Ela v. Smith , 71 Mass. 121 ( 1855 )

Bigelow, J.

This case presents for the first time to the consideration of the court questions of great interest and importance, arising on the true construction and practical operation of those provisions of the statutes, by which authority is given to certain civil officers to call out the organized militia of the Commonwealth to aid in preserving the public peace and enforcing the laws. It is obvious that the nature of the case necessarily leads to an inquiry into the powers and duties of magistrates in the exercise of some of their highest functions, and to a determination of the rights and obligations of citizens, when put to the severest test to which they can be subjected in a well ordered and law-abiding community. It was therefore a wise act of judicial discretion in the judge who presided at the trial to withdraw the case from the consideration of the jury, in order that the legal principles applicable to the facts provee might be first deliberately settled and adjudicated. By such a course, the rights of all parties were preserved, and, in the event of another trial, an intelligent, safe and impartial verdict rendered more certain.

The provisions of law, on which the defendants Smith, Ed« mands and Evans rely for a justification of the acts of trespass alleged in the plaintiff’s writ, are found in St. 1840, c. 92, establishing the volunteer militia, §§ 27—29. These are reenactments of the Rev". Sts. c. 12, §§ 134—136, with the addition of mayors of cities to the list of civil officers by whom an armed force may be called out; and are intended to prescribe the same mode of calling out the “ volunteer militia ” in aid of the civil authority, as was provided in the Rev. Sts. for calling out, in like case, a portion of the entire organized militia of the State. The aspect in which this case is presented renders it unnecessary to consider in detail the provisions of the Rev. Sts. c. 129, § 5, which are applicable only where a tumult or riot actually exists, and a military force, having been duly called out, is employed in suppressing or dispersing it. Such was not the case here. The defendants justify on the ground, and the evidence tends to prove, that an unlawful assembly or mob was threatened, and that it was in view of the imminent danger to the public peace, and an anticipated violence and resistance to the laws, that the acts charged in the declaration were committed. It is to the rights, powers and duties of the defendants, acting in their official capacities in such án exigency, that the whole inquiry in the present case is to be limited.

By the sections of St. 1840, c. 92, above cited, it is provided, among other things, that the mayor of a city, or any other of the civil officers therein designated, may, in case a “ tumult, riot or mob shall be threatened, and the fact be made to appear to ” him, issue his precept, the form of which is prescribed by § 27, to call out a division or any smaller body of the volunteer militia “ to aid the civil authority in suppressing such violence, and supporting the laws.” In exercising the authority thus conferred, the statute malíes it the first duty of the mayor or other magistrate to determine whether the occasion for calling out a military force exists. This depends on a question of fact, which it Is his exclusive duty to determine. If it be made to appear to him that a tumult or riot is threatened, he may then issue his nrecept. He is, in his official capacity, and under the sanction of his oath of office, to examine and decide this question. This provision of the statute clearly confers a judicial power. Whenever the law vests in an officer or magistrate a right of judgment, and gives him a discretion to determine the facts on which such judgment is to be based, he necessarily exercises, within the limits of his jurisdiction, a judicial authority. So long as he acts within the fair scope of this authority, he is clothed with all the rights and immunities which appertain to judicial tribunals in the discharge of their appropriate functions. Of these none is better settled than the wise and salutary rule of law by which all magistrates and officers, even when exercising a special and limited jurisdiction, are exempted from liability for their judgments, o. acts done in pursuance of them, if they do not exceed their authority ; although the conclusions to which they arrive are false and erroneous. The grounds of their judgment cannot be inquired into, nor can they be held responsible therefor in a civil action. Piper v. Pearson, 2 Gray, 120. Clarke v. May, 2 Gray, 410. This protection and immunity are essential in order that the administration of justice and the discharge of important public duties may be impartial, independent and uninfluenced by fear of consequences. And they are the necessary result of the nature of judicial power. It would be most unreasonable and unjust to hold a magistrate liable for the lawful and honest exercise of that judgment and discretion with which the law invested him, and which he was bound to use in the discharge of his official duties. Nor would there be any security or safeguard to the magistrate or other officer against liability, however careful and discreet he might be in exercising his authority, ii his judgments were to be examined into and revised in ulterior proceedings against him, in the light of subsequent events, upon new evidence, and with different means of forming conclusions from those upon which he was called upon to act in the performance of his duty. Such an ex post facto judgment might be more sound and wise, but it would not be a just or proper standard by which to try the opinions and conduct of an officer, acting at a different time and under other circumstances Especially is this true in a case like the one at bar, where a public officer is compelled to decide and act promptly in a pressing emergency, and without time or opportunity for careful and deliberate consideration.

If any argument were needed to strengthen this view of the nature of the power conferred by the statute in question, or to show that it is in accordance with the intent of the legislature in creating that authority and jurisdiction, it may be found in the fact that the same power is granted by the statute to a court of record sitting within the county, as is given to the commander in chief and mayors of cities. It is entirely clear that no liability could attach to the judge of a court for exercising his authority and judgment in a matter within his jurisdiction ; and it is equally clear that the same rule must apply to other officers performing the same duty under the same grant of power.

It follows from these considerations, that the question, whether a riot was actually threatened, cannot be inquired into in this action. The judgment of the mayor upon it was conclusive, and having been rightly exercised within the limits of the authority conferred by law, no liability was incurred by him in issuing the precept by which the armed force was called out. Another result also follows as a necessary corollary. The precept of the mayor was in exact conformity to the terms of the statute. It was, therefore, a warrant regular on its face, issued by a magistrate of competent authority, within the scope of his jurisdiction. On familiar principles, it affords a complete justification to all those bound to obey its command, for acts lawfully done by them in pursuance thereof. Fisher v. McGirr, 1 Gray, 45, 46. Whipple v. Kent, 2 Gray, 413.

The armed force having been legally called out and assembled at the place designated in the precept of the mayor, for the reason that “ a tumult, riot or mob was threatened,” the important question arises as to the nature and extent of the authority of the mayor to employ the force for the prevention or suppression of the apprehended violence. A satisfactory answer to this inquiry is furnished by the statute itself, which expressly provides, not only that a military force may be called out when a riot or tumult exists or is threatened, but declares the purpose for which it may be thus ordered to appear, to be “ to aid the civil authority in suppressing such violence, and supporting the laws.” This clearly includes threatened, as well as existing, violence and resistance to the laws. When, therefore, it is provided in § 29 that the troops assembled in pursuance of a precept issued under § 27 11 shall obey and execute such orders as they may then and there receive according to law,” it is manifestly intended to comprehend all necessary and proper orders issued by the officers designated in the statute to effect the purpose for which the military force is called out. If this purpose be to prevent a riot or other unlawful violence, threatened and not actually existing, then the civil officers have the right to employ the troops in all reasonable and proper means to effect this purpose, and the officers and men composing the armed force are bound to obey their commands. Indeed it would be little else than absurd to say that a body of troops might be summoned to aid in carrying out an object distinctly specified in the statute ; but that, when they appeared in pursuance of such summons, no one could egally give them an order to accomplish the purpose for which they were assembled. The right and power to call them out for a particular purpose carries with it, by necessary and reasonable implication, the authority to employ them to effect that object, and to issue all proper orders and use all reasonable means therefor.

Any other construction of the statute would render its provisions, in case of a threatened riot 'or tumult, of no practical utility or advantage. If no orders could be legally issued to the troops, after their assembly under the precept of a mayor or other civil officer, until a tumult, or riot, or other violent resistance to the laws actually existed, it is clear that they could not be effectually employed in efforts to prevent or suppress any anticipated outbreak or disturbance of the public peace.

Nor do we think any sound argument against the existence of a right in the civil officers to issue orders and employ an armed force to prevent a threatened tumult or riot can be drawn from the Rev. Sts. c. 129, § 5, which provide that, when a riot or tumult actually exists, the military force called out to aid the civil au thority shall, upon their arrival at the place of such riot or tumult, obey such orders as they may have received from such officers; on the contrary, the language of that statute clearly implies an authority previously vested in such officers to give all needful and proper orders to the troops to suppress the riot. The manifest purpose of that provision was not to confer a power on the officers named in c. 12, to issue orders to the military force called out by their authority; but only to give the same power to any two of the other officers enumerated in § 1 of c. 129, and by an express enactment to secure ample protection to the troops against any personal liability, while engaged in a difficult and perilous duty.

We have no doubt, therefore, that it was clearly within the authority conferred on the mayor by the statute, to order the troops assembled by his precept on the 2d of June 1854 on Boston Common, to repair thence to any designated portion of the city, there to perform a specific duty or service by him directed, such as clearing the streets from crowds, and preventing the ingress and egress of persons, if, in his judgment, it was expedient and necessary for the purpose of suppressing a tumult or other unlawful violence and resistance to the laws then and there threatened. And this is by no means an extraordinary power. A similar authority, in cases of actual riot or tumult, is vested in all magistrates and civil officers by the well settled rules of the common law. 1 Hawk. c. 28, 4, § 11. Rex v. Pinney, 5 Car. & P. 254, 258, note. Case of Arms, Pop. 121.

It cannot be urged, as a valid argument against the recognition of this authority in civil officers, that it is liable to abuse, and may be made the instrument of oppression. The great security against its misuse and perversion is to be found in the discretion, good judgment and honesty of purpose of those to whom important public duties are necessarily entrusted. But the existence of such authority is essential in a community where the first and most important use of law consists in preserving and protecting persons and property from unlawful violence. The same argument would apply with equal, if not greater force, to the authority clearly given to any two or more of the same officers, when a riot actually exists, to take life, if in their judgment necessary, in which case they are by express enactment to “ be held guiltless and fully justified in law.” Rev. Sts. c. 129, §§ 5, 6.

But while thus recognizing the authority of civil officers to call out and use an armed force to aid in suppressing a riot or tumult actually existing, or preventing one which is threatened, it must be borne in mind that no power is conferred on the troops, when so assembled, to act independently of the civil authority. On the contrary, they are called out, in the words of the statute, “ to aid the civil authority,” not to usurp its functions, or take its place. They are to act as an armed police only, subject to the absolute and exclusive control and direction of the magistrates and other civil officers designated in the statute, as to the specific duty or service which they are to perform. The statute does not even enlarge the power of the civil officers by giving them any military authority; but only places at their disposal, in the exercise of their appropriate and legal functions, an organized, disciplined and equipped body of men, capable of more efficient action in an emergency, and among a multitude, than an ordinary police force. Nor can the magistrate delegate his authority to the military force which he summons to his aid, or vest in the military authorities any discretionary power to take any steps or do any act to prevent or suppress a mob or riot. They must perform only such service and render such aid as is required by the civil officers. This is not only essential to guard against the use of excessive force and the exercise of irresponsible power; but it is required by the fundamental principles of our constitution, which provides that “ the military power shall always be held in an exact subordination to the civil authority, and be governed by it.” Declaration of Rights, art. 17. It does not follow from this, however that the military force is to be taken wholly out of the control of its proper officers. They are to direct its movements in the execution of the orders given by the civil officers, and to manage the details in which a specific service or duty is to be performed. But the service or duty must be first prescribed and designated by the civil authority.

In the present case, therefore, if the division marched from the common, where it was duly assembled and acting, solely under the proclamation of the mayor bearing date of June 2d 1854, addressed to the citizens of Boston, a copy of which was sent to the major general, in which it is stated that he and the chief of police are “ clothed with full discretionary powers to sustain the laws of the land; ” and, by virtue of the discretion thus given, proceeded to clear and guard the streets; it acted without any lawful authority, and the defendants Smith, Edmands and Evans are legally responsible to the plaintiff for any act of force or violence committed upon him, in pursuance of their orders, or in which they or either of them participated.

If, however, it shall be made to appear that the act of clearing and guarding the streets was done in pursuance of a specific order from the mayor, either verbal or written, to effect that purpose, it would be a sufficient justification for all the acts of the defendants, which were reasonable and necessary for the performance of this specific duty; and the plaintiff cannot recover, unless he can show that the force used towards him was excessive and unreasonable. Such specific order may be shown by proof that it was arranged between the mayor and the major general, that the service of clearing and guarding the streets was to be performed by the military force on the happening of a certain specified contingency or event, and that intelligence of the occurrence of such contingency or event was communicated to the major general by the mayor, with an order to carry out and perform the specified duty previously designated and prescribed by him.

It was urged by the plaintiff that all the defendants were liable in this action, because the occasion of the alleged threatened riot or tumult was the surrender of a fugitive slave, and that the provision of the act of congress of 1850, c. 60, authorizing such surrender, was unconstitutional and void, and the proceedings of the United States commissioner in making the surrender illegal and invalid. But it is entirely clear that this argument can have no legitimate bearing on the legal issues presented in this case. The defendants Smith, Edmands and Evans do not justify their acts under the proceedings of the United States commissioner, but solely under the provisions of law authorizing a military force to be called out for the prevention of a threatened riot, of which the removal of a fugitive slave was anticipated as the occasion. The only question, therefore, as to them, is, whether they were legally called out, and acted under orders lawfully given by the civil authority. Besides, the right and duty of calling out a military force to repress and prevent an anticipated riot cannot be made to depend,, in any degree, upon the cause of such threatened disturbance of the peace. It is equally the duty of the civil officers to take all proper steps to prevent a threatened riot or mob, whether it was likely to arise from the enforcement of a constitutional or unconstitutional law. Under our constitution, where the right is secured to every person “ to find a remedy by having recourse to the laws for all injuries or wrongs which he may receive in his person, property or character,” a resort to unlawful violence cannot be necessary or justifiable. If a law be unconstitutional, those whose rights are infringed or invaded by it must seek their redress through the appropriate channels in the constituted tribunals of the country. If they have recourse to illegal violence, they break down the very constitution which they claim as their protection ; and in striving to vindicate their own rights, they violate the rights of others.

Upon the evidence offered by the plaintiff at the trial, there are no sufficient grounds to authorize a jury to find a verdict against Freeman. The acts done by him had no other connection with those of the other defendants, by which the plaintiff alleges he was injured, than necessarily arose from the fact, that the performance of his official act as marshal of the United States was the cause or occasion which rendered it necessary, in the judgment of the mayor, to call out a military force to prevent a threatened disturbance of the peace. He did not ask for the aid of any portion of the militia in the service of the process in his hands ; but, on the contrary, informed the mayor that no such aid was required. In advising that they should be called out to prevent a riot, he only asked for a legal exercise of the authority vested in the mayor. His statement that the expenses incurred by calling out the militia would probably be paid by the president, as they afterwards were, was only a voluntary offer to compensate the city for the lawful service of the military force. He is not shown to have advised or aided in the commission of any unauthorized or unlawful act by which the plaintiff was injured.

It follows, that the question whether the military force was regally and properly called out cannot be drawn into controversy in this case. That was conclusively settled by the action of the mayor in issuing his precept according to the provisions of the statute, and therefore the only questions as to the remaining defendants, Smith, Edmands and Evans, are, whether specific orders were given by the mayor for clearing and guarding the streets on the 2d of June 1854, and if so, whether any of the defendants acted unreasonably, or exceeded the just limits of the authority vested in them by law.

Of course, the question whether the acts charged in the declaration were the result of the orders given for the suppression of a riot, or were the consequence of a sudden outbreak, in which either of the defendants acted upon his own responsibility, will be open, to be determined upon the familiar principles applicable tc actions of trespass upon the person. The defendants cannot be held for the unlawful acts of others, done without their authority, and not coming within the fair scope of the orders given by them. The defendants Smith and Edmands will not be liable to the plaintiff for any force and violence used upon him, beyond that which was necessary to carry into effect the order for clearing and guarding the streets, even if such order was not legally given, according to the rules and principles above stated. Not having been present at the alleged assault, they cannot be held liable for any unauthorized violence of their soldiers. The same rule would apply to Evans, if he did not authorize or participate in the alleged violence offered to the plaintiff.

Case to stand for trial.

A trial was had at February term 1858, before Merrick, J.t and resulted in a verdict for the d ffendants.