In the case of Kiesel v. District Court, 96 Utah 156,84 P.2d 782, 784, it was stated:
"But we think the legislature intended to make the requirement so positive and unequivocal as to require the court to dismiss the suit if the bond was not filed at least contemporaneously with the complaint if motion to dismiss was timely made."
I refer to my concurring opinion in the former appeal of this case, 101 Utah 75, 118 P.2d 132. I called attention to the fact that where the complaint did not show that the defendants were peace officers or, if it so showed, did not reveal that the conduct sued on arose out of or in the course of performance of his duty, the only way the defendants had to raise the question of whether a bond should have been given as a condition of suing was to make a motion for dismissal on the ground that the suit was based on conduct committed while in the course of the performance of his duty, etc., and introduce evidence of such facts. I do not think this case raises the question of "official immunity." The question before us is not on the merit of the pleadings or the liability of the defendants but on the question of whether under Sec. 104-44-22, the complaint was properly filed. This depends on whether a bond for costs should have been simultaneously filed. This in turn depends upon two questions — (a) Was the defendant a peace officer as included in the class specified in Sec. 104-44-22? (b) If so, was he in the course of the performance of his duties when he committed the alleged act, or did the action arise out of the performance of his duty? This is the issue on the motion. The court should hear the evidence on those questions and make his findings and conclusions thereon. If he concludes that the evidence shows the defendant was a peace officer and the acts complained of did arise out of or in the course of the performance *Page 100 of his duty, he should dismiss the complaint. This leads directly into the question as to whether the findings did so find and whether there was evidence to support them.
The findings appear to contain the ultimate facts necessary to sustain a conclusion that the complaint was improperly filed and thus sustain a judgment if dismissed. The findings read:
"`That the defendants, Fred Lee, Lee Rogers, and A.C. Randall were at all times mentioned in the amended complaint of the plaintiff, peace officers charged with the duty of enforcement of the criminal laws of Utah, and that at the time and places mentioned in each of the four causes of action set out in the amended complaint of the plaintiff, the said defendants, Fred Lee, Lee Rogers, and A.C. Randall were acting as such peace officers, and the action set out in each of four causes of action of the plaintiff's amended complaint arose out of or in the course of the performance of the duty of said defendants as peace officers to enforce the criminal laws in the State of Utah. That the plaintiff herein failed to file with, and at the time of the filing of the complaint in this action, a written undertaking with at least two sufficient sureties in an amount to be fixed by the court, conditioned upon the diligent prosecution of this action, and in the event, judgment should be against the plaintiff for the payment to said defendant of costs and expenses that may be awarded against such plaintiff, including reasonable attorney's fee to be fixed by the court, all in compliance with Chapter 148, Laws of Utah, 1937.
"`Now, therefore, upon the motion of Gerald Irvine, one of the attorneys for said defendants, made in open court the day and year aforesaid, it is hereby ordered that the above entitled action be, and the same is by these presents, dismissed.'"
I do not think we should be technical in requiring a separation of Findings of Fact and Conclusions of law. Sometimes it is impossible to do so because the ultimate fact has embedded in it one or more conclusions as to legal propositions which cannot be separated.
The real question in this case is whether the evidence supports the Judgment of Dismissal or more specifically, does the evidence support a finding that the officers were in the course of the performance of their duty or did the acts for which they are being sued arise out of said performance? *Page 101 This does not mean that they have immunity from suit for that reason. They can be sued for torts committed while in the course of the performance of their duties. It only means that if they are acting in the course of the performance of their duties, a bond as a condition for filing the complaint must also be filed.
Without going into the evidence in detail it appears that defendant Lee was assigned to go to see Mr. Wright by Sherman Falkenrath, his superior officer, and that he talked to the plaintiff pursuant to that authority. The witness was asked whether he filed the criminal complaint against plaintiff set out in the second cause of action as part of his business as a police officer for Salt Lake. He stated that in doing so he acted in response to orders from his superior officer. The matter of whether he did an act in the performance of his duty or as a police officer is the ultimate question which the trier of the fact should determine from basic facts. If in an Industrial Commission case the issue is as to whether the applicant was injured in the course of his employment, the commission could hardly determine such issue if, instead of developing the basic facts, it asked the question in the very terms of the ultimate question to be decided. But it appears that Lee filed the criminal complaint in pursuance of a direction from his superior officer. This alone would be sufficient to infer that he was in the course of his official duties unless the act he was required to do was palpably not within the legal authority of the superior to exact or require. That the arrest, made the basis of the first cause of action, was in the performance of his official duties is not so clear for the evidence shows he "was assigned to the case" by Sherman Falkenrath but what he was required to do does not appear specifically. In view of the fact that this case was formerly reversed because of insufficient evidence taking the form of conclusions and hearsay, I cannot understand why interrogating counsel should not have been more careful to develop basic or underlying facts. But I think it is a fair inference that Lee arrested *Page 102 Wright as part of a duty assigned to him by Falkenrath, although the evidence is specific only to the "occasion of his going to see Mr. Wright."
However, the cross-examination seems to have cured any inadequacy or indefiniteness which existed in the direct examination. From the answers to this cross-examination it appears that Lee was told by Falkenrath to investigate Wright in reference to the robbing of Mrs. Vivian Chealey and that he arrested Wright for investigation. Whether he did this validly or invalidly, he did it in the course of the performance of his duties.
Randall was asked the ultimate question as to whether he was performing his duty as a police officer and whether he was acting pursuant to the instruction of a superior officer when he accompanied Lee to Wright's home on December 29th, 1939. The questions were objected to as conclusions. The objections were overruled and the cross-examination did not cure the defect of proof. But the witness did testify "that he was detailed by Captain Falkenrath to assist Fred Lee in that investigation." I think the fair inference from the evidence in connection with that of Lee supports a conclusion that Randall was a peace officer at the time of the acts complained of acting in the capacity of such officer.
While the testimony of Lee Rogers as to his reasons for arresting Wright on July 7th, 1940, are not clear nor is his testimony as to whether he was acting according to instructions in that regard, I think the evidence sufficient to sustain a finding that he was acting as a police officer in the course of his duties. It is not clear that Rogers was in the course of the performance of his duty of enforcing the criminal laws of the state. The statute itself is not clear as to whether the phrase "charged with the duty of enforcement of the criminal laws of this state, or service of civil process" is simply descriptive of the type of person who can demand the bond or whether he must be in the course of the performance of such described duties in order to demand that the bond be filed. However, that need not now be decided *Page 103 because the evidence of all three officers is susceptible of the construction that they were engaged in performance of enforcing the criminal laws of the State.
On the question of constitutionality of Sec. 104-44-22, I entertain doubt. It does not offend on the ground of discrimination. There is sufficient basis for a classification between peace officers and others as defendants. Blackmarr v.City Court of Salt Lake City, 86 Utah 541, 38 P.2d 725. Also, the statute provides for the reciprocal obligation to pay attorney's fees. But are the burdens attached to suit on the part of poor persons not so great as virtually to deny them access to the courts in contravention of Art. I., Sec. 2 of the Constitution? The court must fix the bond before suit can even be brought. Therefore, the right of the litigant to use the courts is from the beginning largely dependent on the discretion of the court. And arbitrary action or abuse of public authority is usually not directed against the affluent and influential, but against the poor and the humble. They cannot offer indemnification to a bondsman and it would be rare, indeed, that some friend whose margin between actual want and a small nest egg would ordinarily be very slim would want to risk this small hostage to old age in an obligation to pay costs and the indefinite fee of an attorney. On the other hand, the legislature may have decided that it would better serve the public interest if officers in the performance of their duties could do so without fear of financial loss due to harassing and vexatious suits. This court is only one of the facets of democratic government with definite limitations to its field of action. It has judicial supremacy only in the sense that when it clearly appears that the law is unconstitutional, we will declare it so. All doubts must be resolved in favor of constitutionality. Otherwise, we transgress into the field of action of a coordinate branch of government. This principle of resolving all doubts in favor of constitutionality is not something to which lip service is to be paid and then forgotten. It is a solemn and fundamental principle which lies at the very foundation of *Page 104 our form of government. It is for the reasons above stated that I prefer to reserve final judgment on this question until the matter can be more thoroughly explored in an opinion of the court, rather than in a dissent. I shall, at this time, choose to consider Sec. 104-44-22, U.C.A. 1943, as constitutional reserving the privilege of holding the question open for future examination.