Mitchell v. Lemon

Alvey, J., delivered the opinion of the Court. This was an action by the appellee, a licensed, nightman in the city of Baltimore, against the appellants, members of the police force in that city, of trespass and false imprisonment. ¹⁷⁹ The appellee was arrested and confined in a station-house of the city, -without process, for the violation of certain health regulations in regard to the removal and deposit of nightsoil. The facts are uncontroverted, and from them it appears that the appellee was, at the time of the arrest, in the act of violating the ordinances of the city. The Board of Health, in pursuance of an ordinance upon the subject, had designated the places for the deposit of the nightsoil, and given notice of the fact, and no sink or vault was allowed to be cleaned, or the contents removed, unless by special permit from the Commissioner of Health.

The appellee, as witness in the cause, admitted that he was aware, at the time of the arrest, of the order of the Board of Health, designating particular localities for the deposit of the nightsoil, but that he disregarded the order, because it cost him more to take the manure to those places than to the place where he was at the time depositing it. By ordinance, it is made the duty of the Board of Health to cause to be executed and observed all ordinances for the preservation of health; and, by another ordinance, it is made the duty of the police officers to execute all orders of the Board of Health, so far as they may relate to the preservation of the health of the city. Instructions were given by the Commissioner of Health to the Board of Police Commissioners, through whom the police power of the city is exercised, and to the Captains of Police, not to permit the deposit of nightsoil at other places than those designated, and to prevent its being done, by the arrest of the parties attempting it. Among the duties of the Board of Police Commissioners, prescribed by law, (Sup.

Code, Pub. Local Laws, Art. 4, sec. 809,) are those of preserving the public peace, preventing crime and arresting offenders, guarding the public health, and enforcing all laws in relation thereto, and of enforcing all laws and ordinances which may be properly enforceable by a police force. The police power thus delegated to the Police Commissioners, is executed and enforced by the agency of a regular police organization, authorized by the 810th section ¹⁸⁰ o£ the law just referred to, the members of which act under the authority and direction of the commissioners, and in obedience to the ordinances of the city.. The police department being, as we have seen, charged with the duty of enforcing the ordinances in regard to the public health, and of the orders of the Health Commissioners in pursuance thereof, directions* were given by that department to the policemen, among them the defendants, for the arrest of persons found violating the health regulations; and it was in consequence of such directions that the appellee was arrested and confined in the station-house.

He admits, in his testimony, the commission of the act alleged to be in violation of the health regulation of the city; and he also admits that no violence or unnecessary force was used in his arrest and detention. On this state of case, the Court below instructed the jury that they must find for the appellee, the plaintiff, “ unless they should find that the plaintiff was about to commit a nuisance, and that it was necessary to make such arrest and imprisonment in order to prevent the same.” • To this the appellants excepted, and whether such instruction was correct or not, is the only question