Forrist v. Leavitt , 52 N.H. 481 ( 1872 )

Foster, J.

Any justice, upon view of a breach of the peace, or other transgression of the law proper for his cognizance, or when necessary for the preservation of the peace, may command any officer or other person to arrest the offender. Gen. Stats., ch. 236, sec. 7.

If the officer or other person thus commanded shall not obey such command, he shall be subject to the same penalty as for disobeying an officer. Gen. Stats., ch. 236, sec. 8.

This penalty is a fine not exceeding ten dollars. Gen. Stats., ch. 236, sec. 2.

The verbal command, therefore, is just as imperative upon the officer as a formal warrant founded upon a formal complaint.

The jury in the case before us have found, by special verdict, that the justice did not give the order for the plaintiff’s arrest in good faith, and upon reasonable cause to believe him guilty.

But the sheriff, to whom a warrant or other process is committed for service, is not accountable for the mistakes, or for the corrupt or malicious motives or proceedings, of the magistrate issuing the warrant.

It may be said that the justice did not view an offence; and such may well be regarded as the result of the special verdict. He could only issue a valid order upon view of an offence. Therefore the order was void. Therefore, again, “avoid warrant [or order] affords no protection to the officer serving or attempting to serve the same.” All this is true and sound ; but the answer to the argument is supplied by the language of the court in State v. Weed, 21 N. H. 268, and the illustrations there presented: “ as connected with the magistrate, it is a void warrant in toto ; but, in the hands of the officer, voidable only.” “ A process is void as to all connected with it, when upon its face it wants essential legal form and substance. A seal, for instance, being one of the legal requisites to give vitality to a process, is essential, and its absence renders the precept absolutely void.”

But the new power conferred upon a justice of the peace, by section 7 of chapter 236, permits the magistrate to dispense with the seal and with any writing. The absence of the seal and the writing, therefore, is no want of essential legal form and substance. If the warrant is issued for an offence not within the jurisdiction of the magistrate to try, or to arrest a person over whom he has no legal authority, and these facts appear upon the papers, they are void. Or, if an officer undertakes to serve a process not within his precinct, his acts are all void. “ In all such cases the process shows upon its face its illegality; and the officer will not be protected, because he is acting by virtue of papers which, it is apparent from their inspection, have no legal vitality.”

In the case before us, the offences enumerated in the brief statement, and upon which the order was predicated, were within the jurisdiction of the magistrate to try. They are all within the purview of section 18, chapter 252, Gen. Stats.; and the jurisdiction of justices of the peace, as to the trial of such offences, is conferred by section 4, chapter 234. The alleged offence and the offender were within the defendant’s precinct, as a deputy sheriff. The process, or order of the justice, being verbal, did not disclose “ upon its face ” any illegality ; but the order was, to all intents and to all appearance, fair and legal upon its face.

The cases in our own reports fully sustain the position that a warrant, regular upon its face, issued by a justice having jurisdiction of the subject-matter, founded upon a complaint such as the statute prescribes (ch. 234, secs. 4, 9; 10), will protect a ministerial officer, if he do not exceed his authority in the execution of the warrant, no matter how groundless the complaint, nor how erroneous, irregular, or malicious the proceedings or motives of the party or the magistrate, provided the irregularity be not such as to render the process absolutely void, to the clear apprehension of the officer. Keniston v. Little, 30 N. H. 318; Woods v. Davis, 34 N. H. 328; Kelley v. Noyes, 43 N. H. 210; Batchelder v. Currier, 45 N. H. 460.

And it is impossible for us to conceive any distinction between the case of a written precept and a verbal order, which the magistrate has just as much right to issue and enforce, so far as the duty and responsibilities, the rights and the protection, of the officer required to serve and execute the one or the other are concerned. The same law which confers power upon the magistrate to make an order without writing, and which requires the officer to whom the order is issued to execute it, carries with it, by necessary implication, the same protection afforded him in the service of a written warrant not apparently invalid. Any other view of the matter must render the whole statute, upon which the justice’s order was predicated, nugatory, and practically void. See Batchelder v. Currier, before cited; Allen v. Colby, 47 N. H. 544. No officer, authorized to execute a writ or warrant, is liable in trespass for executing such process, however malicious his conduct may be ; much less if, instead of malice, he merely entertains a reasonable doubt of the party’s liability or guilt; because, being authorized to execute the process, the law will protect him in the performance of that duty; and, if he is guilty of any malicious conduct, he is liable to damages in an action on the case. 4 Bouv. Inst. 31. It is said, even, that an officer is protected in executing process regular on its face, though he may know facts making it void for want of jurisdiction. The People v. Warren, 5 Hill 440;—see Chase v. Fish, 17 Me. 132; Churchill v. Churchill, 12 Vt. 661; Donahoe v. Shed, 8 Met. 326; Dynes v. Hoover, 20 How. 65; 2 Hilliard on Torts 336, 337.

The jury have found by special verdict that the defendant, in executing the order, did not act upon a reasonable belief that the plaintiff was guilty of the offence charged.

But the defendant may well demur to that verdict. What of it ? The jury have not found that the officer acted in bad faith, or exceeded the limits of the justice’s command, or abused his authority or process. The belief, opinion, views, or judgment of the sheriff, are wholly immaterial. Whether, being present, he observed the act which the magistrate deemed offensive and criminal or not, or whether, himself viewing the act, it seemed to him offensive and unlawful, or otherwise, is entirely immaterial. He had no duty requiring him to hear, determine, or view the offence. He was not acting upon his own authority. The order was peremptory; the 'duty imperative. The officer was invested with no judicial discretion. The magistrate alone was empowered to determine, upon his own view and upon his own judgment, whether an offence had been perpetrated ; and if he determined that it had, the sheriff had no right to determine otherwise, and, upon his own dissenting view of the matter, refuse to obey the judicial order.

It would be a singular state of things if a sheriff might refuse to arrest a man charged with murder, larceny, or any other crime, simply because, to use the language of tins special verdict, he has no 16 reasonable belief” that the accused is guilty.

It is manifestly the policy of the law to protect its ministerial officers — those who are required to subordinate,,their own judgments and their own wishes, oftentimes, to the superior authority of judicial officers and tribunals. “ Their duties are, at best, sufficiently embarrassing and responsible.” Webber v. Gay, 24 Wend. 485. They are subjected to severe penalties for disobedience. Gen. Stats., ch. 236, sec. 8. “ In all cases where a justice has power to make an order and direct it to an inferior ministerial officer, and he disobeys it, if there be no particular ¿remedy prescribed, it is indictable.” 1 Russell on Crimes 412. Mr. Cliitty says that “ disobedience of an order of justices, &c., is an offence indictable at common law, though a specific penalty is provided by statute for the neglect of that duty which the order is intended to enforce; nor can a defendant otherwise avail himself, either at the trial or elsewhere, but by showing a want of jurisdiction in the court.” 2 Chitty Crim. Law 279, note m.

The officer is also liable to an attachment for contempt. 2 Hawk. P. C., ch. 22, sec. 4; 2 Bishop Crim. Law, sec. 241; Clark v. Foxcroft, 6 Greenl. 296; Runlett v. Bell, 5 N. H. 433, 437.

Such being the liabilities and the responsibilities of such officers as our sheriffs and their deputies, the law is not subject to the reproach of a failure to accord them commensurate protection. If there be any doubt about this, it is time to repeat and reaffirm the language of Woodbury, J., in Bissell v. Huntington, 2 N. H. 142, 147, in which he seeks "to counteract an opinion, whose origin we do not attribute to this county, that sheriffs and their deputies, so far from being persons in employments both hazardous and difficult, and whose unintentional errors are consequently often to be mitigated or forgiven, are rather mere beasts of prey, and are to be hunted down with the ' hue and cry’ of the whole community.”

Our opinion is, that the instructions requested by the defendant should have been given to the jury; and that those which were given were erroneous. Consequently the verdict must be set aside, and a

New trial granted.