Painter v. Ives , 4 Neb. 122 ( 1875 )

Lake, Ch. J.

One of the principal questions argued at the bar, and the one chiefly relied on for a reversal of the judgment of the court below, relates to the jurisdiction of the United States Commissioner over the offense with which Ives was charged.

It was urged on behalf of plaintiff in error, that an action for malicious prosecution cannot be maintained, where the proceedings complained of were had in a court having no jurisdiction of the subject matter of the suit. And this seems to be the correct rule when applied to an action for malicious prosecution, strictly speaking, where an injury to the plaintiff’s character or reputation, caused by the unauthorized proceedings, is the only wrong complained of.

In Bixby v. Brandige, 2 Gray, 129, it was directly decided, that the record of a prosecution and acquittal before a justice of the' peace, who had no jurisdiction of the case, was not sufficient to maintain the action. See also, Marshall v. Betner, 17 Ala., 832.

The commissioner, before whom the complaint of Painter was made, took cognizance of the alleged offense, on the supposition doubtless, that the jurisdiction belonged exclusively to the federal, and not to the state courts. In this however he erred. The'fact that the crime was committed on an Indian reservation, is not, of itself, sufficient to give the federal tribunals jurisdiction thereof. The United States v. Ward, Woolworth C. C. Rep., 17.

On the 19th day of April 1864, Congress passed “an act to enable the people of Nebraska to form a constitution and state government, and for the admission of such state into the Union, on an equal footing with the original States.” 13 U. S. Statutes at Targe, 47. The second section of this act provided what the boundaries of the proposed state should be, and they embraced the reservation in question. This act further declared, in substance, that the state of Nebraska should consist of all the territory included therein, without any exception or restriction whatever. It is true that this proposition was not accepted within the time limited by the act, but when, in February 1866, our present constitution was framed with the view of asking Congress to admit us, reference was distinctly made thereto by section six of the schedule, as follows: “This constitution is formed, and the state of Nebraska asks to be admitted into the Union on an equal footing with the original states, on the condition and faith of the terms and propositions stated and specified in an act of Congress, Approved April 19, 1861, authorizing the people of the territory to form a constitution and state government, the people of Nebraska hereby accepting the conditions, in said act specified.”

And, again, in the act of admission, we find, that special reference is made to said enabling act, and it is distinctly asserted, “ that the said state of Nebraska shall be, and is hereby declared to be entitled to all the rights, privileges, grants and immunities,” in said act contained, and “is hereby admitted into the Union on an equal footing with the original states, in all respects whatever.” General Statutes, 72.

Now it is only within those particular places mentioned in the sixteenth subdivision of section eight, article one, of the federal constitution, that Congress can provide general police regulations for the government of the people. All other places are within the exclusive control of the state government, to whose legislation we must look for the punishment of all ordinary crimes and misdemeanors. From this it would seem clear that at the date of our admission into the Union, every portion of territory within the prescribed boundaries of the state, the Indian reservations included, became subject to its laws, and that for the punishment of all ordinary crimes, such as that under consideration, resort could alone be had to state laws, administered by the proper state courts. I conclude therefore that the commissioner assumed a jurisdiction which he did not in fact possess, and that all his acts were eoram non jtidiee, and merely void.

But while it is doubtless true, that these proceedings would not sustain an action for malicious prosecution, under the rule above recognized, still I think the petition states a good cause of action. In addition to all that would be required in that form of action, it is expressly alleged that in consequence of such prosecution, in fact, in pursuance thereof Ives was arrested and thrown into jail, and put to great trouble and expense in procuring his release from said imprisonment. Thus a clear case of false imprisonment is set out, for which the plaintiff in error was surely liable, for it was by his direct procurement that the illegal warrant, under which the defendant in error was arrested and imprisoned, was issued. At the common law this would have sustained an action for trespass, this being the appropriate remedy for an arrest under a void process, or where the court had no jurisdiction of the subject matter of the suit, and the proceedings, therefore, were simply void. This being so, it follows that the several rulings of the court below, as to the sufficiency of the petition, were entirely correct and must be sustained.

But it is further claimed that the court erred in the admission of certain testimony to thfe jury. On this point the record shows, that the defendant in error offered in evidence the information made b/ Painter, on which the warrant for his arrest was issued, and under which he was incarcerated in jail. The making of this complaint was a material averment, introduced for the purpose of showing the connection of plaintiff in error with the arrest which followed, and had it been denied, must have been proved as a part of Ives’ case. Not only is there no denial, however, on the part of Painter, that he made the affidavits, but he expressly admits it to be true, and asserts that he made it in the utmost good faith. "While therefore this proof was wholly unnecessary, under the issues, it was not error to permit it to go to the jury. It could have done no ¡possible harm.

The admission of the testimony of Rice Arnold, is also assigned for error. This testimony related to the arrest and imprisonment of the plaintiff, and I can see no good reason why it should not have been given to the jury. But even if there were good reason for excluding it, no objection having been made, on the tidal, to its admission, it is now too late to complain.

The court was requested, on behalf of the plaintiff in error, to instruct the jury, that in estimating damages, in case they found for Ives, they should not consider the fact of his imprisonment in jail at Blair. The instruction was refused and an exception duly taken. It was probably asked for in view of the testimony of the witness Arnold, who had sworn, in substance, that as sheriff of Washington county, he arrested the defendant in error and held him in custody, at the request of the deputy United States Marshal, to whom the warrant had been delivered for service, who had telegraphed to him for that purpose. I think it is sufficiently plain from the record, that whatever was done by Arnold was the legitimate result of the suing out of the warrant* by the plaintiff in error. But even if the record were not entirely satisfactory on this point, inasmuch as it does not appear that all the evidence on this branch of the case has been preserved, the presumption is, that it was ample to warrant the instruction.

The court was further requested to charge that “ it was the duty of the jury to find for the defendant if they believe he acted in good faith, and with an honest motive, in making the complaint.” This was very properly refused. Mere good faith on the part of Painter, in making the affidavit by virtue of which Ives was wrongfully arrested and imprisoned, would constitute no defénse in an action of this kind, for the injuries actually occasioned thereby. Lawrence v. Lanning, 4 Ind., 194. Bacon v. Town, 4 Cush., 217.

Several other exceptions were taken to the judges charge, but they did not seem to be relied on by counsel, and we shall not notice them. On the whole we think the law was laid down correctly, and seeing no' reason for disturbing the verdict, tbe judgment should be affirmed.

Judgment affirmed.

Gantt, J., concurred. Maxwell, J., did not sit.