Opinion
No. 37449.
April 10, 1950.
1. Arrests — highways — patrolmen.
Highway patrolmen are not peace officers in the ordinary sense and the official duties of a highway patrolman in the matter of making arrests are confined (1) to violations of the traffic laws or regulations upon the highways; (2) to crimes and breaches of the peace committed on a highway within his presence or view, and (3) at the instance of the governor to aid any peace officer in the capture of a fugitive from justice on the highway.
2. Rewards — fleeing homicide — highway patrolmen.
A highway patrolman, not acting therein at the instance of the governor, who arrests a fleeing homicide, the homicide not having occurred on a highway within the patrolman's presence acts not as a peace officer but as a private citizen, and is entitled to recover the statutory reward for the arrest when under the same circumstances a private citizen would be entitled thereto.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Rankin County; PERCY M. LEE, Judge.
Ernest Shelton, for appellant.
I. Sections 2482 and 2483 Code 1942 should be liberally construed in favor of the person making the arrest. Warren County v. Lanier, 87 Miss. 606, 40 So. 429; Ex parte Webb, 96 Miss. 8, 10, 49 So. 567 (overruling Tate County v. Moore, 87 Miss. 245, 39 So. 781); Ex parte Austin, 129 Miss. 869, 93 So. 369; Ex parte Fairley, 162 Miss. 456, 139 So. 399.
II. All of the statutory requirements were met which entitles plaintiff to recover statutory reward.
The declaration sets forth and the plea admits all of the necessary statutory requirements to entitle the plaintiff to the statutory reward, whether he be a private person under Section 2482, or an officer under Section 2483 Code 1942. If plaintiff be considered an officer, the killing occurred in Rankin County and the plaintiff making the arrest resided in Carroll County, thus bringing him within the provisions of Section 2483 Code 1942.
III. A highway patrolman is not a peace officer and is under no more duty to arrest a fleeing homicide than a private citizen unless he is assisting a peace officer with the approval of the commissioner and the governor.
In the case at bar the patrolman was not assisting a peace officer with the approval of the commissioner and governor in making the arrest. He had no statutory authority to make the arrest other than as a private citizen. The fleeing homicide was not committing or attempting to commit any misdemeanor, felony or breach of the peace within his presence or view on the highway. He had not been directed by the governor to enforce the criminal laws of the state.
We take it that we are limited on this appeal to the declaration and special plea. We recognize the rule that it would be against public policy for an officer to accept a reward for a service rendered that it was his duty to perform, but that is not the case before this Court. There is no prohibition in the statute that prevents a highway patrolman from accepting a reward, or at least we have been unable to find such a prohibition.
IV. Section 2483 Code 1942 declares the sound public policy of this state with reference to a public officer entitled to a reward.
The legislature of the State of Mississippi through the enactment of Section 2483 Code 1942 has declared what is the sound public policy of the State of Mississippi with reference to a public officer entitled to and accepting a reward. The only exception contained in the statute is that the homicide must have occurred outside the county in which the arresting officer resides. Prior to the enactment of Section 2483 Code 1942 which was first enacted as chapter 187 of the Laws of 1910 it had been held in this State that officers under obligation as such to make the arrest were not entitled to the reward provided for in Section 2482 Code 1942, said section first appearing as chapter 64, Article 286 of the Code of 1857 and being brought down in the succeeding Codes to this date. See Ex parte Gore, 57 Miss. 251. Thus since the enactment of chapter 187, Laws of 1910, it has been the public policy of the State of Mississippi to permit public officers to receive a reward for the arrest of a fleeing homicide, the only exception being as noted above that the killing must have occurred outside of the county in which the arresting officer resides.
Since it is the sound public policy of the State of Mississippi that a public officer is entitled to the statutory reward for the arrest of a fleeing homicide where the killing occurred outside of the county of the residence of the arresting officer and especially in this case where it was not his duty or within the scope of his duty to make the arrest, he not being a peace officer, and not assisting a peace officer with the consent of the commissioner and the governor, then, we submit that the appellant is entitled to the reward.
J.C. Murray, for appellee.
This patrolman took time out to bring the prisoner to Jackson at the expense of the State, and again took time out to come to Brandon to court to press his claim for this reward. Is this conducive to the best interests of the State of Mississippi, or does it tend to subvert the public welfare and thereby be contrary to public policy?
But appellant argues that by Section 2483 Code 1942 he is permitted to collect this reward. Section 2483 was written into the laws of this State long before a highway patrolman was ever heard of in Mississippi, and at a time when there was no officer having jurisdiction outside the county of his residence. The legislature then had in mind only sheriffs, deputy sheriffs, constables and policemen. Now, the highway patrolman is an officer whose jurisdiction is co-extensive with the boundaries of the State. I do not know whether the governor and commissioner of the Patrol had authorized patrolmen to assist in the capture of a fugitive from justice, as provided by Section 8082 Code 1942, but the patrolman, appellant, did capture a fugitive from justice, a fleeing homicide, and thereby he exercised this right. He was wearing the uniform and badge of an officer and exercising the functions of an officer. Could it be seriously argued that if appellant had been so authorized or was so authorized, that he would be entitled to receive the reward, and if it be said that he would not be, then can it be said that where this officer assumed this right that he would be entitled to any greater benefits than if he were acting lawfully. To say the least, appellant was a de facto officer in making this arrest, and his jurisdiction was co-extensive with the boundaries of the state.
We respectfully submit that: (1) Section 2483, Code 1942, was never intended to authorize an officer having state wide jurisdiction to collect the statutory reward for the arrest of a fleeing homicide, whether he be acting within or outside the scope of his authority and duty.
(2) That it would be inimical to the public welfare, and against public policy to permit a highway patrolman who, while on duty and wearing the uniform and badge of a patrolman, and operating an automobile at the expense of the state, to arrest a fleeing homicide and recover the statutory reward therefor. The State of Mississippi paid appellant for the time consumed in making the arrest and transporting the prisoner to Jackson, and paid the expense of transporting him. Why should Rankin County be required to again compensate him. If Rankin County should remunerate anyone, it should repay the State for the time and expenses involved in the arrest and transporting of the prisoner to Jackson.
(3) The statutes plainly show that the legislature never intended for patrolmen to receive any compensation or fees other than the salary provided by statutes; and that case should be affirmed.
The statutory reward of $100, as provided for under Section 2482, Code of 1942, was allowed to the appellant W.W. Smith by an order of the Circuit Court of Rankin County for the arrest and delivery of Charlie Scott, who had shot and killed L.C. Mattock, in said county, and who had fled therefrom and was still fleeing when he was arrested on the state highway in Carroll County by the appellant.
The appellant filed his claim in due form based upon the said order of the Circuit Court, before the Board of Supervisors of the County. The Board rejected the claim, and when the cause again reached the Circuit Court there was alleged by the plaintiff in his declaration all the essential facts that would entitle him to a judgment against the county for such reward. The county, however, filed a general issue plea and also a special plea to the effect that in any event plaintiff should not recover because at the time of the arrest by the plaintiff of Charlie Scott, a fleeing homicide, and at all times mentioned in the declaration, the plaintiff was a duly appointed and acting highway patrolman of the State of Mississippi, employed under the provisions of Section 8079 of the Code of 1942, and was on duty as such and was wearing the uniform and badge of a patrolman and was riding in an automobile belonging to the state, and operated at the expense of the state, in the performance of his duties, and that upon the arrest of the fleeing homicide he was transported in said automobile to where he was delivered up to the sheriff of Rankin County for trial; and that the jurisdiction of the said highway patrolman was co-extensive with the boundaries of the State, and that it would be contrary to law and public policy to permit him to recover the statutory reward. The special plea was sustained by the Circuit Court for the reasons stated therein, without the taking of any proof, since the facts alleged in the plea were disclosed in the declaration filed by the plaintiff.
(Hn 1) Section 8079, Code of 1942, supra, and Section 8082 thereof define the powers and duties of the members of the Highway Safety Patrol. It is their duty "to enforce all of the traffic laws, rules and regulations of the state of Mississippi upon all highways of the state highway system and the rights-of-way of such highways; provided, however, that if any person commits an offense upon the state highway system and be pursued by a member of the highway safety patrol, such patrolman may pursue and apprehend such offender upon any of the highways and public roads of this state or to any other place such offender may flee." They are further authorized "to arrest without warrant any person or persons committing or attempting to commit any misdemeanor, felony or breach of the peace within their presence or view on any highways of the state highway system . . ." And with the approval of the Commissioner and the Governor, they are "to aid and assist any peace officer of this state, or any other state, in the capture of any fugitive from justice using any of the highway or public roads of this state in an attempt to effect an escape."
No violation of the traffic laws, rules and regulations are involved in the instant case. Nor was any misdemeanor, felony or other breach of the peace committed on the highway within the presence of this patrolman. Moreover, there is nothing to indicate that he was acting at the instance of or with the approval of the commissioner and the Governor in trying to aid and assist any peace officer in the capture of a fugitive from justice on the highway. None of the many other provisions of these statutes which relate to the duties and privileges of highway patrolmen are in our opinion applicable to the facts of this case.
While it has been repeatedly held by this Court that highway patrolmen are not peace officers within the sense that sheriffs, constables and policemen are such to enforce the general laws of the state, but act within the limited sphere of the authority granted them under the statutes above mentioned, it is to be noted that under Section 2483, Code of 1942, the legislature has declared the public policy of the state to be that even sheriffs or other officers who shall arrest a fleeing homicide, or one who is attempting to flee, shall be entitled to this statutory reward the same as other persons, provided the killing is not done in the county in which the officer making the arrest resides.
(Hn 2) In the instant case the plaintiff, not being a peace officer, had the same authority that a private citizen would have had under the same circumstances, and no more; and would, therefore, be entitled to receive the statutory reward the same as if he had been a private citizen and had made the arrest and delivery of the prisoner under the circumstances provided for by Section 2482, Code of 1942.
We are, therefore, of the opinion that the special plea should not have been sustained, but that the plaintiff should have been permitted to prove the allegations of his declaration, in which event he would have been entitled to recover the reward. However, under the plea of the general issue the defendant would have been entitled to defeat a recovery by disproving the facts alleged in the declaration. The facts are not admitted as long as the general issue plea remains undisposed of.
Reversed and remanded.
Lee, J., took no part in this decision.