
    Reinhard v. City.
    
      Illegal arrest — Burden of proof — Receiving money in lieu of bail— Involuntary payment.
    
    1. It is illegal, unless authorized by statute, for a police officer or magistrate, to receive money in lieu of bail for the appearance of a person accused of a criminal offense.
    2. A police officer arrested a person for an alleged misdemeanor under a state law, before any charge had been preferred against him or warrant had been issued for his apprehension; and demanded from him, while tinder arrest, a deposit of money in lieu of bail for his appearance before the mayor, which deposit was made by the person arrested, to avoid imprisonment. The money was paid into the city treasury, and afterwards, the city by its promissory note, paid the same to the county; but while the money was in the hands of the city, the party who was arrested demanded of the city that it pay over the same to him, which the city refused to do. In an action against the city by the party arrested, to recover the money, in which the legality of his arrest became a material issue, it was incumbent on the defendant, to show, that such a state of facts existed as justified the officer in making the arrest without the previous issue of a warrant, and that he did not detain the party arrested an unreasonable time before obtaining a legal warrant.
    3. Unless established by satisfactory evidence that the circumstances were such as to authorize the officer to make the arrest without the previous issue of a warrant, the payment of the money by the party arrested as a substitute for bail for his apperance, and to avoid imprisonment, is to be deemed an involuntary pay ■ ment, and the sum so paid may be recovered by him in an action against the city, as money by it had and received for the use of the plaintiff.
    (Decided March 10, 1892.)
    
      ERROR to the Circuit Court of Franklin county.
    The plaintiff in error, John G. Reinhard, on October 31, 1882, filed his petition in the court of common pleas which reads as follows:
    “The plaintiff says that the defendant, the city of Columbus, Ohio, is a city of the first grade of the second class, and is duly incorporated under the laws of said state. That on or about the thirty-first day of December, A. D., 1879, the said defendant unlawfully and wrongfully received into its possession two hundred dollars in money, property of this plaintiff, of the value of two hundred dollars, and on or about the Same date, without the consent of plaintiff, converted the said money to its own use.
    Plaintiff demanded of said defendant said sum of money on or about the second day of January, A. D., 1880, and the said defendant then, and has ever since then, refused to deliver the same t® this plaintiff.
    Wherefore, plaintiff has been damaged by reason of the premises by said defendant in the sum of two hundred dollars, with interest thereon from said thirty-first day of December, A. D., 1879, for which, together with his costs herein expended, plaintiff asks a judgment against said defendant.”
    On December 16, 1882, the defendant in error, the city of Columbus, filed the following answer to the petition:
    “The defendant, for answer to the petition of the plaintiff herein filed, says:
    
      First Defense — It denies that it unlawfully received the money in the petition mentioned, or unlawfully converted the same to its own use.
    The defendant says further, that the plaintiff and another person were, on or about the thirtieth day of December, A. D., 1879, arrested by the police authorities of said city, charged with an offense against the laws of the state of Ohio, whereupon, on said day, the plaintiff deposited the sum of one hundred dollars for himself and a like sum for his companion, with said police authorities, as bail for their appearance respectively, on December 31, 1879, before the mayor of said city, to answer said charge, failing in which, the money so deposited was by said mayor declared forfeited, and the same, less costs, retained by said mayor, amounting to $5.20, and leaving $194.80, was by said mayor, deposited in the treasur}*' of said city.
    
      Second Defense — For its second defense the defendant says: It adopts each and áll the allegations of its first defense herein, and makes the same -a -part of this, its second defense, the same as if here again alleged and bodily set out, and that on or about the sixth day of December, A. D., 1881, and before the bringing of this action, before the magistrate, it was compelled to, and did, by its promissory note of that date, pay said sum of $194.80 so received from the plaintiff and deposited in the treasury of said city, to the county of Franklin in said state, the same having been by the mayor of said city received as bail in a prosecution under the laws of said state, and not under the ordinances of said city of Columbus.
    “Wherefore, the defendant prays that it may go hence without day, and recover of the plaintiff its costs in this behalf expended.”
    On January 26, 1886, the plaintiff filed his reply, in the following words:
    “The plaintiff now comes and for his reply to the answer to the defendant herein filed, says: For his reply to the first defense set forth in said answer, that he admits, that on the 30th day of December, A. D., 1879, he and another person who accompanied him, were arrested by the police authorities of the city of Columbus; but he 'denies that at the time of said arrest -he and his companion were charged with the violation of the laws of the state of Ohio, or any law -thereof, but on the contrary, this plaintiff avers, that he and his companion were' arrested without a warrant having been issued therefor -by said police authorities, on the day aforesaid, and taken to the city prison of said city, and there the police authorities demanded of this plaintiff a deposit ot the sum ot two hund ed dollars as bail for the appearance of this plaintiff and his companion before the mayor of said city on the following morning, to answer to some pretended violation of the laws of Ohio, which had not at that time been preferred against either this plaintiff and his companion, or both of them, and in default of payment of which sum of money by plaintiff the said police authorities ordered both this plaintiff and his companion to be imprisoned within the city prison of said city until the said next morning. Whereupon, in order to prevent the said imprisonment of this plaintiff and his companion, plaintiff avers that he was compelled to deposit, and did deposit, with the the said police authorities, said sum of money as aforesaid.
    “Plaintiff avers that on the following morning, to-wit: December 31, 1879, in his absence, the said mayor caused to be filed before him an affidavit charging this plaintiff and his companion with the violation of a -state law, falling within the class of offenses known as misdemeanors, within said state. And thereupon in his absence, and immediately after said affidavit was sworn to before the said mayor, said mayor declared the said sum of two hundred dollars so deposited with said police authorities, as aforesaid, forfeited unto the city of Columbus. All of which was done in his absence and without his knowledge and consent, and plaintiff further avers that said affidavit was never read to him until after said forfeiture, and he never was arraigned and required to plead to the matters therein charged against him, which were wholly false and untrue, and he was never given an opportunity to defend against the charge therein contained, nor was there ever a hearing or trial had upon the matters and things charged therein.
    “Plaintiff avers, that upon the following day, January j., 1880, he first learned of the action taken aforesaid by the said mayor upon said affidavit, and in and about the filing of the same, and the pretended forfeiture of this plaintiff’s said money, and on the following day, January 2, 1880, he went to said mayor and requested him to set aside the said forfeiture of said money unto said city of Columbus, and to give to him a hearing upon said affidavit, all of which the said mayor declined to do.
    “ Plaintiff thereupon, on the same day, while said money was in the hands of said city, to-wit: on January 2, 1880, demanded of the said city said money, and requested it to pay the same over to him, which it then and ever since then has refused to do, and since which time plaintiff has never relinquished his claim to said money, and at which time he notified the said city that he would bring an action against it for the recovery of said sum of money.
    “ For his reply to the second defense, plaintiff avers, that the said city of Columbus had no power or authority to execute to the said county of Franklin, the pretended note therein mentioned, and at the time therein mentioned, or at any other time, and if it did execute such a note to said county the same was without authority, illegal, null and void.
    “And if the said city of Columbus ever did execute to said county said promissory note, it was long after plaintiff 'had demanded the payment to.him of said money, as averred in his reply to the first defense, which said aver-ments are here adopted as a part of this reply to the second defence, the same as is herein written.
    “Wherefore, by reason of the premises, plaintiff avers that the said defendant did unlawfully and illegally receive into his possession said sum of $200, on December 31, 1879, and did on the same day unlawfully and illegally convert the same to its own use, as averred in his petition, and plaintiff here renews his prayer as contained in his petition for judgment against the defendant.” -
    The city of Columbus demurred to this reply. The court of common pleas sustained the demurrer, and (the plaintiff not desiring to plead further') ordered and adjudged that the cause be dismissed. The circuit court affirmed the judgment of the court of common" pleas, and the plaintiff in error asks this court to reverse the judgments of the circuit and common pleas courts.
    
      Marriott & Hughes, for plantiff in error.
    The reply does not show whether the parties were found in the act of committing an offense, or whether the officer making said arrest acted upon information alone.
    Outside of the record we will state that he acted upon information alone. But in either case it may be that the arrest would be held legal under sec. 7129, of the Revised Statutes, and Ballard v. The State, 43 Ohio St., 340. If, however, the arrest was legal, all of the subsequent steps were without authority, illegal, and void.
    Granting that a police officer may, under said section, make an arrest without a warrant, upon information, for the violation of a state law, what further authority has he in the premises and what must he do with the prisoner?
    Simply detain him until a legal warrant can be obtained. See secs. 7130, 7131, et seq.
    
    No authority is given him anywhere to either imprison the accused or to let him to bail, If the arrest be made upon warrant it is the duty of the officer to take his prisoner immediately before some magistrate of the county to be dealt with according to law. Revised Statutes, sec. 7139 •and 7142.
    The only statute authorizing a police officer to take bail is in case of arrests for violation of a city ordinance. Sec. 1965, Revised Statutes.
    But where the offence charged is the violation of a- state law, there is no power or authority in the officer making arrest to either let to bail or imprison, but Ue must take the accused before some magistrate of the county where the alleged crime was committed for a preliminary hearing; and there is no authority for the officer making the arrest to demand a deposit of money with him or anyone else for the appearance of the arrested party to appear before a magistrate to answer some charge to be preferred at some future time.
    The only instance in which bail is authorized to be given, before indictment, is after the prisoner is taken before a magistrate for preliminary, hearing and an adjourment is found necessary. In such case the magistrate may take bail for the appearance of the accused upon the day of trial. That such bail cannot be a deposit of money in lieu of a recognizance, is decided in the Dumick Case, 41 Oliio St., 602. See also, Shamokin Bank v. Street, 16 Ohio St., 1; Blackstone’s Com. vol. 4, 247; Butler v. Foster, 14 Ala., 323; United States v. Fow, 1 Cranch, U. S. C. Ct., 486.
    
      As we have said, after the arrest, if that can be held to have been legal, the subsequent preceedings were all illegal and void. The threatenend imprisonment was illegal. The demand for a deposit of money was illegal, and the reciept thereof was illegal. The forfeiture of the money to the city by the mayor was illegal. Then how could the city accquire any right thereto whatever as against the plaintiff who never relinquished his claim to the same.
    The parties after being arrested without warrant, upon imformation, should have been detained until a legal warrant could have been obtained, and then taken before a magistrate for preliminary trial. Until. this~ was done, there was no authority in any person to take bail of any character.
    Here then is a case where, we repeat, there was not a voluntary payment of an illegal demand, but a compulsory payment of an illegal demand .in order to prevent the imprisonment of the person of plaintiff and said other person.
    Under such a state of facts, does the plaintiff lose the right to recover back his money ?
    The law seems to be clear upon this subject that he does not, Butlers. Foster, 14 Ala., 323; Myers v. Cincinnati, 1 Ohio St., 268; Baker yr. Cincinnati, 11 Ohio St., 537; Carter v. Waterson, 38 Ohio St., 319; United States v. Faw, 1 Cranch, U: S. C. Ct., 486; Boling v. Young, 88 Ohio St., 140' Stephana. Daniels, 27 Ohio St.,'527; Telegraph Co.sr. Myer, 28 Ohio St., 521; Wolfsr. Marshal, 52 Mo., 167; Wabannsee Co. v. Walker, 8 -Kan. 431; Eaton, v. Eaton, 35 N. J. Raw, 290; 3 Abb. Ct. App. (N. Y.) 10; Beckwithsr. Frisbie, 32 Vt., 559; Harmony v. Binham, 12 N. Y. (2 ICem.) 99," 68 N. C. 134,- 12 Am. Rep., 627; 25 Mich., 456; 56 Ill. 542; 27 Mich., 497; Chandler v. Sanger, 114 Mass., 364; 19 Am. Rep. 367; 61 Me. 227; 12 Am. Rep. 556; 70 N. C. 55; 37 Tex. 47; 60 Barb. 80; Durr v. Howard, 6 Ark., 461; Maxwell v. Griswold, 10 How. JU. S.) 242; White si.Hezlman, 34 Penn. St., 142. ’ :
    
      Paul Jones and Florizel Smith, city solicitors, and James Caren, for defendant in error
    
      I. The deposit of money by the plaintiff in error in lieu of bail for his appearance in police court was, upon the release of the plaintiff and his companion, the execution of an illegal contract voluntarily entered into by the plaintiff.
    The transaction at the prison was certainly illegal. The payment by Reinhard was purely voluntary as far as the reply reveals — and for many reasons.
    Reinhard chose his own remedy. He did not choose an immediate trial; he did not choose to ask his friends to enter into a recognizance; he did not choose false imprisonment with his right for action for damages therefor; he did not choose to avail himself of the efficacy of the writ of habeas corpus; but he did choose to make the deposit in lieu of bail. His reason for choice were his own and doubtless good, and his reason in not explaining them in his reply was also doubtless good.
    The conclusion reached is that Reinhard and the police authorities entered into a contract for the appearance of himself and a stranger in court that was illegal because of the provisions of the statues regulating the duties of police authorities in such matters and- void as against public policy. Roll v. Raguet, 4 Ohio St., 400.
    II. The police authorities are not the officers or agents of the city, and the city is not liable for any of their unlawful acts, and, hence, cannot be held to answer for the illegal demand by such authorities of money to be deposited in lieu of bail and its subsequent forfeiture by such authorities. Especially so when the arrest was for an offence against the state and not a violation of any of the ordinances of the city, and the city has not appropriated to its own use the money so forfeited. Dillon, Municipal Corporations, sec. 974, 4th ed.; Burch v. Hardwicke, 30 Gratt., 38; Calwell v. City of Boone, 51 la., 687; Buttrick v. City of Lowell, 1 Allen (Mass.) 172; Ogg v. Lansing, 35 la., 495; Stedman v. City and County of San Francisco, 63 Cal., 193; Burough-of Norristown v. Fitzpatrick, 94 Pa. St., 121; Prother v. City of Lexington, 13 B. Mon. (Ky.) 559; Worley v.. Town of Columbia, 88 Mo., 106; Pollock's Admr. v. Louisville, 13 Bush. 221; Cook v. Macon, 54 Ga., 468; Harris v. 
      City of Atlanta, 62 Ga., 290; McElroy v. Council of Albany,, 65 Ga., 387; Attaway v. Cartersyille, 68 Ga., 740; Ready v. Tuskaloosa, 6 Ala., 327; Dargan v. Mobile, 31 Ala., 469; Richmond v. Long's Admr., 17 Gratt. 375; Greenwood v. Louisville, 13 Bush., 226; Western College v. Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19.
   Dickman, J.

It is manifest from the record that the plaintiff in error and his companion were arrested without the previous issue of a warrant. The arrest was to answer an imputed violation of a state law falling within the class of offences known as misdemeanors, for which, at that time, no charge had been preferred against either of them.

The 21st section of the criminal code (66 Ohio R. 291)' provided: “Every sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman or police officer, shall arrest and detain any persons found violating any law of this state,, or any legal ordinance of any city or incorporated village, until a legal warrant can be obtained.”

And section 142 of the municipal code (66 Ohio R. 173) provided that the city marshal “shall arrest any person in the act of committing any offense against the laws of the state or the ordinances of thfe corporation, and forthwith bring such person before the mayor, or other competent authority for examination or trial.”

By these two sections statutory power is conferred upon the officers named to arrest without warrant, and to detain for a limited time, to the end that there may not be a failure of justice through the escape of criminals. But the officer, if not armed with a warrant, has no authority to arrest unless the persons are “found violating,” or, are “in the act of committing an offense against” a law of the state or an ordinance of a city or incorporated village.

The record does not disclose that the plaintiff and his companion were “found violating,” or, “in the act of committing an offense against” any law or ordinance, or that the officer in making the arrest acted upon knowledge, or reliable information which proved to be true. Ballard v. State, 43 Ohio St. 340. Where no affidavit charging the commission of an offense is filed with the magistrate, and no warrant or process is issued for the apprehension of the person charged, it will not be presumed, that an officer making an arrest acted under circumstances precluding the necessity of an affidavit and warrant. And in an action by the party arrested, in which the legality of such arrest is deemed a material issue in the case, it will not be incumbent upon him to establish that the officer was not, under the circumstances, authorized to arrest without warrant, but it will rather devolve upon those defending the officer to show, that such a state of facts existed as justified the officer in making the arrest without the previous issue of a warrant and that he did not detain the arrested party an unreasonable length of time before obtaining a legal warrant.

In Shanley v. Wells, 71 Ill. 78, which was an action of trespass, for false imprisonment, it was held that, where a policeman arrests a party as a vagrant, under a city ordinance, without a warrant, it is incumbent on him, when sued in trespass therefor, to show that the offence was in fact committed in his presence; that the burden will be on him to establish that fact by satisfactory evidence, to exonerate himself from liability.

In Gallimore v. Ammerman et al., 39 Ind. 323, the complaint charged that the defendants, one a justice of the peace and the other a marshal of the town, jointly acting, assaulted the plaintiff, and by force compelled him to go from the place where he was, to a shanty, where they imprisoned him, and detained him as a prisoner therein for .the space, of seventeen hours against his will. The complaint did not contain an allegation that the acts of the defendants were done .illegally, or wrongfully, or without any competent authority. “In our opinion,” said the court, “no such allegation was necessary. The facts alleged, on being proved, would entitle the plaintiff, prima facie, to recover; and absolutely, unless it should be shown that the acts were' rendered rightful and legal by some competent excuse or authority. Such excuse or authority must come from the defendant. Whoever assaults or imprisons another must justify bimself by showing specially to the court that the act was lawful. 1 Chit. PI. 501.”.

Applying the rule as recognized in the above cited cases, it cannot be presumed, in view of the allegations in the defendant’s answer and in the reply to which the defendant demurred, that the plaintiff and his companion were legally arrested by the police authorities.

While under, arrest, the police authorities demanded of the plaintiff a deposit of the sum of two hundred dollars in place of bail for the appearance of himself and his companion before the mayor on the following morning; and ordered that in default of the plaintiff making such deposit of money, both of the parties under arrest should be imprisoned. To prevent such imprisonment, the plaintiff paid the sum of money demanded. It was the duty of the police authorities to detain the arrested parties until a legal warrant could be obtained; or until they entered into a recognizance according to law for their appearance before the proper magistrate. But, they had no authority to accept money in lieu of bail, nor would the mayor have been so authorized, as the statutes of Ohio contain no provision for taking money as a substitute. Bail may be defined as a delivery of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance; he being supposed to continue in their friendly custody, instead of going to jail. To say nothing of its liability to abuse, the deposit of money with the officer, as security lor the appearance of the accused, would not be so likely to secure the end proposed as that provided by the statute.

In Butler v. Foster, 14 Ala. 323, it was held that, a judicial officer, authorized to receive bail for the appearance of persons charged with criminal offenses, cannot receive from the accused, a sum of money in lieu of, or as substitute for bail, no such power being conferred by statute; and if so paid in, neither the state, nor the county, has any claim to it. See also Columbus v. Dunnick, 41 Ohio St, 602. State v. Lazarre, 12 La. Ann. 166; United States v. Faw, 1 Cranch C. C. 486.

The money demanded from the plaintiff in lieu of bail was an illegal exaction, and though declared forfeited to the city upon his failure to appear before the mayor on the morning after his arrest, and deposited in the city treasury, was nevertheless the property of the plaintiff, and was money had and received by the city for his use, if involuntarily paid by him to prevent his imprisonment. While the money was in the hands of the city — before the city had, by its promisory note, paid the money to the county, as having been received as bail in a prosecution under the laws of the state — the plaintiff demanded the same of the city, and requested its payment over to him, and upon payment being refused, gave the city notice that he would bring an action against it for the recovery of the money detained. The city, therefore, in obligating itself to the county, did so with full knowledge of the plaintiff’s claim.

-But it is contended that a deposit of money by the plaintiff as a substitute for bail, was, upon the release of himself and hi's companion, the execution of an illegal contract voluntarily entered into by the plaintiff, and that in such case a court of justice will leave the parties as.it finds them. The facts, as made evident in the pleadings, are sufficient to negative the idea of a voluntary deposit by the plaintiff. It is averred and not denied, that without the issue of a warrant — no affidavit charging the commission of an offence having been filed with a magistrate — the plaintiff and his companion were arrested, taken to the city prison, and there the police authorities demanded a deposit of two hundred dollars asbail for their appearance in court, and ordered that in default of the payment of that sum, both be imprisoned until the following morning.

These salient facts attending the arrest, and the questionable legality of the arrest, are plainly inconsistent with free will or voluntary action, on the part of the plaintiff in making the money deposit in lieu of bail. Although the mor.ey was paid upon an illegal demand, with full cognizance of the unlawful character of the transaction, it was paid to avoid imprisonment upon an arrest of doubtful legality. The conclusion clearly deducible from many cases on the subject is, that a payment of money upon an illegal demand, when the party is advised of all the facts, will be considered involuntary when it is made to procure the release of the person or property of the party from detention; or, when the other party is armed with apparent authority to seize upon either, and the payment is made to prevent it. Wolfe v. Marshal, 52 Mo. 167, and -cases cited. The principle is well and briefly stated in 2 Greenl. Ev. § 121: “Under the count for money had and received, the plaintiff may also recover back money proved to have been obtained from him by duress, extortion, imposition, or taking any undue advantage of his situation, or otherwise involuntarily and wrongfully paid; as by demand of illegal fees or claims, tolls, duties, taxes, usury and the like, where goods or the person were detained until the money has been paid.”

In Norton v. Danvers, 7 Term 375, a defendant, on being informed that a bailable writ - had been issued against him, voluntarily gave a bail- bond, and it was held, that he could not afterwards object to the insufficiency of the affidavit to hold to bail. But Tord KENYON said: “The affidavit to hold to bail is only process to bring the party in, and if he choose to waive any objection to that, he may. do it; and in this case I think he has waived taking advantage of this objection. If indeed the defendant has been actually under arrest at the time, his consent to give a bail bond would not have been binding on him, because it might be considered as given under duress; but here he voluntarily gave this bail bond; and on that - ground only my opinion is founded.”

It is averred by the defendant that the plaintiff deposited with the police authorities the sum of one hundred dollars for himself and a like sum for his companion, as bail for their appearance respectively before the mayor of the city. It being conceded that the entire sum of two hundred dollars was the property of the plaintiff and by him advanced, the money, if wrongfully withheld by the city, must be treated as had and received by the city for his use only. The plaintiff alleges in his original petition that the city converted the money to its own use, but such conversion would not militate with the fact that the money had been received for the use of the plaintiff, and afterwards misapplied. As money had and received, one may recover back money paid under'an illegal contract, when he is not in pari delicto with the defendant. 1 Steph. N. P. 335-341; 1 Selw. N. P. 84-94; Worcester v. Eaton, 11 Mass. 376: Boardman v. Roe, 13 Mass 105; Wheaton v. Hibbard, 20 Johns. 290; Merwin v. Huntington, 2 Conn. 209. So, where the person' is arrested for improper purposes without just cause; or, for a just cause, but without lawful authority; or, for just cause and by lawful authority, but for an improper purpose; and pays money to obtain his discharge, it may be recovered as so much money had and received for the plaintiff’s use. Bull, N. P. 172, 173; 5 Com. Dig. Pleader, 2 W. 19; Richardson v. Duncan, 3. N. H. 508; Watkins v. Baird, 6 Mass. 506.

Our conclusion is, that the court of common pleas erred in sustaining the demurrer to the reply of the plaintiff, and that the judgments of the courts below should be reversed, and the cause remanded for further proceedings,

Judgment accordingly.  