Sheets v. Atherton

The opinion of the court was delivered by

This is an action of trespass for false imprisonment.. The defendant justifies the arrest and imprisonment as fish warden of the town of Waterbury. The plaintiff contends that the judgment of the County Court is erroneous because the facts-found by the referee fail to make out a justification in several particulars.

I. He contends that the defendant’s jurisdiction as fish warden-was limited to the town, by the selectmen of which he was-appointed. The language of the act under which he was-appointed is, s. 1, No. 117, Acts of 1882, “ The selectmen of any town may appoint and remove at pleasure a person to be fish-warden in their town, who may arrest on any of the waters of Lake Champlain, or on the shores thereof, any person found violating the provisions of chapter one hundred and seventy, Revised Laws, or any amendments thereof, and prosecute such offender before the proper tribunal.” The other provisions of this section, which is an amendment of s. 3871, R. L., do not come under consideration in this case. He urges that the language, “ A person to be fish warden in their town,” limits his-jurisdiction to the limits of the town. The language following,. “ who may arrest on any of the waters, public or private, of this State or on the waters of Lake Champlain, or on the shores thereof,” is broad enough to give him jurisdiction throughout the State. The defendant urges that this general language, is limited by the language which precedes it to such of the *234waters named as a.e within the town from which he is appointed. This construction would limit the right to arrest on the waters of Lake Champlain or on the shores thereof to fish wardens appointed from towns which border on the lake, and be inconsistent with the language, “ The selectmen of any town may appoint,” etc., a fish warden having this general jurisdiction. That it was the intention of the Legislature to give a fish warden .so appointed from any town general jurisdiction throughout the State becomes more apparent when the language of s. 3871 which this amends is considered. That section in clear, undoubted terms gives a fish warden so appointed jurisdiction throughout the county in which the town appointing is situated. The language of the amendment plainly indicates an intention to increase the jurisdiction and powers of such officer. This contention is ■not sustained.

II. He further contends that the section gave the defendant no' ■authority to arrest without a warrant. The language is that he may arrest “ Any person found violating,” etc. This is only consistent with authority to arrest “ on view,” which is the language of the section of the statute amended. He could not well be armed with a warrant for the arrest of any one he might chance to find violating the law. To give the section this construction would -defeat rather than carry out and enforce the manifest intention -of the Legislature, which was to give speedy and summaiy proceedings against any person caught by such warden violating the law. The scope of this law is to furnish a greater supply of ■fish to all the inhabitants of the State, by preventing their -destruction at particular seasons, and by methods deemed injurious. The provision for arrest by a fish warden of persons found violating the law, is one of preventive justice. Spalding v. Preston, 21 Vt. 9, (50 Am. Dec. 68); State v. Intoxicating Liquor, 55 Vt. 82; In re Powers, 25 Vt. 261. It is plainly intimated in Drew v. HilliJcer, 56 Vt. 641, that the court considered that this section of the act authorized the arrest, without a warrant, of any person found violating the provisions of the law. When the language of the act is considered with reference *235to the circumstances and the purpose to be accomplished, the intention to authorize such arrest without a warrant is as clearly manifest as it is in the cases cited by the plaintiff’s counsel, where the statute in terms authorizes an arrest without a warrant. The defendant’s justification does not fail because he made the ¡arrest without a warrant.

III. The plaintiff properly contends that when a statute authorizes an arrest without a warrant, under circumstances in which .such an arrest could not have been lawfully made without such statute, the arrest can only be justified when made under the ■exact circumstances prescribed by the statute; that the statute ■only authorizes such arrest when the person is found violating the statute. He further contends that it is not found by the referee that he has engaged in fishing, nor are such facts found by him as show that the plaintiff, on the occasion, was violating ¡the law with reference to fishing. We think the referee has found such facts as show that the plaintiff was fishing in violation of the law when the defendant found him there with other fishermen on Lake Champlain. When the defendant arrived on the fishing ground, the referee has found there were barrels on the ice with fish in them, which had recently been taken from the lake; that there was a fishing basket there which had recently been emptied of fish, two nets or seines in the waters of the lake, and that he found the plaintiff helping take one of the seines out of the water. -This clearly shows that some one was fishing then and there. The plaintiff was engaged with the others in helping to pull out the net. In such offense all engaged therein are principals. Taking the net, or seine, from the water was a part of the act of fishing with it. Fishing with it did not cease until the net was fully removed from the water. Resides the referee has found that the plaintiff made a pretty hostile threat of violence to officer Tuttle while the officers were endeavoring to gain possession of the net to prevent its further ■use in violation of the law. From the facts reported we hold that the defendant found the plaintiff engaged in fishing in violation of law, and had lawful right to arrest him without a warrant.

*236IY. It is further contended, that the defendant did not arrest him while engaged in the act; that he arrested him at the shanty some half mile from the fishing grounds, and that this was not. a compliance with the law. We think the arrest must be deemed to have been made from the time and place when the pursuit began, the pursuit having been continuous until the arrest was made. An offender cannot make an arrest illegal by endeavoring to escape, by running away. But it is further contended that if the arrest is referred to the fishing ground, by the flight of the plaintiff and continuous pursuit of the defendant, it was not made while the plaintiff was engaged in fishing in violation of law. The same statute which authorizes the=' arrest, authorizes a seizure of the nets. From the report of the referee it is apparent that the officers were fully and actively engaged in enforcing the law from the time they arrived on the ground and found the plaintiff violating the law, to the time of the arrest. The officers must have a reasonable time to execute the law. They were as much authorized to seize the nets as te arrest those found fishing in violation of the law. They were not bound to make the arrest before they seized the nets. They were to do both as expeditiously as could reasonably be done under the circumstances, and in such manner as they judged would result in an effectual enforcement of the law in every particular. This requirement would not be complied with, if the officer, after finding one violating the law, should go away,, and accomplish some independent business or engagement. He is, at once, to enter upon the enforcement of the law, in its several requirements, and continue his efforts with reasonable diligence, until he has accomplished its purpose. We think the arrest was made within the requirements of the law. We cannot yield to the claim of the plaintiff that the defendant, as fish warden, could not arrest him because he was only violating s. 2 of the act of 1882 and the penalty imposed is recoverable only in a civil action on the case. The facts reported do not necessarily confine the plaintiff’s offense to that prescribed by s. 2 of the act. The right to arrest extends to all violations of the *237chapter and amendments thereto regulating the right of fishing and gaming, some of which can be prosecuted criminally. Nor do we think it necessary that a criminal prosecution should be authorized, for the Legislature lawfully to authorize an arrest for the violation of law, as a preventative remedy, although the arrest is authorized to be made without warrant. The arrest without a warrant may be authorized simply to prevent a violation of law, or to prevent further immediate violation of it. Spalding v. Preston, supra; in re Powers, supra.

Y. The statute provides that such warden, on finding a person violating the law, may arrest “ and prosecute such offender before the proper tribunal.” It is now contended that the arrest made by the defendant fails of justification, because he did not prosecute the plaintiff for a violation of the law. It is argued that the arrest is authorized not only to prevent a further violation of the law, but to bring the offender before a proper tribunal for prosecution. We are not prepared to say that this contention is unsound, that an officer can make an arrest, and go no further unless he shows some good reason for releasing the offender. The defendant did turn the plaintiff over to the State’s Attorney of the proper county for prosecution. We think this was all that the law required of him. By the amendment his right “ to make complaint and prosecute for such offense,” included in the section of the general law amended, is reduced to the right “to prosecute such offender before the proper tribunal.” We think this is fairly complied with when he delivers the offender over to the proper complaining, and prosecuting officer, of the place where the offense was committed and furnishes such officer proper information in regard to the offense and arrest. If the amendment had left the original section in full force so that the defendant was authorized to make complaint and prosecute, the case of Phillips v. Fadden, 125 Mass. 198, and other similar cases would have been to the point, and supported the plaintiff’s contention. As amended the right to make complaint for the offense was taken away, and the only way in *238which the defendant could prosecute the plaintiff before the proper tribunal was to present him for prosecution before such tribunal, unless he became a private prosecutor, which last we do not think was contemplated. Under the facts found, we do not think the plaintiff has any right to complain, that placing handcuffs upon him was such an abuse of authority as to render the defendant a trespasser ab initio. S.uch restraint was reasonable after what had occurred, and the threat which the plaintiff had made.

We find no error in the judgment of the County Court, and the. same is affirmed.