The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-06-20

An important opinion delivered BY
the supreme court yesterday was il
the case of Guy c. Royce VS.. Salt Lake
City, appellant, in which the judgment
OF the lower court is reversed and q
new trial ordered. The opinion was
delivered by Justice Miner and con-
CURED in by Chief Justice Zane and
Justice Bartch. At the conclusion the
opinion says the court erred in refus-
ing to grant the non-suit asked by tbs
, defendant and in refusing to give the
defendants request to return a YER
dict for the defendant
The plaintiff was arrested by a police
otiicer for vagrancy and he was con-
victed without any written complaint
being filed against him and sentenced
to Imprisonment in the city iail for 60
days. While serving his sentence he
was put TO work on the rock pile and
while so engaged was injured by being
struck in the eye by a piece of rock
broken by fellow prisoner, which in
jury caused the loss of the sight of his
eye. The action was brought to re-
cover damages for wrongfully COM
pelling plaintiff to perform work
whereby he was injured and for fail
ing TO supply him with a proper face
guard. He obtained a verdict in the
district court for 800 from which this
| appeal was taken.
The appellant contended that the
conviction and Imprisonment of the
Plaintiff was illegal; that the act of
| the chief of police in requiring the
plaintiff TO work was illegal and wrong
full, that the city is not liable for the
ultra wires acts of its officers and ser
wants even though attempted to be
authorized by the city in a resolution
passed by the city council; that the
city could not ratify a void act and is
not liable for the unlawful acts of its
officers and agents.
SUMMARY OF THE OPINION.
The opinion goes on to state that
section 1905, c. L. u. 1855 contemplates
that written complaint on oath, shall
be filed, except in specific cases and
then a sworn complaint must be i'm
mediately filed with the magistrate or
an accusation made and entered in the
minutes of the court, specifying the
charge against any person arrested for
an offense.
Section $3.50. C. L. u, 1883. requires
that a certified copy of the judgment or
an order of commitment shall be deliv-
cred to the proper officer after judgment,
as a warrant for the execution OF the
judgment. These requirements of the
statute were not complied with.
The plaintiff was sentenced to 60 days
Imprisonment. There is no provision In
our statute. under such a sentence
whereby he could be compelled to work
or labor To require work from him I'M
der such circumstances would be in eff
feet the imposition of an additional sem
tence by the police officers, over and
above the sentence imposed by the po-
lice magistrate. The city ordinances
were not pleaded or placed in evidence,
and therefore cannot be considered.
Estee's Pleading, section 49,
Shawfelter VS.. mayor of Baltimore, q
L. II. A 64S-
% Pac. Rep. SO.
1t therefore appears that the plaintiff
was wrongfully and illegally imprisoned, |
and that he was wrongfully and illegally
required to work breaking rock at the
time ne received the injuries complained
of. and these Illegal acts We're done and !
authorized by the chief sof police. acting |
as city marshal and jailer of the city !!
and three guards appointed to watch |
over the prisoner.
To create liability on the part of the |
city it is necessary that the act done |
which was injurious to the plaintiff was |
within the scope of the corporate pow
ers of the city as prescribed by its char
ter. That IS. the act must not have been /
ultra wires in the sense that it was not
within the power or authority of the I
corporation to act with reference TO it.
If such act complained of was wholly /
outside of the general or special power
of the corporation as conferred by stat
ute, the corporation cannot be made La
BILE to an action for damages. whether il
commanded and directed the act to be
done or whether il was done by its Off
GERS without its direction. for no munip-
ipal corporation can be implicitly liable to
a greater extent than it could make it
self by express corporate action. .
When the city council passed the res
olution directing the city marshal TO en-
ploy city prisoners on such work as in
his judgment would be for the best in
terests of the city. they gave no direc-
tons to the marshal TO require work
from those in jail who were not prison
ers. prisoner is person deprived of
his liberty by virtue of a judicial or
other lawful process. Nor did the reso-
luton require the marshal to compel
prisoners to work who were not sen
fenced to hard labor and therefore could
not be required to work. The resolution
did not direct the chief of police or mar
shall to do an illegal act The jailer had
no mittimus with which TO retain the
plaintiff. The law has not vested police ,
nj gistrates and policemen with power TO
arrest and imDrison men at pleasure,
without complaint, warrant or commit
nent. except as provided by law. The
liberty of a citizen cannot be so far dis
regarded and trifled with that any 20
iceman or jailer may, at his own vol
ion, commit and mold him in custody | {
md compel him to work until II suits {
heir convenience 10 release him. The :
constitution of this state prohibits such )
lets. except by due process Of law The !
liberties of the people depend upon a | I
mere will and pleasure of such officers.
All legal imprisonment arises from the /
entence and act of law, and such i'm
,risonment must be reached through
uch proceedings rs the law directs.
The chief Of police had no authority to
eoure the plaintiff 70 break stone any :
more than he had authority 10 impose I
m additional sentence upon him, or 10 L
equire the same work from total c
The authority given by the city re- !.
erred only to those legally imprisoned -
nder legal sentence 10 hard labor. and |
10 others. The plaintiff was not a pris +
ne- meant or referred to by the order.
The chief of police and jailer in i'm
risoning the plaintiff and in requiring
i'm TO work breaking stone al the time
e was injured. were acting ultra wires. a
hey were not acting as the agents of :.
he city government. but were mere tres :,
assers, acting without authority. and =
utside of any general or Special author L
v or power of the corpora ton as con- p
erred by its charter. and the corpora
ion is not liable TO the action for dam IT
ues although the officers, the authors
the injury, may be liable therefor '
Saunders VS.. Southern Pacific. il
An opinion was also handed down by |,
ne supreme court in the case Of Phil fl
nder V. Saunders vs.. the Southern f,
acific company, appellant. written by f
,stice Rartch and coucurred in by q