State ex rel. Cocking v. Wade

40 L.R.A. 628, 40 A. 104, 87 Md. 529, 1898 Md. LEXIS 142

Opinion

Page, J.,

delivered the opinion of the Court.

This is a suit on the bond of George A. Wade, sheriff of Charles County, to recover damages for his alleged neglect in the performance of his duty, whereby the father of the equitable plaintiffs lost his life. After setting out the bond, it is alleged in the narr., that Joseph Cocking, on the 21st May, 1896, was indicted by the grand jury of Charles County for the crime of murdering his wife, Fannie Cocking and her sister (though he'was “innocent” of the same); that thereupon he was delivered to the custody of said sheriff, to safely keep until discharged in due course of law; that owing to intense excitement throughout Charles County, and to the great danger to the said prisoner from mob violence, the said Cocking had been “removed” to the jail in Baltimore City, but on the same day on which the indictment was found, the said sheriff again “removed” him to “ an old dilapidated building, used as the jail of Charles County, at Port Tobacco (which said building was afterwards superseded as a jail of the said county by a strong new building in the town of La Plata, the said new jail being delivered, ready for use, to the said sheriff on or about the 15th day of June, 1896);” that on the 22nd May a change of venue was granted to St. Mary’s County, and this caused increased excitement to prevail throughout Charles County; that the said sheriff had full knowledge thereof, yet he refused to remove the prisoner to the jail in Baltimore City, though he was requested repeatedly so to do by the said prisoner and his counsel, or to the new jail at La Plata; that not only did the said sheriff so refuse, but also in spite of warnings by the prisoner and his counsel, the guards to the said building at Port Tobacco were removed “and the keys of the said building were placed in the custody and keeping of an aged and infirm negro who did not reside in the premises,” and “the said building and the said prisoner were left wholly unprotected,” and at the mercy of evilly disposed persons; that on the 26th day of June, in the night-time, the jail was attacked by an unknown “body of men,” and the said negro, upon the request of said men, “ opened the doors of said building and delivered the said Cocking to the said unknown body of men,” who took him from thence, and “in the most atrocious, brutal and unlawful manner” conveyed him to a point nearby, and there in the “ presence of the said sheriff who had been warned by the negro, and who did not offer the slightest resistance to the said unknown body qf men in their unlawful purpose, hanged the said prisoner by the neck until he was deadso that the plaintiffs say “ that by reason of said gross negligence of the said Sheriff' Wade, in the custody of said prisoner and his- failure in his duty to safely and properly keep said prisoner as aforesaid, the violent and premature death of said prisoner was occasioned as aforesaid, and that the equitable plaintiffs, children of said prisoner as aforesaid, have thereby been deprived of the support and maintenance of their father, the said prisoner.”

The appellee demurred, the Court sustained the demurrer and the appellants appealed ; so that the sufficiency or not, of this narr., is the only question before us.

It may be proper to observe that in a case like this, whatever right of action belongs to the children of the deceased Cocking, must be such only as they may have under the provisions of Article 67 of the Code ; and to entitle them to sue under that article, the death must be caused “ by wrongful act, neglect or default,” such as would have entitled the party injured to maintain an action and recover damages, if death had not ensued. It follows from this that the matter first to be determined, is, whether Cocking himself (had not his death ensued) would have had a right of action, under all the circumstances, to recover damages for the injuries he received at the hands of the mob.

There is no averment in the narr. that the sheriff has acted with malice, or with evil purpose towards the prisoner, or that he has personally assaulted, or otherwise maltreated him; but it is contended, with force and ability, that he should be held civilly liable, for the acts of the lawless mob, whereby the prisoner lost his life, because with knowledge of the existence of public excitement about the matter, he failed to remove the prisoner from the jail at Port Tobacco to the jail in Baltimore or the new building at La Plata, and having allowed him so to remain at Port Tobacco he removed the guards who had been stationed there to protect the prisoner, and committed the keys to an “old and infirm negro.”

From a very early day the English law has contained provisions defining and regulating the rights and obligations of sheriffs in respect to the custody of persons charged with the commission of crime. As far back as the Statute of 14 Edward III, ch. 10, the right to the custody of the gaols was “rejoined” to the sheriffs of the bailiwicks; and by the 5 Hen. IV, it was ordained-, that none be imprisoned by any justice of the peace, “ but in the common gaol.” In our own State, by statute passed in 1809, and now codified as section 16 of Article 42, no citizen committed to the custody of an officer for a criminal matter shall be removed from thence into the custody of another officer, unless by habeas corpus or other legal writ, except when the prisoner is delivered to a constable, or other inferior officer to be carried to some jail, or shall be removed from one place to another * * in order to his discharge or trial; or in case of sudden fire or infection, or other necessity, or,” &c. Mr. Alexander in his valuable work on the “British Statutes,” remarks of this section that it is “ intended to prevent the vexation and danger of protracted imprisonment which might be occasioned by the removal of the prisoner from one custody to another. And it affirms therefore the principle that the prisoner ought to be committed to the proper prison in the first instance.” This observation is supported by a fair interpretation of sections 43, 44 and 45 of Article 87 of the Code. The first of these sections provides that the sheriff shall “Safely keep all persons committed to his custody by lawful authority until such persons are discharged by'due course of law;” and the place where he shall so “ keep ” them, is clearly indicated by the 45th section. That section -provides that all persons committed under the authority of the United States, the sheriff shall receive and safely keep in jail, “ in the same manner and under like penalties as if such persons were committed under the authority of this State.” Now the jail at Port Tobacco was the common jail of the county; though provisions had been made for another at La Plata, but this one was not in use, though it was finished about the fifteenth day of June. The jail building at Port Tobacco was the place designated by the law for the detention of prisoners, and was the proper place for the detention of Cocking. As a public jail it was under the supervision of the public authorities. By section 22 of Article 51 of the Code, it was the duty of the grand jury to visit "it, and inquire into its condition, the manner in which it was kept, and the treatment of the prisoners. If it were that in any of these respects the sheriff had failed in his duty, he was liable to be proceeded against criminally. His duty to keep safe the prisoner was not for the benefit of the prisoner; it was that he might be detained until discharged in due course of law, but the sheriff cannot under pretence of performing this duty, avail himself of the opportunities his position affords him, to indulge an evil spirit or wreak his malice on those over whom he has control. He must keep his prisoners safe, so that they may be thence discharged in due course of law; he must guard against the prisoner’s own devices ; he must be prepared, as far as he reasonably can, to prevent evilly disposed persons on the outside from releasing them by force or in any wise against law; and if his jail be attacked, he must interpose such resistance as he may be able to employ to defend his building, so that he shall keep his prisoners. How he shall accomplish this, may often be a matter of great difficulty and one calling for the exercise of much judgment and high degree of courage. He will be required to take careful account of all the circumstances that surround him, estimate in cases of outside attack the forces he must encounter, and compare them with his means of defence, and after due deliberation determine what course is best for him to pursue. If he does this honestly, with a full purpose to perform his whole duty, even though he make a mistake, whereby a prisoner is injured, it would be monstrous to hold him civilly responsible for damages to such prisoner. “A public officer is not liable to an action, if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake. A contrary principle would indeed be pregnant with the greatest mischief.” Kendall v. Stokes, 3 Howard 98; Sherman and Redfield on Negligence, sec. 156, and authorities cited. So also he must detain his prisoner in the common jail, unless some necessity makes it proper to remove him; but it is his province to determine when such necessity has arrived ; and if in the honest exercise of his discretion, he fails to remove him in time to avert a prospective danger, he cannot be held civilly responsible.

We are not concerned now with a case in which malicious motives are imputed to the sheriff, as for instance like that of Asher v. Cabell, 50 Fed. Rep. 818, where a United States Marshal having taken a person into his custody and shackled him, “ Knowingly delivered him over to incompetent deputies and the known hostility of mobs.’” Such conduct amounted to participation ; it imputed to the marshal the wicked purpose of permitting, if not aiding, the mob in its unlawful designs, and is wholly inconsistent with the idea of an honest performance of duty. Here no dishonest or wicked purpose on the part of the sheriff is alleged, nor do the facts as set out in the declaration raise such an implication. If it could be shown that he placed the keys in the negro’s hands with the purpose of facilitating the mob in the accomplishment of its purpose to seize and destroy Cocking, or if the facts alleged implied this, the two cases would be parallel. But Cocking was in the common jail where he ought to have been kept. If a necessity arose for his removal, the sheriff had power to so remove him, but it was within his province to determine when such necessity had arrived, and he cannot be made to answer civilly if he made an honest mistake.

But the case made by the narr. goes much farther than the mere safe-keeping of the prisoner. It raises the question how far a sheriff should he held liable for injuries resulting from his failure to preserve the peace from a mob. Stripped of verbiage, the substance of the narr. is that the sheriff is liable in damages for injuries to Cocking, resulting from his failure to preserve the public peace. It is not an escape, for which if it be a criminal matter, he must answer to the public: 1 Blackstone Com. 346, or if it be a civil case to the party injured, as in Slemaker v. Marriott, 5 G & J. 406; but a case where a “body of men,” unknown and ill-disposed, in defiance of law and order, forced themselves into the jail, conveyed the prisoner from thence, and hung him until he w^as dead. The narr. alleges the sheriff was warned by the negro, and was present at the final scene, and offered no resistance, but there is no charge that such passivity was with malicious intent. Such an allegation, we think, was necessary; for if with adequate means to resist the attack, he forebore to employ them, but quietly permitted the mob to have its will, no other conclusion would be possible than that he was a participant. As an officer having the jail in charge, and as a conservator of the peace wielding the executive power of the county for the preservation of the public peace, he cannot stand idly by and allow the evil work to proceed at a time when he had at his command the physical means to stay it. But if his failure to do so was caused bona fide by the fact that he was physically unable to cope with the force confronting him, no responsibility would fall on him. The law applicable to sheriffs as conservators of the peace is so well stated in South v. The State of Maryland, 18 Howard, 396, that we will quote at length from the opinion delivered in that case. “ It is,” said Grier, J., “ an undisputed principle of the common law, that for a breach of a public duty an officer is punishable by indictment; but where he acts ministerially, and is bound to render certain services to individuals for a compensation in fees or salary, he is liable for acts of malfeasance or non-feasance to the party who is injured by them The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only. The history of the law for centuries proves this to be the case. Actions against the sheriff for a breach of his ministerial duties in the execution of process are to be found in almost every book of reports. But no instance can be found where a civil action has been sustained against him for his default or misbehavior as conservator of the peace, by those who have suffered injury to their property or persons through the violence of mobs, riots or insurrections. In the case of Entick v. Carrington, State Trials, vol. 19, p. 1062, Lord Camden remarks : ‘ No man ever heard of an action against a conservator of the peace as such.’ The case of Ashby v. White, 2 Lord Raymond, 938, has been ■quoted to show that a sheriff may be liable to a civil action where he has acted in a judicial, rather than a ministerial capacity. This was an action brought by a citizen entitled to vote for member of Parliament, against the sheriff for refus-' ing his vote at an election. Gould, Justice, thought the ac tion would not lie, because the sheriff acted as a judge; Powis, because though not strictly a judge, he acted quasi judicially. But Holt, C. J., decided the action would lie. 1st. Because the plaintiff had a right or privilege. 2nd. That by the act of the officer he was hindered from the enjoyment of it. 3rd. By the finding of the jury the act was done maliciously. The later cases all concur in the doctrine, that where the officer is held liable to a civil action for acts not simply ministerial, the plaintiff must allege and prove each of these propositions. See Cullen v. Morris, 2 Starkie, N. P. C. 577; Harman v. Tappenden, 1 East, 555,” &c., &c.

(Decided April 1st, 1898).

For these reasons we are of opinion the narr. does not set out a sufficient cause of action.

We will add, that even if it had been charged in the narr. that the sheriff acted maliciously, the official bond of that officer could not be held liable in a case like this. The liability of the sureties is that of an express contract, that the sheriff shall “ well and truly execute the office of sheriff and in all things thereto appertaining, and should well and truly perform all the duties required by law to be by him performed.” This provision, it seems now to be well settled, “ binds the officer affirmatively to the faithful execution of his office. There is no clause to cover an abuse or usurpation of power—no negative words that he will commit no wrong by color of his office, nor do' anything not authorized by law.” State, use of Vanderworker v. Brown, 54 Md. 325; 22 Am. & Eng. Encyclopedia of Law, pages 556 and 557.

For these reasons, it follows from what we have said the judgment must be affirmed.

Judgment affirmed.

Bryan, J.,

delivered the following opinion :

I did not hear the argument in this case; but having been present at the consultation, I approve in all respects of the able opinion which has been delivered. I wish to add a few words in addition to what has been so well said; not, however, as implying that the opinion needs any support.

(Filed April 12th, 1898.)

The deceased came to his death by lynching; and his children have, as equitable plaintiffs, brought an action on the sheriff’s official bond to recover damages for his death. At the threshold of the case, we naturally inquire what is the legal foundation of their claim for damages, and under what circumstances can it be maintained. By the common law no civil action could be maintained for the killing of a freeman. A change was made in this respect by the Act of 1852, which is at present codified as Article 67 of the Code. It was enacted that if any one by his wrongful act, neglect or default should cause the death of another person, he should be liable to an action for damages ; and that this action might be brought in the name of the State for the use of the wife, husband, parent and child of the deceased. A cause of action before unknown was granted to these relatives. It depends entirely on the statute, and it must be prosecuted in the manner therein prescribed and in no other way. It is an action of tort against the individual who did the wrong; and it cannot by any sort of legal transmutation be converted into an action ex contractu. It is for a death caused by tortious means; and it has no reference whatever to a contract, or a bond, or to any responsibilities arising from them. They do not contain any of the elements of the suit authorized by the statute ; and it would be incompetent to set up any such cause of action under its terms. Suppose that the sheriff had executed and delivered to the deceased a bond with sureties, conditioned that he would not kill him ; and he had afterwards slain him with his own hand. Who could have maintained a suit on such a bond ? Most certainly it is not comprehended within the terms of the statute ; and the common law would not give damages in any form of action for the killing. I do not think, therefore, that under any circumstances an action on the sheriff’s official bond could be maintained for the death of the deceased.