94

fixing and inflicting punishment under an ordinance subsequently declared void,93 and in Wisconsin a judge of a court of limited jurisdiction is held not liable where he erroneously decides that a certain law confers jurisdiction to try a cause. A police judge has no jurisdiction or authority to commit a person, who is arrested by a city marshal simply on the strength of a telegram from another state, to jail, where there is no charge against him or warrant of any kind.95 Arrests made under such circumstances are wholly unauthorized. An action for false imprisonment will lie against a mayor who, without jurisdiction, causes to be arrested without a warrant a person charged with cruelty to animals, which is not committed in the presence of the officer.97 A court cannot confer jurisdiction by assuming it, nor can its determination that it has jurisdiction confer it.9

98

This matter having been gone into so fully under official liability, nothing further will be added here.

§ 229. Measure of Damages. If there is no malice, and although the person charged with the wrong of false imprisonment may have acted in good faith and in the honest belief that he was discharging his duty, compensatory damages may be allowed. If the arrest and imprisonment was malicious, then, following the usual rule, exemplary damages may be recov

93 Calhoun v. Little, 106 Ga. 336, 71 Am. St. Rep. 254, 32 S. E. 86.

94 Robertson v. Parker, 99 Wis. 652, 67 Am. St. Rep. 889, 75 N. W. 423.

95 Glazer v. Hubbard, 102 Ky. 68, 80 Am. St. Rep. 340, 42 S. W. 1114.

96 Simmons v. Van Dyke, 138 Ind. 380, 46 Am. St. Rep. 411, 37 N. E. 973.

97 State v. McDaniel, 78 Miss. 1, 84 Am. St. Rep. 618, 27 South. 994.

98 Kkumoto v. Marsh, 130 Cal. 66, 80 Am. St. Rep. 73, 62 Pac. 303, 509.

ered.99 Personal ill-will is not necessary to warrant the award of punitive damages, a wanton disregard of the rights of the person arrested being sufficient.100

II. RESTRAINT OF PERSONS FOR PEACE AND SECURITY OR HEALTH OF THE COMMUNITY.

§ 230. Wrongful Confinement in Asylum or Hospital. It will be conceded that the state has the right to restrain the freedom of persons whose physical condition is such as to endanger the public safety. It is incumbent upon the state to protect the public from dangerous lunatics. The state also occupies the relation of guardian of insane persons, and owes a duty of protection of its wards, as well as protection of the public. And though an insane person is harmless, the view is expressed that he may be confined because of the duty to care for him without rendering those concerned in his confinement liable for false imprisonment.101 It may be of the utmost importance in many cases that speedy aid should be afforded, even though no dangerous symptoms are manifest, and where delays would aggravate the case. "For purposes not designed for the care of the patient, imprisonment could not be justified probably without some danger." 102 In Massachusetts, however, it

is held that an officer is not authorized to arrest a man without a warrant, on the ground that he is insane, unless he is dangerous. 103 But in the case of a dan

99 Josselyn v. McAllister, 22 Mich. 300; Sorenson v. Dundas, 50 Wis. 335, 7 N. W. 259.

100 Pearce v. Needham, 37 Ill. App. 90.

101 Van Deusen v. Newcomer, 40 Mich. 90; Denny v. Tyler, 3 Allen, 225; Davis v. Merrill, 47 N. H. 208; Ayers v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338.

102 Van Deusen v. Newcomer, 40 Mich. 142.

103 Look v. Deen, 108 Mass. 116, 11 Am. Rep. 323; citing English cases, Anderson v. Burrows, 4 Car. & P. 210; Scott v. Wakem, 3 Fost. & F. 328.

gerously insane person the necessities of the case justify an arrest without a warrant. 104 It is contended that as in imprisonment for criminal acts, so in this class of cases the fundamental law protects those suspected of being in a dangerous condition, or those who require care, from being deprived of their liberty without "due process of law." This, it is held, entitles them to some sort of judicial investigation into their condition "in which the citizen has an opportunity to be heard and to defend, enforce, and protect his rights." 105 The judgment of a competent tribunal having jurisdiction is a protection for acts done thereunder, and no one would be permitted to show, however clearly it might be made to appear, that such judgment, standing unreversed, was erroneous.' The rule above stated does not go to the extent of rendering it improper to arrest and confine one who is violently insane, and whose presence is dangerous, nor make it necessary that such an insane person shall be in court," 107 but it does forbid a confinement without an examination and upon an ex parte affidavit.108 The investigation also must be as to the condition of the person at the time, and statutes providing for confinement of those acquitted from criminal charges as ground of insanity have been held unconstitutional because the insanity found was that existing at the time of the alleged criminal act, and not at the time of the investigation.109 To justify an arrest and con

104 Colby v. Jackson, 12 N. H. 526.

106

105 Stuart v. Palmer, 74 N. Y. 191, 30 Am. Rep. 289; State v. Billings, 55 Minn. 467, 43 Am. St. Rep. 525, 57 N. W. 206, 794, and valuable note, 43 Am. St. Rep. 531.

106 Van Deusen v. Newcomer, 40 Mich. 90, 113.

107 Chavannes v. Priestley, 80 Iowa, 316, 45 N. W. 766.

108 In re Jones, 30 How. Pr. 446; State v. Billings, 55 Minn. 467,

43 Am. St. Rep. 525, 57 N. W. 206, 794.

109 Underwood v. People, 32 Mich. 1, 20 Am. Rep. 633.

finement of a dangerously insane person by a person without a warrant, it is said that the one enforcing the confinement must justify himself by showing insanity, or a condition which legally warrants a confinement;' and the restraint must not be permanent but temporary, such as is preliminary to an institution of a proper investigation.111 There is a recog nized exception to this rule, the relatives of an insane person having a right without judicial examination to confine him.112

§ 231. Restraint of Persons with Contagious Disease. The state has the right to restrain the freedom of persons whose physical condition is such as to endanger the public safety or health. Thus, those who are affected with dangerous contagious diseases, such as smallpox, yellow fever, and the like, may be compelled to remain away from others who are not so affected, and prevented from mingling with the general public. These powers are usually conferred on health officers, and so long as they keep within their authority there is no liability for such confinement." 113 Quarantine may be established and persons retained in hospitals until the danger of infection is gone, and those forbidden to embark from ship or trains, with

110 Colby v. Jackson, 12 N. H. 526; Van Deusen v. Newcomer, 40 Mich. 90.

111 Colby v. Jackson, 12 N. H. 526; Porter v. Rich, 70 Conn. 235, 39 Atl. 169; Ayers v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338; Keleher v. Putnam Co., 60 N. H. 30, 49 Am. Rep. 304; Doyle, Petitioner, 16 R. I. 537, 27 Am. St. Rep. 759, 18 Atl. 159; Lott v. Sweet, 33 Mich. 308.

112 Van Deusen v. Newcomer, 40 Mich. 90; Denny v. Tyler, 3 Allen, 225; Ayers v. Russell, 50 Hun, 287, 3 N. Y. Supp. 338; Look v. Dean, 108 Mass. 116, 11 Am. Rep. 323; Davis v. Merrill, 47 N. H. 208.

113 Whidden v. Cheever, 69 N. H. 142, 76 Am. St. Rep. 154, 44 Atl. 908.

out liability upon the part of those enforcing the restraint. Hence it is lawful for a health officer to send persons from an infected vessel to a hospital,114 and such person may not escape upon habeas corpus proceedings.115 Again, persons may be prevented from entering a town or state until they have undergone quarantine inspection and disinfection, and a statute requiring such action is constitutional.116 But, of course, such confinement and restraint must be in strict observance of statutory requirement, though the officers may be allowed some discretionary power, they not being in this respect mere ministerial agents.117 If such officers act within the limits of their authority and in good faith, they cannot be held liable for errors of judgment, but it is well settled that such an officer is liable for acts in excess of his authority.118 Compulsory confinement may be enforced when conditions demand it, whether or not the one confined is in destitute circumstances, whether or not he is or may be properly cared for by himself or relatives, because the object is not primarily the care of the disease, but the protection of the public health.119 This object indicates the limitation upon this power, for, while the state may compel medical treatment where a lack of it would tend to a spread of the contagion and endanger the community, in cases

114 Harrison v. Mayor etc. of Baltimore, 1 Gill, 264. 115 In re Smith, 84 Hun, 465, 32 N. Y. Supp. 317.

116 Minneapolis etc. R. R. Co. v. Milner, 57 Fed. 276. See Campagne Francaise etc. Navigation Co. v. State Board of Health, 51 La. Ann. 645, 72 Am. St. Rep. 458, 25 South. 591.

117 Harrison v. Mayor etc. of Baltimore, 1 Gill, 264; In re Smith, 84 Hun, 465, 32 N. Y. Supp. 317; Minneapolis etc. R. R. Co. v. Milner, 57 Fed. 276.

118 Whidden v. Cheever, 69 N. H. 142, 76 Am. St. Rep. 154, 44 Atl. 908; Spring v. Hyde Park, 137 Mass. 554, 50 Am. Rep. 334.

119 Harrison v. Mayor etc., 1 Gill, 264; Brown v. Purdy, 54 N. Y. Super. Ct. 109.