Vol,. 34] MAY TEIIM, 1879. 105 Trammell vs. Town,of Russellville et al. .. TRA 30fET.I. VS. TowN OF RtssELLVILLt et al.• . . . 1. CITIES AND TOWNS : Liability for :injuries to inclividudis. EhPreing illegal ordingnces.. Fr Or acts done by' them ' in their public capacity, and in- discharge,of.,their duties to the' public c'ities and towns incur no liability to persons.WhO may be injured by them. Neither for the act of the council in passing an illegal ordinan&. nem fisr that of the. mayor in issuing a warrant of arrest for its vkilation. ricjr for that of the marshal in arreSting the offender under, it; is k,toWn liable to him. . 2. JUDGE : Liability for judiciaj acts. One acting judicially in , a nmtter within the Scope of his jprisdktion; is not liable in an action for his conduct. • 3. JURISDICTION I Vhat it is. The power to hear and determine a cause, is jurisdiction.
106 SUPREME COURT OF ARKANSAS, [VoL. 31 Trammell vs. Town of Russellville et al. 4. DAMAGES : Officer protected by fair process. Process fair on its face, though not in all respects regular, will protect from liability the officer executing it. APPEAL from Pope Circuit Court. Hon. W. W. MANSFIELD, Circuit Judge. Bice & Bishop, for appellant. HARRISON, J. This was an action by the appellant against the town of Russellville, J. B. Ewin, C C. Luker and James M. Luker, for false imprisonment. The complaint alleged: That the defendants, on the fifth day of February, 1877, maliciously, and without probable cause, arrested, and, against his will, imprisoned and restrained the plaintiff of his liberty until the sixth day of said month; and that they again, on the sixth day of Feb-ruary, 1877, arrested, and, against his will, imprisoned and restrained him of his liberty until the tenth day of. said month, to his damage $1,500. The defendant Ewin filed a separate answer, and, in justification of the arrests of the plaintiff, averred that he was mayor of said town of Russellville; that the council of said town had passed an ordinance declaring all dealers in spirituous, vinous or malt liquors, in q uantities less than five gallons, in said town, to. be retail liquor dealers, and assessing a tax on each of $300 per annum, to be paid before commencing or continuing the business, and for every violation of the ordinance by keeping open the saloon, store or place of business, for the purpose of selling without having paid the tax, it imposed a tax of $15 for every day the 'saloon, store or place of busiuess, should be kept open; that his co-defendant James M. Luker, who was at the time a deputy marshal of the town, on the fifth day of Febru-
Vox,. 34] MAY TERM, 1879. 107 Trammell vs. Town of Russellville et al. ary, 1877, filed with bim, as such mayor, an affidavit, charging plaintiff with a. violation of the ordinance, and asked .a warrant for his arrest on said charge, which he isSned, and the plaintiff was thereon arrested and brought baore him for trial by said deputy marshal, which was the arrest and imprisonment . first mentioned in the complaint; that the plaintiff not being ready for trial, the case was, at his request, continued until the next, day, and he was, upon his promise to appear for trial, discharged from the arrest; and that, on the next day, , he appeared and the case was tried, mid the violation of the ordinance being proved, he was fined, from which judgment he took an appeal to the circuit court. That afterwards, on the same day, the sixth day of Feb-ruary, 1877, his co-defendant C. C. Luker, who was at the time marshal of the town, filed an affidavit with him charging the plaintiff with another violation of said ordinance, .and asking a :warrant thereon for his arrest . , which was issued, and the plaintiff was again arrested 'and brought before him by said marshal, which was the arrest and imprisonment last mentioned in the complaint.; and the plaintiff not being ready for trial, -the case was, at his request, continued until a future day, and he was, upon his promise to appear for trial, discharged from the arrest; and that the enforcement of the ordinance being enjoined by the order of the judge of the circuit court, the last case had never been tried; and he denied that the, arrests were malicious or without probable cause.. The answer of the town and that of the other two defendants were a general denial that they had unlawfully, maliciously and without probable cause, arrested and imprisoned the plaintiff. The yerdict was for the defendants.
108 , SUPREME. COURT OF ARKANSAS, . 34 Tramniell vs. Town of , Russellville et al. • .There Was no material conflict • in•the evidence,- and the -facthiproven- were. as stated in the answer ' of Ewin. was upon the trial, conceded that. .the . town Couneadhad..:no.• :atithority-Ao -pass •such an Ordinance, and that' the . saine wa óid, as;was held.. in regard . to • a • siMilar ordinance;.in Tuck T own at 'TV aldron; 31, A•rk., 462. Municipal corporations.. are:.created •by the state for -political objects, and • invested :;witho . a. Portion of -:-.governinental • Tower,. to •be- exerCised- fot 4 ,1661 purposes . connected with. • the public' good. "They , possess, 'according. to . many courts," says Judge Dillon,' "a double character; • • the.. one go vern-mental, legislative .or public ; .the other, in a sense, proprietary or private. The distinction between them," he continues, 'though: sometimes difficult to trace, is highly important, and is frequently referred to,- particularly in the • cases relating to the implied or common law liability Of municipal corporations for the negligence of their servants, agents or officers in the execution of corporate duties and powers. On this distinction, indeed,. rest'S the doctrine of such implied liability. In its governmental or public character, the corporation is made: by the state 'one of its instruments,- or the local depository Of certain limited ;and prescribed political powers, to be exercised for ; the public good ,on behalf of the 'state, and not for itself." Dillon on Municipal C orpora-tions, 39. For acts done by them in their public capacity, and in discharge of the duties imposed upon them for• the -public benefit, cities and towns incur no liability to persons who • may be affected or injured by them. • ' The doctrine is thus ' stated by the court of• appeals of .Maryland : • "With regard to the .liability of a public municipd . - corporation for the acts of its officers, the - distinction is be-
VoL. 341 MAY TERM, 1879. 109 Trammell vs. Town of Russellville et al. tween an exercise of those legislative powers ' which it bolds for public purposes, and as part of the government of country, and \ those private franchises , which belong to it as a creation of the law.' Within the sphere of the former, it enjoys the exemption of the government :from' responsibilities ' for its own acts and for the acts of those who are : indepeni. dent corporate officers, deriving their rights and duties from the sovereign power." Commissiaters v. Duckett,: 20 21(d., 476. . 'Then, for neither' , the act of the: CoUncil 'in - passing the ordinance, .the , acts of the Mayor in issuing the warrants, ',nor those of ihe marshal and his: deputy in . making the arreStswas the.town liable to the plaintiff. It is a uniVersally recognized . .principle, 'that one acting .judicially in . a 'Matter within the- scope of hiS jurisdiction, is • not liable action for his conduct . .. Judge Cooley •says.: "Whenever • the state confers judicial powers upon an indiVidual it confers . them with full immunity from :private suit. .-In' 'effect,. 'the , state says to - ,the: officer, chat those dutieS - are confided to hiS judgment; that he is to exercise his judgrnent, fully, freelY, and- without favor, and he , may exercise it Without fear; that • Ahe duties cOneern individ-tialS, but they Concern more especially the welfare of ‘the 'state. .and the peace . and happiness of soCiety; that if he , shall fail ' in a faithful diScharge • of them, he shall be called to account' as a criminal; but 'that in order that he may not be. annOYed, disturbed, , and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question 'his official action in , a suit for damdgeS. .'This :is What the state,. speaking by the 'mouth of the common law; says to the judicial officer.". 't'Ooley on. Torts, 408. That in issuing the warrants the mayor acted in a judi-
110 SUPREME COURT OF ARKANSAS, [Vor... 34 Trammell vs. Town of Russellville et al. cial capacity, will not be questioned; and we think it is equally clear, within the scope of his jurisdiction. The enforcement of the ordinances of the town was a duty imposed upon him by the statute, and the validity of the ordinance was a question he had the unquestionable power to pass upon. "The power -CO hear and determine a cause is jurisdiction ; it is coram, judice, whenever a case is presented which brings this power into action." United States v. Arredondo, 6 Pet., 709. "A court has jurisdiction of any subject-matter if by the law of its organization it has authority to take cognizance, try And determine. cases of that. description." Cooley on Con. Limitations, 398. Did the warrants protect the -marshal and his deputy in making the arrest? It is established doctrine that process fair on its face will protect from liability the officer executing it. It is not meant that it shall in all respects be regular; but that it shall appear to have been lawfully issued, and such as the officer might lawfully serve. "That process may be said to be fair on its face which proceeds from a court or magistrate, or body having authority by law to issue process of that nature, and which is legal in form and on its face contains nothing to notify or fairly apprise the • officer that it issued without authority. When such appears to be the process the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it." Cooley on Torts, 459; 2 Hill, on Torts, 184. That the marshal and his deputy were protected from liability by the Warrants, we think is clear. The judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.