Monson v. Boyd

• Decision Date: 21 December 1959
• Docket Number: No. 8733,8733
• Citation: 81 Idaho 575,348 P.2d 93
• Parties: Dale L. MONSON, Plaintiff-Appellant, v. Alvin E. BOYD and F. G. Boor, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 93

348 P.2d 93

81 Idaho 575

Dale L. MONSON, Plaintiff-Appellant, v. Alvin E. BOYD and F. G. Boor, Defendants-Respondents.

No. 8733.

Supreme Court of Idaho.

Dec. 21, 1959.

Vernon K. Smith, E. G. Elliott, Boise, for appellant.

Moffatt & Thomas, J. F. Martin and C. Ben Martin, Boise, for respondents.

TAYLOR, Justice.

Plaintiff (appellant) filed a complaint in the district court, charging defendants (respondents) with false and malicious arrest and incarceration 'without probable cause and without any right or authority.'

Plaintiff also alleges:

'That during all the times mentioned herein defendants, Alvin E. Boyd and F. G. Boor, were, and now are, duly appointed and acting police officers of the City of Boise, a municipal corporation * * *.'

On defendants' motion the action was dismissed for failure of the plaintiff to file the undertaking required by I.C. § 6-610. That section in pertinent part provides:

'Before any action may be filed against any sheriff, constable, peace officer, state police officer, or any other person charged with the duty of enforcement of the criminal laws of this state, or service of civil process, when such action arises out of, or in the course of the performance of his duty, or in any action upon the bond of any such officer, the proposed plaintiff, as a condition precedent thereto, shall prepare and file with, and at the time of filing the complaint in any such action, a written undertaking with at least two sufficient sureties in an amount to be fixed by the court conditioned upon the diligent prosecution of such action, and in the event judgment in said cause shall be against the plaintiff, for the payment to the defendant of all costs and expenses that may be awarded against such plaintiff including a reasonable attorney's fee to be fixed by the court.'

In Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609, we held that the statute by its terms is mandatory, and that in a case where compliance is required, a failure to comply requires a dismissal of the action.

Plaintiff urges that the statute is not applicable in this case because the defendants, being city police officers, are not 'charged with the duty of enforcement of the criminal laws of this state.' The trial court held that the quoted phrase modifies only 'any other person.' That view is well supported. In re Lockman, 18 Idaho 465, 110 P. 253, 46 L.R.A.,N.S., 759; 82 C.J.S. Statutes § 334, 335.

However, the words 'any other' imply a reference back to the officers enumerated.

'A peace officer is a sheriff of a county, or a constable, marshal, or policeman of a city or town.' I.C. § 19-510.

Boise city policemen are peace officers. As such, they are charged with the duty of enforcement of the criminal laws of the state. The constitution requires the legislature to prescribe their duties. Const. art. 18, § 6. Although not in mandatory language, the legislature has imposed such duty upon all peace officers, including policemen. I.C. § 19-603 provides:

'A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:

'1. For a public offense committed or attempted in his presence.

'2. When a person arrested has committed a felony, although not in his presence.

'3. When a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it.

'4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.

'5. At night, when there is reasonable cause to believe that he has committed a felony.'

Plaintiff contends that the word 'may' in the foregoing statute is permissive only, and does not charge the peace officer with a duty to make an arrest. On the contrary, we think the statute imposes a duty on peace officers. Such construction is supported by I.C. § 18-701:

'Every sheriff, coroner, keeper of a jail, constable, or other peace officer, who wilfully refuses to receive or arrest any person charged with criminal offense, is punishable by fine not exceeding $5,000, and imprisonment in the county jail not exceeding one year.'

Although it may be said that the words 'charged with criminal offense' limit the application of this statute to cases in which a formal charge has been made, nevertheless it imposes a duty upon all peace officers with respect to the enforcement of the criminal laws of the state. I.C. § 18-1309 in part provides:

'* * * every person who gives or offers a bribe to any sheriff, deputy sheriff, policeman, constable, prosecuting attorney, or other officer charged with the enforcement of the laws of this state to receive or secure immunity from arrest, prosecution or punishment for a violation or contemplated violation of the laws of this state or any such officer who receives or offers to receive any such bribe is punishable by imprisonment in the state prison for a term not less than one nor more than fourteen years.'

Construing the phrase 'or other officer charged with the enforcement of the laws of this state', as plaintiff construes the similar phrase in I.C. § 6-610, section 18-1309 recognizes a policeman as an officer charged with the enforcement of the laws of this state. This latter statute was applied to a policeman in State v. Emory, 55 Idaho 649, 46 P.2d 67, 68, where this court held that a policeman belongs to the executive department of the government and as such is 'charged with the detail of carrying the laws into effect and securing their due observance.'

I.C. § 19-509, referring to warrant of arrest, provides:

'The warrant must be directed to and executed by a peace officer.'

In certain cases the warrant may be directed to and may be executed by any policeman in the state. I.C. § 19-512.

Our motor vehicle and traffic code defines and fixes penalties for violations of its many regulations. It specifically vests authority and duty in 'police officers' to enforce its provisions, and defines 'police officer' as:

'Every officer authorized to direct or regulate traffic or to make arrests for violations of traffic regulations.' I.C. § 49-512.

In Lees v. Colgan, 120 Cal. 262, 52 P. 502, 40 L.R.A. 355, the court was concerned with an arrest made by a police captain of San Francisco of one accused of murder in Sacramento. The supreme court of California said:

'Was it the official duty of the petitioner to arrest the murderer? There can be but one answer to this question. Section 817 of the Penal Code of this state declares a police officer of a city to be a peace officer. The arrest in this case was made without a warrant, but such fact in no degree changes the legal complexion of the merits of the litigation. Section 836 of the Penal Code declares that a peace officer may make an arrest * * * [Under circumstances the same as our I.C. § 19-603]. In other words, it is the duty of the peace officer to make arrests under any of the foregoing conditions. It certainly would be his duty to make an arrest where a public offense was committed in his presence. It likewise would surely be his duty to make an arrest where he held a valid warrant ordering the arrest. Yet, under the statute quoted, it is no more his duty to make arrests under such circumstances than it is when a felony has been committed, and he has reasonable cause for believing a certain person to have committed it. Here, of necessity, it must be assumed that petitioner had reasonable cause for making the arrest. It will not be assumed that he made it without good cause, and, if he had good cause for the arrest, it was his duty to make it.' 52 P. at page 504.

In Argetakis v. State, 24 Ariz. 599, 212 P. 372, the supreme court of Arizona was considering the validity of an arrest made by a police officer of the city of Phoenix of one suspected of attempting to cheat by means of a confidence game. The court held that the policeman was a peace officer and as such authorized to make an arrest without warrant upon reasonable cause under a statute similar to our I.C. § 19-603, and said:

'This brings us to a consideration of the authority and duty of a peace officer under the circumstances disclosed by this record. Undoubtedly his first duty is to seek out the person to be arrested wherever he may find him within his jurisdiction * * *.' 212 P. at page 374.

Other authorities also recognize the authority and duty of police officers in the premises. State v. Robinson, 71 Idaho 290, 230 P.2d 693; State ex rel. Mueller v. District Court, 87 Mont. 108, 285 P. 928; People v. Perry, 79 Cal.App.2d Supp. 906, 180 P.2d 465; Jackson v. City of Paris, 33 Tenn.App. 55, 228 S.W.2d 1015; Comstock v. Maryland Cas. Co., Iowa, 179 N.W. 962; Commonwealth v. Martin, 98 Mass. 4; 62 C.J.S. Municipal Corporations § 575, p. 1109; 16 McQuillin, Municipal Corporations, 3rd Ed., § 45.15.

Plaintiff, nevertheless, contends on authority of Wright v. Callahan, 61 Idaho 167, 99 P.2d 961, that the sheriff, being a constitutional officer with duties imposed by territorial law at the time the constitution was adopted (Rev.Stat. of Idaho 1887, § 1871, now I.C. § 31-2202, as amended),...