Watts v. Gerking

• Decision Date: 22 July 1924
• Parties: WATTS v. GERKING ET AL.
• Court: Oregon Supreme Court

228 P. 135

111 Or. 641

WATTS v. GERKING ET AL.

Supreme Court of Oregon

July 22, 1924

Burnett and Rand, JJ., dissenting.

In Banc.

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

On reargument. Former decision (222 P. 318) set aside, and judgment affirmed.

The judgment in this case having been reversed by opinion of this court reported in 222 P. 318, we have again considered it on reargument.

This is an action for damages for an alleged malicious prosecution of Homer I. Watts by George Gerking, Alf Oftedahl, R.I. Keator Mrs. Charles Betts, and N.H. Desper, arising from an averred violation of the prohibition liquor law by Watts, the plaintiff herein. The complaint alleges the institution of a judicial proceeding against Watts, the want of probable cause for such original proceedings, malice, the termination of the original proceedings in favor of this plaintiff, and that plaintiff has sustained damages in the sum of $50,000. The defendant R.I. Keator answered by filing a separate demurrer in which, among other things, he averred the failure of the complaint to state facts sufficient to constitute a cause of action. It was stipulated, and the issue of law made by the demurrer was tried upon the theory, that defendant Keator, at all the times mentioned in the complaint, was the prosecuting attorney for the district of Umatilla county, Or., and that this is an action for malicious prosecution. From a judgment sustaining the prosecuting attorney's demurrer and dismissing the action as to him, plaintiff appeals to this court, assigning error of the court on the face of the record, in sustaining defendant Keator's separate demurrer, and entering judgment.

Homer I. Watts and E. C. Prestbye, both of Athena, for appellant.

C. Z Randall and Jas. A. Fee, Jr., both of Pendleton (Fee & Fee of Pendleton, on the brief), for respondent.

BROWN J. (after stating the facts as above).

The precise question involved in this appeal has never before been presented to this court for determination. Plaintiff's complaint avers that the defendants ransacked his residence, and seized, on his premises, the following intoxicating liquors:

"91 quarts of whisky and brandy; 5 quarts of vermouth; 4 quarts of gin; 1 bottle of beer; 12 quarts of old Scotch whisky; 3 bottles of Virginia Dare; about 1 gallon of gin in a keg; 5 gallons of whisky in a keg; 2 gallons of Scotch whisky in a jug; part of a bottle of kimmel; 1 small brown jug; and several parts of bottles of other intoxicating liquors,"

--and that they falsely and maliciously accused him of violating the prohibition liquor laws of this state.

It will be seen from the allegations of the complaint that the plaintiff possessed all the liquor that the information filed against him charged him with possessing and that he was keeping it at his residence in Umatilla county, Or., as charged. The error made by the district attorney seems to consist in his charge as to the alleged use made of such liquor by the plaintiff, who avers that he purchased and stored the liquor in his residence prior to January 1, 1916.

In the beginning of our consideration of this appeal we should remember that an action for malicious prosecution is not a favorite of the law.

"Public policy favors prosecutions for crime, and requires that a person who in good faith and upon reasonable grounds institutes such proceedings upon a criminal charge shall be protected. The presumption of law is therefore that every prosecution for a crime is founded on probable cause and is instituted only for purposes of justice." 19 A. & E. Ency. of Law (2d Ed.) 650.

The editors of Ruling Case Law have written:

"* * * The action for malicious prosecution is not favored in law, and hence has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another, and the courts have allowed recovery only when the requirements limiting it have been fully complied with. The disfavor with which the action is looked upon is especially marked in cases where the suit is being brought for the institution of criminal proceedings against the plaintiff, as public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage." 18 R. C. L. p. 11.

Again:

"Actions for malicious prosecutions are regarded by law with jealousy. Lord Holt said, more than two hundred years ago, that they 'ought not to be favored but managed with great caution.' Their tendency is to discourage prosecution for crime, as they expose the prosecutors to civil suits, and the love of justice may not always be strong enough to induce individuals to commence prosecutions, when, if they fail, they may be subjected to the expense of litigation, if they be not mulcted in damages." Newell on Malicious Prosecution, p. 21.

The defendant asserts, in effect, that the district attorney was required by the Oregon Prohibition Law (Or. L. § 2224--55) to commence and prosecute that criminal action against the defendant, although the officer knew that the affidavit was perjured and that none of the statements relied upon were true. He contends that in the event of his failure to prosecute he would have subjected himself to the penalties prescribed by section 2224--44 of the act. In this contention we cannot agree. The district attorney, in determining whether to institute a prosecution, is a quasi judicial officer, who possesses a certain discretion as to when, how, and against whom to proceed. 23 A. & E. Encyc. of Law (2d Ed.) p. 275.

The power conferred upon a district attorney is not purely ministerial.

"Their discretion is limited; but that--as a necessity--they do possess a discretion, is indisputable. In nearly every instance, they alone determine when, how and who to prosecute or sue in the name of the state." Farrar v. Steele, 31 La. Ann. 640.

The duty of the district attorney is well stated in Commonwealth v. Nicely, 130 Pa. 261, 270, 18 A. 737, 738, where the court said:

"The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes."

"The prosecuting attorney is a sworn minister of justice, whose duty it is to see that the innocent are protected, as well as that the guilty are brought to punishment, and who must stand indifferent as between the accused and any private interest." Weeks on Attorneys at Law (2d Ed.) § 282a.

The Supreme Court of Michigan, in Engle v. Chipman, 51 Mich. 524, 16 N.W. 886, spoke as follows:

"The prosecuting attorney is a very responsible officer, selected by the people and vested with personal discretion intrusted to him as a minister of justice. and not as a mere legal attorney. He is disqualified from becoming in any way entangled with private interests or grievances in any way connected with charges of crime. He is expected to be impartial in abstaining from prosecuting as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned. This discretion is official and personal."

That part of the Prohibition Law defining the duties of a district attorney will be presumed to have been enacted by the Legislature with full knowledge of the existence of section 1018, Or. L., investing the district attorney with discretion, as well as charging him with a duty.

It is a familiar rule of interpretation that--

"In the construction of a particular statute * * * all acts relating to the same subject * * * should be read in connection with it, as together constituting one law." 36 Cyc. 1147, 1148.

The provisions of the Prohibition Law relative to the duty of the district attorney to prosecute for the commission of a crime did not repeal, either directly or by implication, section 1018, Oregon Laws, defining his duties. That section of the Code should be read in connection with the provisions of the Prohibition Law defining his duties. In truth, the Prohibition Law is in accord with section 1018.

"If any prosecuting officer shall be notified or have knowledge of or reason to suspect any violation of any of the provisions of the laws of this state relating to intoxicating liquors, it shall be his duty forthwith diligently to inquire into the facts of such violation. * * *" Or. L. § 2224--50.

This section authorizes the district attorney to issue process, commanding the attendance of persons who he believes have information of the violation of the liquor laws.

Section 2224--51 provides for the swearing of witnesses who are called before the district attorney, and for reducing their testimony to writing.

Section 2224--52 empowers the district attorney to administer oaths or affirmations to the witnesses before him.

Section 2224--54 provides:

"If the testimony so taken discloses that there is reasonable ground to believe that an offense has been committed, the prosecuting officer shall at once prosecute the person or persons suspected of committing the offense. * * *"

Section 2224--55 enacts that--

"If the sworn statement of any witness so taken before any prosecuting officer or magistrate, as in the last preceding section provided, shall disclose the fact that intoxicating liquors are being kept for unlawful sale or purpose, or are being sold by an unknown person or persons particularly describing such unknown person or persons, contrary to the provisions of this act, at any place, particularly describing the place to be searched and the property to be seized, as hereinafter provided, within such county, it shall be the duty of such

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