Pierce v. Doolittle
| Decision Date | 04 April 1906 |
| Citation | 106 N.W. 751,130 Iowa 333 |
| Parties | W. F. PIERCE, Appellant, v. E. DOOLITTLE |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.-- HON. A. B. THORNELL Judge.
ACTION for malicious prosecution in two counts, in the first of which it was charged that defendant maliciously, and without probable cause, filed with the mayor of the town of Carson an information signed and sworn to by defendant charging plaintiff as a physician with the violation of an ordinance of the town in failing to notify the proper officers of the existence of scarlet fever, under which charge plaintiff was arrested, tried before the mayor and found not guilty; and in the second with filing a similar information before a justice of the peace, charging plaintiff with the crime of knowingly failing, neglecting and refusing to obey the rules and regulations of the board of health of the state requiring him as a physician to report in writing to the mayor a case of scarlet fever in which he was the professional attendant which information is also charged to have been malicious and without probable cause, in consequence of which plaintiff was arrested, put on trial before the justice of the peace and convicted but subsequently discharged by the judge of the district court on a writ of habeas corpus. On a motion of defendant, the second count was withdrawn from the consideration of the jury on the ground that the evidence failed to show want of probable cause on the part of defendant for instituting the proceeding. On the first count the case was submitted to the jury, and a verdict was rendered for the defendant. Plaintiff appeals.-- Affirmed.
Affirmed.
Fremont Benjamin, for appellant.
Frank Shinn and A. B. Johns, for appellee.
The elements of an action for malicious prosecution are: (1) Previous prosecution of the plaintiff substantially as alleged; (2) the instigation or procurement of such prosecution by the defendant; (3) the termination of the prosecution by the acquittal or discharge of the plaintiff; (4) want of probable cause; and (5) malice. As to each of these elements plaintiff has the burden of proof. Holden v. Merritt, 92 Iowa 707, 61 N.W. 390; Miller v. Milligan, 48 Barb. 30; 19 Am. & Eng. Encyc. of Law, 653.
The evidence of this case shows beyond question the institution of each of the prosecutions referred to in the two counts of the petition, the one before the mayor, the other before the justice of the peace, by the defendant, and that as charged in these prosecutions the plaintiff had failed to report in writing to the mayor of the town a case of scarlet fever in which he had been the attending physician, as required by an ordinance of the town and the rules of the state board of health. The evidence also tended to show malice in each prosecution on the part of the defendant. It also appeared that the prosecution before the mayor was terminated by the discharge of plaintiff on the ground that the ordinance with the violation of which he was charged had not been legally enacted, and that in the prosecution before the justice of the peace the plaintiff was tried for a misdemeanor which the justice had no jurisdiction to try, because under Code, section 2573, the violation by a physician of the rules of the state board of health is a misdemeanor which is punishable, under Code, section 4906, by imprisonment in the county jail for not more than one year or by a fine not exceeding $ 500 or both such fine and imprisonment, whereas a justice of the peace has only jurisdiction to try prosecutions for "offences less than felony and in which the punishment does not exceed a fine of $ 100 or imprisonment of thirty days" (Constitution, article 1, section 11), for which reason the plaintiff was released from the imprisonment imposed by the justice of the peace, on a writ of habeas corpus. With these essential facts conceded, we proceed to consider the errors relied upon for appellant.
I. The claim that the court erred in dismissing the second count of the petition relating to the prosecution before the justice of the peace is disposed of when we say that the record shows no evidence of want of probable cause, unless such want of probable cause is established by reaching the conclusion that the statute (Code, section 2573) is unconstitutional in providing that anyone who knowingly fails, neglects, or refuses to comply with and obey any order, rule, or regulation of the state board of health is guilty of a misdemeanor. The contention for appellant is that the crimes which are punishable under the statutes of the state must be prescribed by statute and that they cannot be left for determination to boards or tribunals whose rules and regulations are not prescribed by the Legislature itself. In support of this contention cases are cited in which it has been held that the power of the Legislature to enact and repeal laws cannot be delegated. See State v Forkner, 94 Iowa 1, 23, 62 N.W. 772, and cases there referred to. But we do not see the applicability of that well-recognized principle to this case. The offense defined by Code, section 2573, the punishment of which is provided for in Code, section 4906, is not made to depend in any way on any other legislative authority than that upon which the Code itself is founded. The act to be punished is the violation of the rules of the state board of health, a tribunal constituted by law and having the authority conferred upon it...
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