DISSENTING OPINION. I cannot agree with the opinion or conclusion of the majority in reference to appellee Schuerman. If I believed this court had jurisdiction of this appeal I would agree with the majority as to appellee Taflinger. However, because of the interpretation placed by the majority on § 17, ch. 299, of the Acts of 1935, p. 1463, § 47-831, Burns' 1940 Replacement, I believe the jurisdiction of this case is in the Supreme Court. The appellant has, in my opinion, properly presented the question of the validity and constitutionality of this section, particularly when given the construction adopted by the trial court and approved by the majority decision of this court.
In the first place, I do not believe § 17, supra, has any application to the facts in this case. This section *Page 433 is a part of the act creating the State police department. Section 18 of the same act (§ 47-832, Burns' 1940 Replacement), provides as follows: "This act shall be liberally construed, to the end that the criminal laws may be efficiently enforced andoffenders promptly and certainly apprehended." (My italics.) It is nowhere contended by any of the parties hereto that appellant was even suspected of having violated any criminal laws of this State. If the broad construction placed by the majority on this section can be justified (which I do not concede), then certainly it can only apply to the detention of persons either charged with or reasonably suspected of having violated a criminal law. In the instant case no such suspicion attached to appellant. Appellee Schuerman knew he was not an inmate of the Muscatatuck Colony, and despite that knowledge he detained him in jail for several hours.
Secondly, I do not believe it was necessary to place the broad construction on § 17, supra, which has been placed upon it by the majority to sustain the intent of the Legislature in enacting this section. It is an elemental rule of statutory construction that in considering the meaning of a particular section of a statute, the whole statute must be considered.
Section 14 of the Acts of 1935, ch. 299, p. 1463 (§ 47-828, Burns' 1940 Replacement), in defining the powers of the State police department, provides in part as follows: "police employees of the department shall be peace officers and shall have in any part of the state the same powers with respect to criminal matters and the enforcement of the laws relating thereto as sheriffs, constables and police officers have in their respective jurisdictions." This provision indicates to me that it was the legislative intent that the State police should have *Page 434 only the same authority as that possessed by other constitutional and statutory law enforcement officers. Certainly it cannot be contended that law enforcement officers generally may arrest and detain a person indefinitely without legal process — particularly when they know that such person is guilty of no offense. Sections 48-6112 and 49-2802, Burns' 1933, provide under what circumstances an arrest may be made without a warrant, and that in such instances the arrested person must be taken before a magistrate or other judicial officer as quickly as is reasonably possible. In my opinion it was not the legislative intent to repeal these provisions protecting our citizenry from the arbitrary and capricious conduct of police officers when it enacted § 17, supra. I find support for my opinion in this regard in the recent decision of the United States Supreme Court in the case of Benjamin McNabb, Freeman McNabb and RaymondMcNabb, Petitioners, v. United States of America (1943), 87 Law ed. 819, in which case it was held that evidence obtained against defendants while they were held by government officers without having been brought before a United States commissioner or judge, as required by law, was inadmissible because it was obtained in violation of the rights guaranteed to them by the Constitution. The opinion further pointed out the law of the United States and forty-four states was similar to the provisions contained in §§ 48-6112 and 49-2802, supra.
"As a general rule, unless a jailer has legal authority in the form of a valid written mittimus, he is liable for false imprisonment in detaining a prisoner beyond a reasonable time for procuring such authority." 22 Am. Jur., 366, 367, § 20. "The fact that a police officer making an unlawful arrest was acting under direct orders of his superior is not generally a defense to the *Page 435 action" (action for false imprisonment). 22 Am. Jur. 417, § 96. "If the person arrested is detained or held by the officer for a longer period of time than is required under the circumstances, without . . . warrant or authority, he will have a cause of action for false imprisonment against the officer and all others by whom he has been unlawfully detained." Harness v. Steele,By Next Friend (1902), 159 Ind. 286, 295, 64 N.E. 875.
Finally, I cannot agree with the majority that the construction they have placed on § 17, supra, is justifiable as a valid exercise of the police power. I have never understood that the police power of either the state or national government was superior to the Constitution which created such government. I recognize that it is a broad power. It is an inherent attribute of all governments. It has been said that it is the inherent power to enact laws, within constitutional limits, to promotethe order, safety, health, morals and general welfare ofsociety. 16 C.J.S. 537, § 174.
In 11 Am. Jur. 972, § 247, the following language of Chief Justice Shaw, used in the case of Commonwealth v. Alger (1851) (Mass.), 7 Cush. 53, 85, is quoted in defining the police power: "The power vested in the legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same." (My italics.) For numerous approvals of this definition, see n. 15 to the above quotation.
In the case of Republic Iron Steel Company. v. The State (1903), 160 Ind. 379, 385, 66 N.E. 1005, in speaking of the police power, our Supreme Court said: "As far-reaching and flexible as the power has often *Page 436 been held to be, it is nowhere claimed for it that it may override the Constitution, and strike down a right that has been solemnly and expressly guaranteed by the fundamental law." Again, in the case of The State v. Gerhardt (1896), 145 Ind. 439, 452, 44 N.E. 469, our Supreme Court declared, in reference to this power: "it cannot be invoked so as to invade thefundamental rights of a citizen." (My italics.)
Our government is based upon the ideal that the individual possesses certain inalienable rights. Those rights are superior to the rights of the state except only where the exercise of such right would unjustly interfere with the rights of another individual or individuals, or where the curtailment or deprivation of such rights are clearly necessary for the protection of the general welfare of all the people. One of the most sacred of the inalienable rights of the individual citizen is his right to liberty — which includes immunity from the unlawful seizure and detention of his person by any agency of the state. Article 1, § 11, Constitution of Indiana. Can it be reasonably said that it is in the interest of the public welfare to empower any select group created by the Legislature to arrest a citizen without warrant or other legal authority, and that such select group can then require a constitutional peace officer to detain such individual even though such constitutional officer knows of his own knowledge that there is no legal cause or justification for such detention? Such an idea is contrary to my conception of our form of government. If there is such authority in the Legislature, then the Bill of Rights is a meaningless bit of rhetoric. The majority opinion says the Legislature has such authority. Such a construction, in my opinion, squarely presents a question of the validity and constitutionality of the act here considered. Therefore, *Page 437 this case should have been transferred to the Supreme Court. Sections 4-214, 4-217, Burns' 1933.
NOTE. — Reported in 52 N.E.2d 728.