Burroughs v. Eastman

24 L.R.A. 859, 59 N.W. 817, 101 Mich. 419, 1894 Mich. LEXIS 950

• Court: Michigan Supreme Court
• Decided: July 10, 1894
• Status: Published

Opinions

Montgomery, J.

This is an action for false imprisonment.

The plaintiff was, by defendant’s directions, arrested while engaged in giving a performance at a theater in the city of Grand Bapids on Sunday evening. There existed an ordinance of the city of Grand Eapids relative to shows, which prohibited a person or company giving theatrical exhibitions on the first day of the week.

1. The charter¹ of the city provides that police officers, in addition to the power and authority possessed by them at common law and under the laws of the State in matters of a criminal nature, shall have the power to arrest without process all persons who shall, in the presence of the arresting officer, be engaged in the violation of any ordinance of the common council of the city, and that the police officer may detain such persons in custody until complaint can be made and process issue for their arrest and trial. It will be seen, therefore, that, so far as the legislative power can go, it has been exercised to authorize an arrest without warrant for an offense against the ordinances of the city which is committed in the presence of the officer. It is insisted, however, that the act which attempts to clothe the officer with this power is unconstitutional.

This Court has repeatedly held that, in the absence of any statutory power or authority, an officer cannot arrest without warrant except on suspicion of felony, or in case of an actual breach of the peace committed in the presence of the arresting officer. See Way’s Case, 41 Mich. 304; Davis v. Burgess, 54 Id. 514; Quinn v. Heisel, 40 Id. 576; People v. Johnson, 86 Id. 175. But whether the Legislature may extend the right to the officer to arrest for other misdemeanors, not amounting to a breach of the peace, has not been directly passed upon, unless it be in the case of Robison v. Miner, 68 Mich. 549. In People v. Johnson, 86 Mich., at page 179, the subject is referred to, but, as the record was not in shape to present the question, it was left undecided.

In Quinn v. Heisel, 40 Mich. 577, Mr. Justice Marston said:

“We are not at present prepared to say that an ordinance of the city of Grand Eapids could authorize arrests without process in cases not justified by common-law principles.”

But this statement in this case was mere dictum, and, if the quaere suggested had been answered in the negative, it would not necessarily follow that the Legislature of the State might not confer a power which the common council of the city, under the charter then in force, could not have conferred.

In Robison v. Miner, it must be conceded, language is employed which might be construed as prohibiting the power of arrest. The statute there under consideration was Act No. 313, Laws of 1887, which contained the peculiar provision that—

“Any person found in the act of violating any of the provisions of this section shall be deemed guilty of a breach cf the peace, and punished accordingly, and the arrest therefor may be without process; and this punishment shall be taken to be in excess of all other manner of punishment in this act provided for a violation of the provisions of this section. All officers authorized to make arrests for a breach of the peace shall have like power to make arrests under the provisions of this section as in other cases of a breach of the peace.”

.These provisions are peculiar and incongruous. It seemed to have been án attempt on the part of the Legislature to confer the power of arrest by a process of first declaring that to be a breach of the peace which is not such in fact, and by further providing that a party might be punished for such breach of the peace in addition to and beyond the punishment provided by the same statute. The conclusion that these provisions could not be maintained, in view of the constitutional provision that no person shall be twice put in jeopardy for the same offense, was undoubtedly correct. As was well said by Mr. Justice

Campbell, in rendering the opinion of the Court:

“This statute is practically, if carried out, a general warrant itself, directing all officers to visit houses and business places without other authority, and make searches and arrests, and close up places of business on their own well or ill founded notion that the law has been violated.”

But, in the course of this opinion, Justice Campbell used language which seems to favor the contention of plaintiff here, as follows:

' “The Constitution prohibits interference with persons or' property without due process of law. The proceedings under this statute are all highly penal, and treated expressly as criminal proceedings. The Constitution expressly prohibits the issue of warrants of search or seizure of persons or property except on a sworn showing, which, it has always been held, must be of facts on personal knowledge such as would establish the legal probability of the cause of complaint. If the Legislature could evade this by providing for seizures and searches without legal warrant, the provision would be useless.”

As to the first provision of the Constitution referred to in the discussion, it means no more than that a person shall not be deprived of liberty except by the law of the land. As to the latter provision, namely, section 26 of article 6, which provides that “no warrant to search any place or to seize any person or things shall issue without describing them, nor without, probable cause, supported by oath or affirmation,” we are constrained to say that this section is not susceptible of the construction which, by implication, is placed upon it in the opinion of Mr. Justice Campbell. The same provision was considered by the supreme court of Alabama in the case of Williams v. State, 44 Ala. 43, and a contention that such provision prohibited an arrest without warrant was concisely disposed of as follows:

“The federal and state constitutions both provide that no warrant shall issue to search any place, or to seize any person or thing, without probable cause, supported by oath or affirmation. As a warrant is the process upon which arrests are usually made, and it cannot be issued without oath, the corollary has been drawn that there can be no arrest without a warrant. The popular error on the subject is our excuse for the assertion of the truism that it is. the issue of the warrant, without oath or affirmation, which is forbidden, and not the arrest without a warrant.”

The statute under consideration in that case authorized an arrest by a policeman without a warrant,, on any day and at any time, for any public offense committed, or a. breach of the peace threatened, in his presence.

It may further be said that, if the constitutional provision last quoted is to be construed as might be implied, from the. language employed by Mr.Justice which existed at common law to arrest for offenses committed in the presence of the officer has been too often recognized since the adoption of our Constitution to be open to question. Mr. Justice Campbell uses the further language: it would exclude all arrests without

“ So far as arrests are concerned, a similar principle applies. Under our system we have repeatedly decided, in accordance with constitutional principles as construed everywhere, that no arrest can be made without warrant, except in cases of felony, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception in cases of breaches of the peace has only been allowed by reason of the immediate danger to the safety of the community against crimes of violence, and it was confined, even in such cases, to instances where the violence was committed in the presence of the officer.”

This language embodies a correct statement of the rule of common law, but, if it is sought to extend its application to a case where the Legislature has authorized the arrest without warrant for offenses, other than breaches of the peace, committed in the view of the arresting officer, we do not find the contention supported by authority. In Bishop's Criminal Procedure (volume 1, § 184) it is said:

“The right of arrest by the "officers of the peace is more or less enlarged by statutory regulations in the several states, as well as, of late, in England; or, if not enlarged, defined. A statute enlarging the right, — -that is, in restraint of personal liberty, — is to be strictly construed. But statutei of this sort are generally held to be constitutional.

In Roberts v. State, 14 Mo. 138, the power of the municipality to provide by ordinance for the arrest of vagrants without warrant was sustained. The same ruling was made in the case of Bryan v. Bates, 15 Ill. 87, and Main v. McCarty, 15 Id. 441.

In Massachusetts the legislature has from time to time provided by statute for the arrest of persons guilty of a particular offense, including the offense of selling liquor contrary to law, and the of Fense of drunkenness, and the power of arrest without warrant for the commission of the offense has been repeatedly sustained. See Jones v. Root, 6 Gray, 435; Mason v. Lothrop, 7 Id. 354; Com. v. Cheney, 141 Mass. 102. See, also, Davis v. American Soc., 75 N. Y. 362.

In White v. Kent, 11 Ohio St. 550, a statutory provision which conferred the right upon police officers to .arrest without process for violations of the city ordinances not amounting to breaches of the peace was upheld. It was said:

“ It is evident that many ordinances necessary for good order and general convenience, as well as for the preservation of morals and decency, would be almost nugatory if offenders could only be arrested upon warrant.”

In Davis v. American Soc., supra, it was held that a statute authorizing an arrest, without process, of one guilty of cruelty to animals, was valid.

In O’Connor v. Bucklin, 59 N. H. 589, a statute authorizing an officer, upon view of any crime or breach of the peace or offense against the police of towns, to arrest without warrant, was sustained.

In State v. Cantieny, 34 Minn. 1, a statute of the state authorizing any peace officer to arrest without warrant for a ‘ public offense committed or attempted in his presence ” was construed and upheld, and it was held that an arrest without warrant for such public offense was authorized, even if the offense did not amount to a breach of the peace. See Wahl v. Walton, 30 Minn. 506. See, also, Beville v. State, 16 Tex. App. 70; Wiltse v. Holt, 95 Ind. 469; Taaffe v. Slevin, 11 Mo. App. 507; Smith v. Donelly, 66 Ill. 464; Scircle v. Neeves, 47 Ind. 289; Jacobs v. State, 28 Tex. App. 79; Butolph v. Blust, 41 How. Pr. 481; Ballard v. State, 43 Ohio St. 340; 1 Dill. Mun. Corp. §§ 210, 211, 414, and cited in notes.

It will be seen that the question has arisen in many of our sister states, and the power to authorize arrest on view for offenses not amounting to breaches of the peace has been affirmed. Our attention has been cabled to no case, nor have we’in our research found one, in which the contrary doctrine has been asserted. We think that, while the language in Robison v. Miner may furnish justification for the contention which is made by the plaintiff here, the language which we have referred to, bearing that construction, was not necessary to a determination of the question theye involved, and should not be followed.

£The right to arrest without warrant applies as well to felonies made so by statute after the adoption of the Constitution as to offenses which are felonies at the common law, and this without express legislation providing for such arrest; Firestone v. Rice, 71 Mich. 377. This holding is wholly inconsistent with the claim that what is due process of law must be determined by what arrest without warrant was permissible at the time of the adoption of the Constitution. It is illogical to say that the Legislature may, by defining a particular offense as a felony, or providing for its punishment as such, authorize an arrest without warrant for such offense not committed in the presence of the officer, and yet it may not by statute authorize arrest for a misdemeanor committed in the presence of the officer. The necessity may be as great in the one case as in the other, and the case of Firestone v. Rice illustrates that the rule is not irrevocably or inflexibly fixed by the state of the law as it existed prior to the adoption of the Constitution?! The same provision of the Constitution which protects'iLe person protects the property from invasion without due process of law, and yet statutes which have prescribed what use of property shall constitute a nuisance, and authorized its summary destruction when so used, have been upheld by the courts (Hart v. Mayor, etc., 9 Wend. 571; Meeker v. Van Rensselaer, 15 Id. 397; American Print Works v. Lawrence, 21 N. J. Law, 248), and fully approved by the Federal Supreme Court in the recent case of Lawton v. Steele, 152 U. S. 133. See, also, People v. Brooks, ante, 98.

2. Appellant also contends. that the verdict of the jury finding the defendant guilty should not be allowed to stand because of the inconsistency in the verdict rendered. The actual arrest, which was made by the direction of the defendant Eastman, was made by one Hurley, lieutenant of police. Hurley was joined with defendant Eastman, and upon the trial Eastman was found guilty, and Hurley not guilty. It does not appear whether the plaintiff has rested content with the verdict in favor of Hurley; but, while it may be that the jury rendered an inconsistent verdict, it does not follow that defendant Eastman can take advantage of it. The plaintiff could have nolle prosequied the case as against Hurley at any stage, and have proceeded to try the issue as against Eastman. The plaintiff might, after verdict, have moved for a new trial as against defendant Hurley, and a different result might be. reached on another trial. We think the point should be overruled.

The circuit judge, however, erred in instructing the jury that the Legislature has not the power to authorize an arrest for an offense not amounting to a breach of the peace, without warrant, -if committed in view of the officer.

For this reason, the judgment will be reversed, with costs, and a new trial ordered.

Grant and Hooker, JJ., concurred with Montgomery, J.

1 Charter, 1891, p. 60; Local Acts of 1885, p. 88.