Roberts v. Dean Cone v. Dean

The facts alleged in the declaration filed by D.D. Roberts against Charles S. Dean, as Sheriff of Citrus County, and by Fred P. Cone, as Governor, for the use of D.D. Roberts, against Charles S. Dean, as principal, and the sureties on his official bond as Sheriff of Citrus County, are that a warrant was issued on October 16, 1935, by the County Judge of Citrus County, Florida, commanding the sheriff or any constable of the County to arrest D.D. Roberts for uttering a worthless check, and that on the following day Charles S. Dean, Sheriff of Citrus County, telegraphed F.L. Anderson, Sheriff of Dixie County, as follows:

"I HOLD WARRANT FOR D.D. ROBERTS ARREST AND HOLD WILL COME FOR HIM FRIDAY."

The addressee of the telegram caused D.D. Roberts to be arrested and imprisoned in the county jail at Cross City, Florida, on October 17, and the following day a deputy of the Sheriff of Citrus County transported the prisoner, D.D. Roberts, in custody from Cross City to Inverness.

Demurrers to the declarations were sustained and judgment entered thereon, forming the basis of this appeal. *Page 438

The parties to the controversy have elected to consolidate the cases because they grow out of the same transaction; however, we will consider them separately for the reason that we believe the plaintiffs should not recover in either case, but for different reasons.

It is lawful for any sheriff or his deputy to arrest without warrant any person who violates any penal code of the State in his presence, and it is the duty of such officer to arrest without warrant any person "whom such officer has reasonable ground to believe * * * has committed any felony, or whom he finds * * * committing * * * or about to commit a felony." Section 8323 C.G.L. 1927.

The offense charged in the warrant was a misdemeanor not committed in the presence of the arresting officer, viz.: the sheriff of Dixie County, therefore any authority to arrest was confined to the warrant. That officer apprehended D.D. Roberts because of a telegram received from the Sheriff of Citrus County, who then had in his hands for service a warrant issued by the authorities of the latter County.

Warrants have the same force and effect in counties other than the one in which they originated if they are "endorsed by some judge or justice of the peace living in said other county." Sec. 8321 C.G.L. 1927.

The statute, with reference to the indorsement of warrants, was originally by the Legislative Council of the Territory of Florida more than one hundred years ago, and, of course, at the present time the required indorsement is a great handicap to officers in apprehending persons who have committed acts denounced as misdemeanors and who have moved or fled beyond the county where the warrant originated. With our modern means of transportation and system of highways it would be possible for any such offender to pass not only into another county, *Page 439 but even into another state, while an officer was obtaining indorsements of judges or justices of the peace in order to clothe him with the authority to arrest. Thus is made available to the offender the means of swift transportation, while by the proviso the officer is denied the advantages of speedy communication.

The Court is fully sensible of the awkwardness of such requirement, nevertheless, the situation is one which it is not within our province to correct. The Court is charged only with the interpretation of the law, and cannot undertake to amend a law which may by changed circumstances appear to have become impracticable or obsolete.

The bond of the Sheriff bound him no further than he would have been obligated without it.

In Cassady v. Sholtz, 124 Fla. 718, 169 South. Rep. 487, appears the following expression on the subject:

"An official bond binds the sheriff no further than he would be liable without it. The sole object of the bond is to secure the faithful performance of official duty. And no official act can be considered a breach of the condition of the bond to faithfully execute the duties of the office, unless it would, without bond, amount to a breach of official duty." 124 Fla. text 721.

"`Generally speaking, the purpose of an official bond is to provide indemnity against malfeasance and misbehavior in public office, the misuse of powers belonging to the office, and the assumption, under guise of official action, of powers not belonging to it. All acts so performed, though unlawful or wrongful, are official acts within the meaning of an undertaking that an officer shall faithfully and impartially discharge the duties of his office; and as such may be reasonably considered to have been within the contemplation of the sureties at the time they entered into the *Page 440 undertaking, as constituting a breach of its conditions.' 24 R.C.L. 956, Sec. 50.

"`Hence it is that sureties for an officer are liable only in the event of his failure to perform his duty; and the obligation they assume refers only to such liabilities as arise within the fair intendment and meaning of the obligation itself. It is not an engagement for general good behavior on his part aside from such official duty; neither is the bond of a sheriff liable at the suit of third persons unless the officer is expressly bound thereto by the duty of his office. The reason for this is that while a sheriff owes a twofold duty, one to the public and one to private individuals who are concerned in the execution of civil and quasi-civil process, and is liable upon his official bond for a breach of such duty, the duty in either event must be direct; the cause of action must result to the party injured; and it must operate as a deprivation of an existing right.' 24 R.C.L. 957, Sec. 51." 124 Fla., text 722.

The rule enunciated in State v. Dierker, 101 Mo. App. 636,74 S.W. Rep. 153, points out the distinction between the abuse and usurpation of authority by a sheriff. It was said there that the arrest without process by a peace officer of a person charged with a misdemeanor was a usurpation of power and not within contemplation of the bondsmen who gave security for his official behavior.

In People v. Beach, 49 Colo. 516, 113 Pac. Rep. 513, the decision was that there could be no recovery against the sheriff's bondsmen for injury resulting from the shooting of a prisoner by a deputy in the absence of direct allegations that there was a lawful arrest and that the deputy's acts were of an official character.

We have recognized this doctrine by declaring in Swenson v. Cahoon, 111 Fla. 788, 152 South. Rep. 203, "We think there is a clear distinction between the abuse and the *Page 441 usurpation of the power imposed (sic) in a deputy sheriff"111 Fla. 793, text.

We quote, too, this excerpt from the same opinion:

"In other words, in order to render the sheriff liable for the act of his deputy, the act must be done by virtue of his office as a deputy, and in order that it have that character is must be committed in an attempt to serve or execute a writ or process and as a means to that end, or in acting under a statute giving him the right to arrest without warrant, otherwise he is acting as an individual." 111 Fla. text 790-791.

See also Rich v. Graybar Electric Co., 125 Tex. 470, 84 S.W. Rep. 2d 708, 102 A.L.R. 171, and annotation at page 188.

The warrant was without efficacy in Dixie County and the authority of the sheriff who held it was confined to Citrus County, (57 C.J., Sheriffs and Constables, Sec. 125, p. 775), hence, applying the rules above enunciated, there was no liability against his sureties.

It is alleged that one sheriff appointed the other his agent. We believe that a sheriff's "agents" are his deputies whose authority as to territory coincides with his and that he cannot appoint one who holds the same office in another area to serve in a representative capacity in the latter's domain. Upon indorsement of a warrant, but not until then, the latter officer is empowered to act upon it and the contention is unsound that meanwhile he may serve as the "agent" of the former. There is therefore no liability on the part of Charles S. Dean, as Sheriff, for the deed of F.L. Anderson in apprehending plaintiff in error.

It is borne in mind that after the incarceration of plaintiff in error a deputy was sent to escort him back to Inverness, but at that time custody was transferred to one who was armed with a warrant authorizing arrest. *Page 442

For the reasons given, the previous opinion is adhered to except where inconsistent herewith and the former judgments of reversal are vacated and set aside and the judgments of the Circuit Court are affirmed.

TERRELL, C.J., and BUFORD, J., concur.

WHITFIELD and BROWN agree to the original opinion filed herein.

CHAPMAN, J., agrees to judgment of affirmance.