendant Fred H. Doe, as marshal of the town of Ferndale, and forcibly, violently, and against plaintiff's will dragged, carried, and taken before the recorder's court of the town of Ferndale, and there charged by the defendant with the crime of misdemeanor committed by the plaintiff in having violated an ordinance of the town of Ferndale requiring the payment of a license for the privilege of pursuing plaintiff's business; that the arrest and prosecution of plaintiff by the defendant Fred H. Doe were unlawful oppressive, and without authority, and by reason of defendant's wrongful conduct plaintiff was damaged in the sum of $6,000. The second count repeats the charge contained in the first count, and alleges further that on the 15th day of March, 1895, to which day the hearing of the matter was continued by the recorder, the plaintiff was again arrested by the defendant, and again dragged, carried, and taken by the marshal before the recorder's court to answer concerning the charge; that plaintiff was convicted by the court of the crime of misdemeanor, in having violated an ordinance by carrying on the business of soliciting orders for the sale of books without a license, and was sentenced to pay a fine of $20, and, in default of payment, to be imprisoned in the town jail of the town of Ferndale until the fine was satisfied, in the proportion of one day's imprisonment for every dollar of said fine not satisfied by imprisonment; that plaintiff refused to pay the fine, and thereupon he was committed to the custody of the defendant, who forcibly seized and imprisoned him for seven hours, and, in order to prevent further imprisonment, plaintiff paid the remaining portion of the fine not satisfied by the imprisonment, to wit, the sum of $20; that the arrest and imprisonment of plaintiff by the defendant were unlawful, oppressive, and without authority; and by reason of defendant's wrongful conduct plaintiff was damaged in the sum of $6,000. The third count charges that on the 18th day of March, 1895, while plaintiff was engaged, in the town of Ferndale, in the business of soliciting orders for the sale of books in the manner described, he was arrested by J. B. Howard, acting as deputy marshal, and as deputy of the defendant Fred H. Doe, on a charge of having again violated the ordinance of the town of Ferndale requiring the payment of a license for the privilege of pursuing plaintiff's business; that he was taken before the recorder's court, and afterwards tried and convicted, and sentenced to pay a fine of $40, and, in default of payment, to be imprisoned until the fine was satisfied, in the proportion of one day's imprisonment for every dollar of the fine, or until lawful payment should be made of the proportion of the fine not satisfied by imprisonment; that plaintiff refused to pay the fine, and thereupon he was committed to the custody of the defendant, and imprisoned for 24 hours, and, in order to prevent further imprisonment, he paid the remaining portion of the fine, amounting to $39; that the arrest and imprisonment of plaintiff by the defendant were unlawful, oppressive, and without authority; and by reason of defendant's conduct plaintiff was damaged in the sum of $6,000.
The answer of the defendants sets forth in detail all the proceedings connected with the arrest, prosecution, conviction, and imprisonment of the plaintiff at the times mentioned in the complaint. From these proceedings it appears that, with the exception of the first arrest of the plaintiff by the defendant Doe, mentioned in the first count of the complaint, the defendant and his deputy acted under and by virtue of legal process issued out of the recorder's court of the town of Ferndale. It appears, further, that the prosecution was based upon the following ordinance:
'Every person, firm or corporation, who solicits orders for and sells to the inhabitants of the town of Ferndale, at retail, any books, goods, wares or merchandise (to be delivered by those who may purchase from said person, firm or corporation, at a time subsequent to the taking of said order) shall be termed, and is hereby declared to be, a transient dealer, and shall pay a license of fifteen dollars per quarter.'
It further appears from the answer that under and by virtue of the ordinances of the town of Ferndale any person transacting business in said town, for which a license is required under any ordinance of said town, without first obtaining the same, is guilty of a misdemeanor, and upon conviction thereof may be imprisoned in the jail of such town.
To this answer a general demurrer has been interposed on the ground that it does not state facts sufficient to constitute a defense to plaintiff's complaint, and the question is presented whether the ordinances of the town of Ferndale, and the warrants under which the defendant and his deputy acted, constitute, in this action, a justification for the arrest and imprisonment of the plaintiff. It is conceded that the ordinance in question is invalid, by reason of being in contravention of the provisions of the constitution of the United States, which confers upon congress the power to regulate commerce among the several states. Robbins v. Taxing Dist., 120 U.S. 489, 7 Sup.Ct. 592; Asher v. Texas, 128 U.S. 129, 9 Sup.Ct. 1; Stoutenburgh v. Hennick, 129 U.S. 141, 9 Sup.Ct. 256. But it is contended on behalf of the defendants that the recorder's court of the town of Ferndale had the general jurisdiction to entertain the complaint in the proceedings against the plaintiff; that it had the authority to determine, in the first instance, whether the complaint was sufficient to justify the issuance of a warrant, and, after the arrest, to determine every disputed question of law and fact involved in the case, and its judgment, no matter how erroneous it may have been, is not subject to collateral attack; that the warrants under which the marshal and his deputy acted in the arrest and imprisonment of the plaintiff, as set forth in the answer, were fair on their face, and, under the circumstances, constitute a sufficient defense to this action. The constitution of the state of California provides, in article 11, Sec. 6, that:
'Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population, of cities and towns; * * * and cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, shall be subject to and controlled by general laws.'
In accordance with this requirement, the legislature of the state, by the act approved March 13, 1883 (St. 1883, p. 93), provided a general law for the organization, incorporation, and government of municipal corporations, dividing such corporations into six classes, according to population. The sixth class embraces cities and towns having a population of not exceeding 3,000. St. 1883, pp. 24-266. As no municipal corporation designated as a 'town' appears in any other class, the town of Ferndale must belong to this class. Section 882 of the act of 1883 (St. 1883, p. 278) relates to cities and towns of the sixth class, and provides:
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...v. Hohnbach, 14 Wall. 613, 616, 20 L.Ed. 745. See Matthews v. Densmore, 109 U.S. 216, 219, 3 S.Ct. 126, 27 L.Ed. 912; Hofschulte v. Doe, C.C.N.D.Cal., 78 F. 436, 442; Snyder v. Hausheer, 8 Cir., 268 F. 776, 780; Bohri v. Barnett, 7 Cir., 144 F. 389. 13 18 U.S.C.A. § 245; D.C.Code 1940, § 33......
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...shall be exercised are generally as much questions for his determination as any other question involved in the case. In Hofschulte v. Doe (C. C.) 78 F. 436, Judge Morrow, sitting in the District Court, cited Allec v. Reece, supra, and adhered to the rule that when a court, though of inferio......