Tillman v. Beard
| Decision Date | 03 October 1899 |
| Citation | 80 N.W. 248,121 Mich. 475 |
| Court | Michigan Supreme Court |
| Parties | TILLMAN v. BEARD. |
Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.
Action by A. Adelbert Tillman against Abraham L. Beard. From a judgment for defendant, plaintiff brings error. Reversed, and new trial ordered.
Plaintiff was a vender of popcorn and peanuts. He had a machine 5 feet 2 inches long, 2 1/2 feet wide, and about 5 1/2 feet high. The machinery was operated by steam generated by a gasoline burner. Plaintiff had obtained permission from a merchant in the village of Morrice to put his stand in the street in front of his store. There was an ordinance prohibiting the exercise of his vocation without taking out a license. He had taken out no license. The defendant was president of the village. He found plaintiff located as above stated, without a license. He took hold of his machine, ran it out into the street, and ordered the village marshal to arrest plaintiff. The marshal arrested him, and took him to jail, where he was confined about three hours. He was then released, rearrested upon complaint and warrant, convicted, fined, and appealed to the circuit court, where a nolle prosequi was entered, upon the ground that the ordinance was void. When the plaintiff had rested, the court directed a verdict for the defendant.
John T. McCurdy, for appellant.
Watson & Chapman, for appellee.
GRANT C.J. (after stating the facts).
The declaration contains four counts, and alleges assault and battery, false imprisonment, and malicious prosecution.
1. The first arrest, without a complaint and warrant, was illegal. Officers are justified in arresting without a warrant only in cases of felony and breaches of the peace. This is elementary. It is needless to cite authorities. Plaintiff was engaged in no act dangerous to the public, or liable to cause disturbance upon the streets. The act was not malum per se but only malum prohibitum. There was no danger of escape. There was no obstruction in the public highway requiring immediate removal for the convenience of the public. The respondent may have acted in good faith in ordering the arrest of plaintiff, but he certainly acted hastily, and without any legal authority. The statute did not give him, as conservator of the peace, the authority to imprison citizens of the village in this summary manner. By ordering the arrest, he made himself responsible for it, and liable for all its consequences. Webb, Pol. Torts, 264, and authorities there cited; Veneman v. Jones, 118 Ind 41, 20 N.E. 644; Gilbert v. Emmons, 42 Ill. 143.
2. The village was organized under Act No. 3, Pub. Acts 1895. By section 2, c. 4, of said act, the president of a municipality is made a conservator of the peace. He is the chief executive of the village, and, as such, it becomes his duty to see that the ordinances of the village are enforced. We held in Brooks v. Mangan, 86 Mich. 576, 49 N.W. 633, that neither a justice of the peace issuing, nor the officer serving, a warrant under a void ordinance was liable. The reasons for such rule are there fully stated. For the same reason, an officer who, in good faith, makes a complaint in the belief that the ordinance is valid, is not liable. A party in good faith making a complaint for the violation of any law or ordinance is not required to take the risk of being mulcted in damages if courts afterwards hold it unconstitutional. This rule is dictated by the plain principles of public policy. In Marks v. Townsend, 97 N.Y. 590, it is said: 'This rule of exemption is founded in public policy, and is applicable alike to civil and criminal remedies and proceedings, that parties may be induced freely to resort to the courts and judicial officers for the enforcement of their rights and the remedy of their grievances, without the risk of undue punishment or their own ignorance of the law or for errors of courts and judicial officers.' If the officer is protected in the service of the warrant, in which act he is performing a duty imposed upon him by law, why should he not be equally exempt where he is in the performance of his duty in making complaint for the violation of an ordinance of his municipality? I think the reason of the above case covers this. I have not found a case where a police officer, or an officer charged with the duty of enforcing the law, has made a complaint. I find, however, many cases involving the liability of persons making criminal complaints, and thus causing arrests. In Ross v. Griffin, 53 Mich. 5, 18 N.W. 534, plaintiff was arrested on a writ of commitment for contempt. The writ was issued by the judge of the superior court of the city of Detroit upon the motion of the solicitors for the complainant in the suit against Ross. He was discharged by this court upon a writ of habeas corpus the court holding that the commitment was erroneous. This court held that neither the judge nor the solicitors who procured the commitment were liable in an action for false imprisonment, the record showing that they acted in good faith. Where a party had been...
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