Joyce v. Parkhurst

• Decision Date: 29 November 1889
• Citation: 150 Mass. 243,22 N.E. 899
• Parties: JOYCE v. PARKHURST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 243

22 N.E. 899

JOYCE v. PARKHURST.

Supreme Judicial Court of Massachusetts, Worcester.

November 29, 1889

COUNSEL

Edward Avery and A.E. Avery, for plaintiff.

F.P Goulding, for defendant.

OPINION

MORTON C.J.

The plaintiff's objection that the defendant was not duly appointed a police officer cannot be sustained. It appeared by the records of the board of aldermen of Worcester that on January 12, 1885, the mayor appointed, and the aldermen approved, the defendant as a special policeman. The charter of Worcester provides that "the mayor and aldermen shall have full and exclusive power to appoint a constable or constables, and a city marshal and assistants, with the powers and duties of constables, and all other police officers." St.1866, c. 199, § 13. An ordinance of the city provides that "the mayor and aldermen may appoint such number of special police for day or night service as they may deem necessary." City Ordinances, c. 34, § 11. This ordinance does not limit the general powers of the mayor and aldermen to appoint police officers, conferred by the charter, and the appointment of the defendant, without any limitation as to time or place, gave him all the powers of a police officer throughout the city. Com v. Hastings, 9 Metc. 259. Among these powers was the power to arrest without warrant any person found in a state of intoxication in a public place, or found in any place in a state of intoxication, committing a breach of the peace or disturbing others by noise. Pub.St. c. 207, § 25.

In the case at bar the jury have found that the plaintiff, when arrested, was in a state of intoxication, committing a breach of the peace or disturbing others by noise. His arrest therefore, was legal. But he contends that the failure of the officer to make a complaint against him for drunkenness on the next morning makes the officer liable in this action. The object of the provision requiring the officer to make a complaint is the protection of those arrested without warrant, by insuring that they shall be promptly brought before a court; and it has been repeatedly held that a party thus arrested may waive this provision, and that if he requests his discharge, with the understanding that he is to release any damages to which he might otherwise be entitled by reason of the failure of the officer to make a complaint, he cannot afterwards hold the officer responsible. Caffrey v Drugan, 144 Mass. 294, 11 N.E. 96,...