The President v. Adolph Schroeder Et Ux.
| Decision Date | 31 January 1871 |
| Citation | 1871 WL 7930,58 Ill. 353 |
| Parties | THE PRESIDENT AND BOARD OF TRUSTEES OF THE TOWN OF ODELLv.ADOLPH SCHROEDER et ux. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.
Messrs. PILLSBURY & LAWRENCE, and Mr. A. P. WRIGHT, for the appellants.
Messrs. HUGHES & MCCART, for the appellees. Mr. JUSTICE WALKER delivered the opinion of the Court:
This was an action on the case, brought by Adolph Schroeder and Hattie Schroeder, his wife, in the Livingston circuit court, against appellants, to recover damages for a false imprisonment. It appears the town of Odell was incorporated under the general laws of this State, and had, by virtue of such laws, passed ordinances for the preservation of the peace, and had appointed officers and entrusted them with the power of enforcing the ordinances thus adopted; that in March, 1868, Mrs. Schroeder was charged, before a justice of the peace of the town, with assault and battery; a warrant was issued, she was arrested, taken before the justice, and on a trial she was fined $15. She was then confined in the town prison immediately on the termination of the trial, which was about dark, and remained so confined until the next evening. The town prison was not close; it was without fire, bedding or other furniture, except a little straw which was damp, until a few hours before she was released, when a stove was put up and a fire made. The weather was cold and very disagreeable.
It is claimed that Mrs. Schroeder received great and permanent injury to her health, and this suit is instituted to recover damages for the injury. On a trial in the McLean circuit court, to which the venue had been changed, the jury found a verdict for $900, upon which the court below rendered a judgment.
It nowhere appears that the constable had any mittimus or warrant for the committal of Mrs. Schroeder to prison. All that is claimed is, that the justice of the peace directed the constable “to take care of her.” Without a mittimus, the constable had no right to imprison her. He had received an execution against her property, but that conferred no power to imprison. The mere order of the justice of the peace “to take care of her,” although it may have made him a party to the imprisonment, could confer no authority. The law has not vested justices of the peace with the power to order persons to be imprisoned at their pleasure. For the breach of a town ordinance, the party forfeits a sum of money that may be recovered by the corporation in an action of debt. But the proceeding is not criminal in its form. The justice of the peace had no more right to order the committal, than he would, at the end of a trial between two individuals, to order the defendant to be imprisoned. And when officers assume the power to imprison without authority of law, or without any of the forms or processes usual and necessary to be employed, they become liable for false imprisonment. The liberty of the citizen can not be so far trifled with, that any constable in the land may of his own volition, commit and hold him in...
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