(dissenting). — I. The count for malicious prosecution should, in my opinion, not have been allowed to go to the jury, because there is no evidence that the information was filed by one who had authority to bind defendant by filing same. _ Is there enough evidence to take to the jury whether one Bull, who swore to the information, had authority to bind -defendant by that act? The majority holds that the act of Bull, in filing this information, was the act of the defendant, because: (1) Bull was the “special agent” of the defendant; (2) because he had the duty of investigating “offenses perpetrated against the company;” and (3) because policemen employed by the company, and who made the false arrest, were under the direction and control *343of Bull. While these facts may establish that a false arrest sanctioned by Bull, or made by those under his control, may be treated as the act of the defendant, that is true as to false arrest only, and is no warrant for holding that a malicious prosecution, instituted by the filing of information on the part of Bull, is also the act of the defendant. In my judgment, neither the duty to investigate “offenses perpetrated against the company,” nor the power to supervise or control depot policemen, gave authority to institute the prosecution at bar. Proof that Bull was “an agent” of (he defendant’s would fall short of proving that he had authority to bind it by filing informations complaining of disturbances of the peace upon the depot grounds of defendant. Being a “special agent” implies even less authority than being “an agent.” The term “special” of itself negatives anything but specifically delegated authority, and proving that one is the “special agent” of a railroad corporation is, therefore, no evidence of authority to bind it by filing informations on its behalf. The testimony additional to this is, first, what Bull told witnesses his powers were. It should not be considered, because agency may not be established by the declarations of the alleged agent. Second, Mr. Bull testified:
“The general character of my work rendered the company includes the investigation of offenses perpetrated against the company * * * I had no special direction in connection with the filing of that information or arresting these men except the exercise of my own best judgment at the time. * * * I received my instructions from Tim T. Kelliher, of Chicago, and from the superintendent of the division.”
It appears the policemen who made the arrest were paid by the plaintiff, but appointed by the city of Fort Dodge. They made the arrest on the claim that plaintiff and others were fighting and otherwise disturbing the peace *344while -upon the depot grounds of the defendant, and it appears that these, policemen were under the supervision and control of Bull. It is upon these premises the majority declares:
“There can be no doubt that he had authority from the company to arrest the plaintiff if he thought there was any ground therefor, and that he also had implied' authority to direct Core and Gressley to malee the arrest. Having this authority, it follows, as a necessary incident thereto, that he had implied authority to file or to direct the filing of an information against the party or parties thus arrested.”
In effect, if one have the power,- say, to employ, discharge, or direct policemen, and without direction the policemen make an arrest, the first is, without more, authorized to file a sworn information against the persons arrested.
The opinion seems to rely on Stewart v. Feeley, 118 Iowa 524. I am constrained to say that there is absolutely nothing in the case that justifies its being cited at all in the case. It decides that, where an arrest is made without a warrant, it is the duty of the officer to take defendant before a magistrate and make complaint. The sections of the statute to which the case refers define, among other things, when a private person may make an arrest without a warrant. As no felony is charged in the information complained of, all that is relevant in this definition is that a private person may make such an arrest for a public offense committed or attempted in his presence. Bull was not a peace officer. Consequently, he could make an arrest only where such offense as he charged was committed or attempted in-his presence, and there is no claim that this is true in this case. Assume for the Stewart case that it is the duty of an officer who makes an arrest without a warrant to take defendant before a magistrate and make com*345plaint, and the avoidance is that Bull was not an officer, did not make the arrest at all, and that, had he been an officer and made the arrest and made complaint, his authority to do so would come from the law, and not from his employer. An information is a statement under oath, setting forth the acts of the defendant upon which the complaint is based. Of necessity, such sworn statement is to be made by one who has knowledge of the facts set forth, or at least has reason to believe that those facts exist. Thfere is no evidence that Bull knew these facts, or believed that they existed. All that appears on the subject is the testimony of Bull himself, that he recalls “the month of December, 1911, when some of these men from Cherokee County were arrested,” and that he signed the information upon which they were tried. If one concede that Bull had the right to sign an information at all, that fact makes no one other than himself responsible for the consequences. In the last analysis, the position of the majority is that, if one is employed to supervise policemen in the service of his employer, such employment makes it his duty to do whatever oath-making may become necessary to initiate punitive proceedings against anyone who commits a public offense which affects the employer specially. I am loath to hold that there is any such principle in the law of agency. In my opinion, it Avould not matter if the defendant had told Bull to sAvear to all informations charging a disturbance on its depot grounds though he neither knew nor had reason to believe that what he swore to Avas true. Such an arrangement would, no doubt, make the parties to it punishable, but, for reasons sounding in public policy, would create no agency to make affidavits.
I Avould reverse the judgment on the count for malicious prosecution.