Union Pac. R. Co. v. Belek

• Decision Date: 22 October 1913
• Citation: 211 F. 699
• Parties: UNION PAC. R. CO. v. BELEK et al.
• Court: U.S. District Court — District of Nebraska

211 F. 699

UNION PAC. R. CO. v. BELEK et al.

United States District Court, D. Nebraska, Omaha Division.

October 22, 1913

Brown Baxter & Van Dusen, of Omaha, Neb., for defendants Briggs and others.

Edgar T. Farnsworth, of Omaha, Neb., for defendants Belek and others.

T. C MUNGER, District Judge.

The Union Pacific Railway Company filed a bill of interpleader in this court, alleging that the defendants claimed a reward which it had offered 'for the apprehension of each of the persons' who had engaged in the robbery of one of its trains. There were five of the robbers who were arrested subsequently and convicted. In pursuance of the bill of interpleader and of a stipulation signed by all of the parties setting forth the terms of the offer, a decree of interpleader was entered in the case, from which no appeal was prosecuted, and the railway company paid the reward into court.

Three of the robbers were arrested in Nebraska at one time, and one was arrested in Denver and one in Idaho, whence they had fled after the crimes. The offer was of a separate amount for the apprehension of each of the guilty persons, and, as the acts of arrest of some of the robbers are entirely distinct from those relating to the arrest of the others, separate bills of interpleader doubtless could have been required as to each act of apprehension and the claimants therefor. As a result of the stipulation and decree, several issues are now presented in one suit. The physical arrest of the three robbers, Woods, Torgenson, and Grigware, was made in South Omaha by certain policemen of that city. On their behalf, the claim is made that under the decision of the Court of Appeals of this circuit in McClaughry v. King, 147 F. 463 79 C.C.A. 91, 7 L.R.A. (N.S.) 216, 8 Ann.Cas. 856, they alone are entitled to the reward offered for the arrest of these three robbers, because they alone assumed the personal danger and responsibility of arresting the suspects.

It is conceded by counsel for these claimants that, if the arrest was made by them as a part of their official duties, they could not enforce their claim against the objection of the Union Pacific Railway Company; but they contend that as a result of the decree of interpleader, and of the deposit of the reward money in court, the contract is executed, and the other claimants may not be heard to object to the award of the money to them. The payment by the railway company was not the final execution of the contract, because the payment was not made to any particular person, but into court, and it was for the benefit only of those legally entitled thereto. Ribbans v. Crockett, 1 B. & P. 264.

The other claimants were then called upon to assert their claims. Nothing they have done has estopped them from such assertion, nor from denying the claims of other defendants. It is not necessary, however, that such claimants either plead or contend that the police officers are not entitled to share in the fund, for, if public policy prevents such an award, the court of its own motion must refuse the relief asked by the police officers. Coppell v. Hall, 7 Wall. 542-558, 19 L.Ed. 244; Cooper Manufacturing Company v. Ferguson, 113 U.S. 727-733, 5 Sup.Ct. 739, 28 L.Ed. 1137. Was it the duty of these officers to make these arrests? A passenger train going east upon the Union Pacific Railway had been boarded by three men at the city of Fremont, who had climbed over the tender and by the display and threatened use of firearms had compelled the engineer to stop the train at an appointed place, where two more bandits were in waiting. The five then compelled the engineer and fireman to accompany them to the mail car, where the postal clerks were overpowered, and some mail sacks, with their contents, were taken. The railway company at once offered the reward mentioned, and, at the time the three men were arrested by the South Omaha police officers, no complaint had been filed in any court. The reward was offered 'for the apprehension of the persons who, on or about the 22d day of May, 1909, in the nighttime, held up and robbed of a part of the United States mail being carried thereon, one of the trains of' the Union Pacific Railway Company, known as the Overland Limited.

The offer they made was for the arrest of those who had committed the offense of train robbery, a felony, as defined in section 13a of the Nebraska Criminal Code, and had also committed the offense of robbery of the mails, as defined in the statutes of the United States. Rev. St. U.S. Secs. 5472, 5473 (U.S. Comp. St. 1901, p. 3694).

The nature of the arrest must be judged by the situation at that time, and not by the fact that subsequently the prisoners were yielded to the United States marshal and convicted under the statutes of the United States. The prisoners were arrested by officers acting under the authority of the state and were lodged in a jail under like authority, and the state could have retained the custody and caused the prosecution of the robbers. Whether or not the officers acted in pursuance of authority from the United States, they acted in pursuance of the laws of the state at the time of the arrest, and with the evident purpose of holding the prisoners for prosecution by either the state or the United States, as might thereafter be determined by the prosecuting officers. Under the law of the state, the policemen were authorized to make the arrests without a warrant, on reasonable suspicion that a felony had been committed and that the persons arrested had committed it. Diers v. Mallon, 46 Neb. 121-126, 64 N.W. 722, 50 Am.St.Rep. 598; Pritchett v. Sullivan, 182 F. 480, 104 C.C.A. 624.

By sections 283 and 284 of the Criminal Code of Nebraska, it is provided:

'Sec. 283. (Arrest by officer.) Every sheriff, deputy sheriff, constable, marshal, or deputy marshal, watchman, or police officer shall arrest and detain any person found violating any law of this state, or any legal ordinance of any city or incorporated village, until a legal warrant can be obtained.

'Sec. 284. (Arrest by private person.) Any person not an officer may, without warrant, arrest any person, if a petit larceny or a felony has been committed, and there has been reasonable ground to believe the person arrested guilty of such offense, and may detain him until a legal warrant can be obtained.'

Section 64 of article 2, c. 13, Compiled Statutes of Nebraska 1909, which is the charter of South Omaha, contains this clause:

'And the chief of police and policemen shall have power, and it shall be their duty to arrest all offenders against the laws of the state or of the city, by day or by night, in the same manner as a sheriff or constable, and to keep them in the city prison or other place to prevent their escape until a trial or examination may be had before a proper officer, and they shall have the same power as sheriffs and constables in relation to all criminal matters and all process issued by the police judge.'

Section 263 of the Criminal Code of Nebraska defines the duty of constables as follows: 'Sec. 263. (Constables.) Constables shall be ministerial officers of the courts holden by justices of the peace in criminal cases, within their respective counties. And it shall be their duty to apprehend and bring to justice felons and disturbers of the peace, and to suppress riots and to keep and preserve the peace within their respective counties. They shall have power, and they are hereby authorized to execute all writs and process in criminal cases throughout the county in which they may reside and where they were elected or appointed.'

It is apparent that these arrests were made under authority of their office, and that the law protected the policemen, as officers, in so acting. It was contended that the arrests were made by the policemen, either as private citizens or in pursuance of official authority, but not in pursuance of official duty. Neither contention can be accepted. The arrests were such as these officers could make by virtue of their office, and were made in the city of South Omaha and in the apparent exercise of official authority, and it must be presumed that they were made by the officer as an officer and not as a private individual. Somerset Bank v. Edmund, 76 Ohio St. 396, 81 N.E. 641, 11 L.R.A. (N.S.) 1170, 10 Ann.Cas. 726; Witty v. Southern Pac. Co. (C.C.) 76 F. 217-221; Ring v. Devlin, 68 Wis. 384, 32 N.W. 121.

Having authority to make arrests upon reasonable suspicion of felonies having been committed and of the guilt of the persons suspected necessarily implies that such authority shall be used in appropriate cases. Officers may not refuse to use their good judgment in such cases until they are first given a reward by some interested party, or are commanded by a specific warrant. If they may refuse or neglect to arrest one felon whom they have good cause to believe guilty they may refuse to act in all such cases. It often occurs that shots are heard, and cries for help, or accusations of crime ring out, by day or night, indicating to all reasonable men that a serious offense has been committed, and men are seen running away under circumstances of suspicion. Reliable information is often given to officers of the commission of a felony by some one designated, and delay often means the escape of the guilty person. In all such cases, when the law has given the authority to the officer to act, it does not permit him arbitrarily to refuse to exercise it except on the spur of reward or warrant. Because of his authority, the protection afforded to him as an officer, and of his official compensation, it is the duty of an officer to use diligence to exercise his authority to make arrests, when he has reasonable cause to believe a felony has...