Burke v. Bell , 36 Me. 317 ( 1853 )

Appleton, J. —

The R. S. c. 5, § 22, provides that the inhabitants of a town at a legal town meeting may make such orders and by-laws for managing the prudential concerns of the town as they may judge conducive to the good order and peace of the same and annex penalties not exceeding five dollars for any offence, provided such orders and by-laws shall be approved by the County Commissioners.” By R. S., c. 178, § 31, concerning houses of correction, the overseers of any such town house of correction “may commit thereto for a term not exceeding forty-eight hours, any person publicly appearing in a state of intoxication or in any manner violating the public peace, whenever the safety of the person intoxicated or the good order of the community require it, for the purpose of security, if necessary, till such person can be conveniently ■ carried, before a magistrate and restrained by complaint and warrant in the usual course of criminal prosecutions.” In 1848, by c. 71, § 1, it is made the duty of every sheriff, deputy sheriff, constable, city marshal and his deputies, watchmen and police officers, “ to arrest and detain until a legal warrant for his apprehension can be obtained, every person found violating any law of the State or any legal ordinance or by-law of such city or town.” By $ 2 of this statute, if the officer in the exercise of the power before granted shall act wantonly or oppressively, or shall detain any offender without warrant longer than such time as was necessary to procure a legal warrant, such officer shall be liable to pay all such damages as the person detained shall suffer thereby.

These statutory enactments being in force, the question arises, whether the twenty-second by-law of the town of Eastport, under which the defendant justifies, can afford him any protection, as being in conflict with these provisions. That by-law provides that “ if any person shall be found intoxicated or brawling or fighting in any of the streets or other public places within the town, the police officer or his deputies shall have power to commit such person to the house of correction and confine him for a space not exceeding forty-eight hours. And any person so carried to the house of correction shall forfeit and pay one dollar, and if confined more than one day, two dollars. And of whatever sums received for such commitment and confinement, the master of the house of correction shall be entitled to receive one half for feeding and taking care of such person.” This by-law, it will be perceived, contemplates no criminal proceeding after arrest and commitment. It- does not provide for detention “ till .such person can be conveniently carried before a magistrate and restrained by complaint and warrant” nor “ until a legal warrant for his apprehension can be obtained,” but it authorizes the police officer upon view to arrest and commit without any reference to ulterior criminal proceedings. It leaves the citizen at the mercy of an inferior municipal officer and divests him of the protection of the law. The officer therefore cannot be justified by the by-law in question.

By the common law, it seems that an officer may apprehend upon reasonable grounds of suspicion, and without a warrant, without being liable therefor as a trespasser. So if his suspicions vanish he may discharge the person arrested without bringing him before a magistrate. McCloughan v. Clayton, 3 E. C. L. 161. But it is the duty of the officer so arresting upon suspicion to take the person so arrested before a magistrate as soon as he reasonably can. and if he is guilty of unnecessary delay he is liable, .as a trespasser. Wright v. Court, 4 B. & C. 596.

From the case as reported, it appears that the plaintiff was committed to the house of correction and detained there two days and then discharged. The arrest was not upon suspicion, and the discharge because such suspicions were unfounded. Nor was the commitment and detention for the purpose of restraining the plaintiff till legal proceedings could be had. The defendant is without justification.

Judgment for plaintiff.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.