
    C. Sumner Burroughs v. William H. Eastman, Impleaded with John Johnson and William J. Hurley.
    
      Constitutional law — Arrest ivithout warrant — Due process of law —False imprisonment — Inconsistent verdict.
    
    1. The provision of the charter of the city of Grand Rapids which authorizes police officers to arrest without process all persons who shall, in the presence of the arresting officer, be engaged in the violation of any ordinance of the city, is constitutional.
    
    2. Where a superintendent of police directs a member of the police force to make an arrest without warrant, and, in a suit for false imprisonment brought against him and the officer making the arrest, a verdict is rendered in favor of such officer and against such superintendent, from which he appeals, his contention that the verdict against him should not be allowed to stand because of the inconsistency of the verdict should be overruled.
    Error to Kent. (Adsit, J.)
    Argued January 22, 1894.
    Decided July 10, 1894.
    Case. Defendant Eastman brings error.
    Beversed.
    The facts are stated in the majority opinion.
    
      Edwin F. Uhl, for appellant.
    
      James E. McBride, for plaintiff.
    
      
       As to right to arrest without a warrant, see note to State v. Hunter, 8 L. R. A. 529.
    
   Montgomery, J.

This is an action for false imprisonment.

The plaintiff was, by defendant’s directions, arrested while engaged in giving a performance at a theater in the city of Grand Bapids on Sunday evening. There existed an ordinance of the city of Grand Eapids relative to shows, which prohibited a person or company giving theatrical exhibitions on the first day of the week.

1. The charter of the city provides that police officers, in addition to the power and authority possessed by them at common law and under the laws of the State in matters of a criminal nature, shall have the power to arrest without process all persons who shall, in the presence of the arresting officer, be engaged in the violation of any ordinance of the common council of the city, and that the police officer may detain such persons in custody until complaint can be made and process issue for their arrest and trial. It will be seen, therefore, that, so far as the legislative power can go, it has been exercised to authorize an arrest without warrant for an offense against the ordinances of the city which is committed in the presence of the officer. It is insisted, however, that the act which attempts to clothe the officer with this power is unconstitutional.

This Court has repeatedly held that, in the absence of any statutory power or authority, an officer cannot arrest without warrant except on suspicion of felony, or in case of an actual breach of the peace committed in the presence of the arresting officer. See Way’s Case, 41 Mich. 304; Davis v. Burgess, 54 Id. 514; Quinn v. Heisel, 40 Id. 576; People v. Johnson, 86 Id. 175. But whether the Legislature may extend the right to the officer to arrest for other misdemeanors, not amounting to a breach of the peace, has not been directly passed upon, unless it be in the case of Robison v. Miner, 68 Mich. 549. In People v. Johnson, 86 Mich., at page 179, the subject is referred to, but, as the record was not in shape to present the question, it was left undecided.

In Quinn v. Heisel, 40 Mich. 577, Mr. Justice Marston said:

“We are not at present prepared to say that an ordinance of the city of Grand Eapids could authorize arrests without process in cases not justified by common-law principles.”

But this statement in this case was mere dictum, and, if the quaere suggested had been answered in the negative, it would not necessarily follow that the Legislature of the State might not confer a power which the common council of the city, under the charter then in force, could not have conferred.

In Robison v. Miner, it must be conceded, language is employed which might be construed as prohibiting the power of arrest. The statute there under consideration was Act No. 313, Laws of 1887, which contained the peculiar provision that—

“Any person found in the act of violating any of the provisions of this section shall be deemed guilty of a breach cf the peace, and punished accordingly, and the arrest therefor may be without process; and this punishment shall be taken to be in excess of all other manner of punishment in this act provided for a violation of the provisions of this section. All officers authorized to make arrests for a breach of the peace shall have like power to make arrests under the provisions of this section as in other cases of a breach of the peace.”

.These provisions are peculiar and incongruous. It seemed to have been án attempt on the part of the Legislature to confer the power of arrest by a process of first declaring that to be a breach of the peace which is not such in fact, and by further providing that a party might be punished for such breach of the peace in addition to and beyond the punishment provided by the same statute. The conclusion that these provisions could not be maintained, in view of the constitutional provision that no person shall be twice put in jeopardy for the same offense, was undoubtedly correct. As was well said by Mr. Justice

Campbell, in rendering the opinion of the Court:

“This statute is practically, if carried out, a general warrant itself, directing all officers to visit houses and business places without other authority, and make searches and arrests, and close up places of business on their own well or ill founded notion that the law has been violated.”

But, in the course of this opinion, Justice Campbell used language which seems to favor the contention of plaintiff here, as follows:

' “The Constitution prohibits interference with persons or' property without due process of law. The proceedings under this statute are all highly penal, and treated expressly as criminal proceedings. The Constitution expressly prohibits the issue of warrants of search or seizure of persons or property except on a sworn showing, which, it has always been held, must be of facts on personal knowledge such as would establish the legal probability of the cause of complaint. If the Legislature could evade this by providing for seizures and searches without legal warrant, the provision would be useless.”

As to the first provision of the Constitution referred to in the discussion, it means no more than that a person shall not be deprived of liberty except by the law of the land. As to the latter provision, namely, section 26 of article 6, which provides that “no warrant to search any place or to seize any person or things shall issue without describing them, nor without, probable cause, supported by oath or affirmation,” we are constrained to say that this section is not susceptible of the construction which, by implication, is placed upon it in the opinion of Mr. Justice Campbell. The same provision was considered by the supreme court of Alabama in the case of Williams v. State, 44 Ala. 43, and a contention that such provision prohibited an arrest without warrant was concisely disposed of as follows:

“The federal and state constitutions both provide that no warrant shall issue to search any place, or to seize any person or thing, without probable cause, supported by oath or affirmation. As a warrant is the process upon which arrests are usually made, and it cannot be issued without oath, the corollary has been drawn that there can be no arrest without a warrant. The popular error on the subject is our excuse for the assertion of the truism that it is. the issue of the warrant, without oath or affirmation, which is forbidden, and not the arrest without a warrant.”

The statute under consideration in that case authorized an arrest by a policeman without a warrant,, on any day and at any time, for any public offense committed, or a. breach of the peace threatened, in his presence.

It may further be said that, if the constitutional provision last quoted is to be construed as might be implied, from the. language employed by Mr.Justice which existed at common law to arrest for offenses committed in the presence of the officer has been too often recognized since the adoption of our Constitution to be open to question. Mr. Justice Campbell uses the further language: it would exclude all arrests without

“ So far as arrests are concerned, a similar principle applies. Under our system we have repeatedly decided, in accordance with constitutional principles as construed everywhere, that no arrest can be made without warrant, except in cases of felony, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception in cases of breaches of the peace has only been allowed by reason of the immediate danger to the safety of the community against crimes of violence, and it was confined, even in such cases, to instances where the violence was committed in the presence of the officer.”

This language embodies a correct statement of the rule of common law, but, if it is sought to extend its application to a case where the Legislature has authorized the arrest without warrant for offenses, other than breaches of the peace, committed in the view of the arresting officer, we do not find the contention supported by authority. In Bishop's Criminal Procedure (volume 1, § 184) it is said:

“The right of arrest by the "officers of the peace is more or less enlarged by statutory regulations in the several states, as well as, of late, in England; or, if not enlarged, defined. A statute enlarging the right, — -that is, in restraint of personal liberty, — is to be strictly construed. But statutei of this sort are generally held to be constitutional.

In Roberts v. State, 14 Mo. 138, the power of the municipality to provide by ordinance for the arrest of vagrants without warrant was sustained. The same ruling was made in the case of Bryan v. Bates, 15 Ill. 87, and Main v. McCarty, 15 Id. 441.

In Massachusetts the legislature has from time to time provided by statute for the arrest of persons guilty of a particular offense, including the offense of selling liquor contrary to law, and the of Fense of drunkenness, and the power of arrest without warrant for the commission of the offense has been repeatedly sustained. See Jones v. Root, 6 Gray, 435; Mason v. Lothrop, 7 Id. 354; Com. v. Cheney, 141 Mass. 102. See, also, Davis v. American Soc., 75 N. Y. 362.

In White v. Kent, 11 Ohio St. 550, a statutory provision which conferred the right upon police officers to .arrest without process for violations of the city ordinances not amounting to breaches of the peace was upheld. It was said:

“ It is evident that many ordinances necessary for good order and general convenience, as well as for the preservation of morals and decency, would be almost nugatory if offenders could only be arrested upon warrant.”

In Davis v. American Soc., supra, it was held that a statute authorizing an arrest, without process, of one guilty of cruelty to animals, was valid.

In O’Connor v. Bucklin, 59 N. H. 589, a statute authorizing an officer, upon view of any crime or breach of the peace or offense against the police of towns, to arrest without warrant, was sustained.

In State v. Cantieny, 34 Minn. 1, a statute of the state authorizing any peace officer to arrest without warrant for a ‘ public offense committed or attempted in his presence ” was construed and upheld, and it was held that an arrest without warrant for such public offense was authorized, even if the offense did not amount to a breach of the peace. See Wahl v. Walton, 30 Minn. 506. See, also, Beville v. State, 16 Tex. App. 70; Wiltse v. Holt, 95 Ind. 469; Taaffe v. Slevin, 11 Mo. App. 507; Smith v. Donelly, 66 Ill. 464; Scircle v. Neeves, 47 Ind. 289; Jacobs v. State, 28 Tex. App. 79; Butolph v. Blust, 41 How. Pr. 481; Ballard v. State, 43 Ohio St. 340; 1 Dill. Mun. Corp. §§ 210, 211, 414, and cited in notes.

It will be seen that the question has arisen in many of our sister states, and the power to authorize arrest on view for offenses not amounting to breaches of the peace has been affirmed. Our attention has been cabled to no case, nor have we’in our research found one, in which the contrary doctrine has been asserted. We think that, while the language in Robison v. Miner may furnish justification for the contention which is made by the plaintiff here, the language which we have referred to, bearing that construction, was not necessary to a determination of the question theye involved, and should not be followed.

£The right to arrest without warrant applies as well to felonies made so by statute after the adoption of the Constitution as to offenses which are felonies at the common law, and this without express legislation providing for such arrest; Firestone v. Rice, 71 Mich. 377. This holding is wholly inconsistent with the claim that what is due process of law must be determined by what arrest without warrant was permissible at the time of the adoption of the Constitution. It is illogical to say that the Legislature may, by defining a particular offense as a felony, or providing for its punishment as such, authorize an arrest without warrant for such offense not committed in the presence of the officer, and yet it may not by statute authorize arrest for a misdemeanor committed in the presence of the officer. The necessity may be as great in the one case as in the other, and the case of Firestone v. Rice illustrates that the rule is not irrevocably or inflexibly fixed by the state of the law as it existed prior to the adoption of the Constitution?! The same provision of the Constitution which protects'iLe person protects the property from invasion without due process of law, and yet statutes which have prescribed what use of property shall constitute a nuisance, and authorized its summary destruction when so used, have been upheld by the courts (Hart v. Mayor, etc., 9 Wend. 571; Meeker v. Van Rensselaer, 15 Id. 397; American Print Works v. Lawrence, 21 N. J. Law, 248), and fully approved by the Federal Supreme Court in the recent case of Lawton v. Steele, 152 U. S. 133. See, also, People v. Brooks, ante, 98.

2. Appellant also contends. that the verdict of the jury finding the defendant guilty should not be allowed to stand because of the inconsistency in the verdict rendered. The actual arrest, which was made by the direction of the defendant Eastman, was made by one Hurley, lieutenant of police. Hurley was joined with defendant Eastman, and upon the trial Eastman was found guilty, and Hurley not guilty. It does not appear whether the plaintiff has rested content with the verdict in favor of Hurley; but, while it may be that the jury rendered an inconsistent verdict, it does not follow that defendant Eastman can take advantage of it. The plaintiff could have nolle prosequied the case as against Hurley at any stage, and have proceeded to try the issue as against Eastman. The plaintiff might, after verdict, have moved for a new trial as against defendant Hurley, and a different result might be. reached on another trial. We think the point should be overruled.

The circuit judge, however, erred in instructing the jury that the Legislature has not the power to authorize an arrest for an offense not amounting to a breach of the peace, without warrant, -if committed in view of the officer.

For this reason, the judgment will be reversed, with costs, and a new trial ordered.

Grant and Hooker, JJ., concurred with Montgomery, J.

McGrath, C. J.

(dissenting). I am not prepared to overrule the doctrine of Robison v. Miner, 68 Mich. 549. The statute under consideration in that case, as in the present case, empowered officers to arrest without .process, and it was with reference to that provision that the language of Mr. Justice Campbell, referred to by my Brother Montgomery, was used, and there is no room for saying that that language was unnecessary to a determination of the question there involved. The evident intent of the Legislature in the provision under consideration was to bring the offense aimed at within the category of breaches of the peace, in order to subject it to the incidents of offenses of that class.

In Altor v. Wayne Co. Auditors, 48 Mich. 76, 97, Mr. Justice Campbell says:

“The Constitution has also provided that no one shall be deprived of liberty without due process of law, and ha's provided that no warrant shall issue except upon oath or affirmation establishing probable cause. It has been settled for centuries, and the doctrine has been recognized here,' that except in cases of reasonable belief of treason or felony, or breach of the peace - committed in presence of an officer, there is no due process of law without a warrant issued by a court or magistrate upon a proper showing or finding.”

As was said by Mr. Justice Cooley in Weimer v. Bunbury, 30 Mich. 201, 213:

“The Constitution makes no attempt to define such process, but assumes that custom and law have already settled what it is. Even in judicial proceedings, we do not ascertain from the Constitution what is lawful process, but we test their action by principles which were before the Constitution, and the benefit of which we assume that the Constitution was intended to perpetuate. * * * The bills of rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments, rather than reformatory, and they assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law, and thus secured against violation. We are, therefore, of necessity, driven to an examination of the previous condition of things, if we would understand the meaning of due process of law, as the Constitution employs the term.”

It may well be asked what principle was perpetuated or secured against abrogation or violation, if what constitutes due process of law is made to depend upon the will of the Legislature as expressed in any one of our many and varied municipal charters. If this constitutional provision be not regarded as a limitation of the power of the Legislature, then the statute is in each instance the test of authority, and the constitutional provision is without office or force. That provision is not necessary to support or protect the statute. The latter is to be construed in subordination to the Constitution, and is to be tested by that instrument. The term “ due process of law ” had a well-settled meaning when the Constitution was adopted, of which the framers of that instrument must be presumed to have had knowledge, and with reference to which it must be presumed that they acted. Subsequent legislation cannot change the meaning or effect of a constitutional provision. A statute may provide for a removal from office, or for the taxation or taking of property, without notice or hearing; but, although such would be a process provided by law, it will not be contended that a removal or a taking thereunder would not be a plain violation of the Constitution. Such statutory process, when tested by principles which were before the Constitution, would be found to lack essential requisites of due process. The Constitution nowhere in express terms speaks of notice or a day in court, but, notwithstanding, these are universally recognized as essential incidents of due process. In Weimer Bunbury, supra, Mr. Justice Cooley subjected the process under consideration in that case to the test of settled rules which antedated the Constitution. Any other test would violate a cai’dinal rule of constitutional interpretation, subject - provisions designed for the protection of persons and property to legislative modification, and make the meaning of a term employed in the fundamental law, which term had, at the time of the adoption of the Constitution, a well-known signification, depend upon the language used in a municipal charter or ordinance.

The facts in many of the cases cited by my Brother Montgomery bring the cases clearly within rules as laid down by this- Court.

In State v. Cantieny, 34 Minn. 1, respondent and his companions were intoxicated, noisy, and disorderly in the night-time, in a public street. An officer undertook to disperse them, and a scuffle ensued, during which an attempt was made to take away from the officer his baton. He undertook to az-rest one of them, and was shot. Not only were the' parties guilty of a distuz-bance of public tranquillity, but of a bz’each of peace against the officer.

In Beville v. State, 16 Tex. App. 70, the party was intoxicated in a public place, and in the act of committing a breach of the peace.

In Wiltse v. Holt, 95 Ind. 469, the officer, having knowledge that the appellee had previously threatened the life of one Bogart, and hearing a .disturbance in Bogart’s office, and seeing the appellee emerge from, the office in an intoxicated condition, wild with excitement and anger, arrested him.

In Bryan v. Bates, 15 Ill. 87, it was held that the powers of cities and their ministerial officers were not changed by the new constitution. The arrest was of a person who was drunk, and was disturbing the peace by violent, tumultuous language, calculated to provoke a breach of the peace.

In Scircle v. Neeves, 47 Ind. 289, the party arrested was in the public streets in a state of gross intoxication, unable to walk or stand without support, and when found was prostrated upon the sidewalk, and was of course an actual obstruction to travel, a disgusting and offensive spectacle, and the situation was calculated to attract a curious crowd. Com. v. Cheney, 141 Mass. 102, was a case of like character.

In O’Connor v. Bucklin, 59 N. H. 589, the arrest was made under a statute providing that any officer, upon view of any crime or breach of the peace, or offense against the police, might arrest without warrant; but it does not appear just what the offense charged was. In Wiltse v. Holt, 95 Ind. 469, Wahl v. Walton, 30 Minn. 506, and Taaffe v. Slevin, 11 Mo. App. 507, there had been an actual breach of the peace.

Bouvier defines a breach of the peace as a violation of public order; an act of public indecorum. In People v. Johnson, 86 Mich. 175, a breach of the peace was defined as a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace; and it was held that to be intoxicated and yelling on the public streets, in such a manner as to disturb the good order and tranquillity of the village, is an act of open violence, and a breach of the peace, which, if committed in the presence of an officer, will justify an arrest without warrant. In Davis v. Burgess, 54 Mich. 514, it was held, that the use of grossly indecent and profane language towards another upon the public street, and in the presence of others, is a breach of the peace.

In White v. Kent, 11 Ohio St. 550, the ordinance prohibited sales at auction in the public streets. The court held that the care, supervision, and control of the streets were committed to the municipality; that it was the duty of the city to secure to the public the unobstructed use of the streets, and thus promote the order, comfort, and convenience of the inhabitants; and that whatever unnecessarily and unreasonably interfered with the primary and appropriate use of the street was a nuiaance.

The cases of Jones v. Root, 6 Gray, 435, and Mason v. Lothrop, 7 Id. 354, involve the precise question which was disposed of by this Court in Robison v. Miner, supra.

Roberts v. State, 14 Mo. 138, was an arrest for vagrancy, as defined by a municipal ordinance. But that case is clearly opposed to Way’s Case, 41 Mich. 299. In that case, vagrancy was distinguished from disorderly conduct and breaches of the peace, and it was held that its statutory definition could not be enlarged by municipal ordinance. And, with respect to the main question, Mr.

Justice Campbell says:

“It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases 'where the public security requires it; and this has only been recogn’ized in felony, and in breaches of the peace committed in presence of the officer. Quinn v. Heisel, 40 Mich. 576; Drennan v. People, 10 Id. 169. It could not have been contemplated — inasmuch as we are bound to suppose the Legislature intended .to respect constitutional safeguards— that the station-house sessions would have occasion to deal with many cases of misdemeanors, nor with any when an arrest could be safely postponed. The occasions which would justify arrest without process must be very rare indeed in cases of vagrancy; and, in a city no larger than Detroit, persons charged with disorderly conduct can very generally be dealt with more legally and justly ip. the regular way, inasmuch as very much of it involves no immediate danger to public or private security.”

It seems to me that what is meant by the term “due process of law,” as employed in the Constitution, is not only well settled by this Court, but that its signification has been arrived at by the proper recognition of a well-recognized rule of constitutional interpretation.

Long, J., concurred with McGrath, C. J. 
      
       Charter, 1891, p. 60; Local Acts of 1885, p. 88.
     