The disposition of legislatures to interfere in the ordinary concerns of the individual, as evidenced by the laws enacted by parliaments and legislatures from the earliest times, and the futility of such interference to accom subject of remark by some of the ablest of English-speaking observers. Buckle, in his History of Civilization in England, in speaking of the course of English legislation, says: "Every great reform which has been effected has consisted, not in doing something new, but in undoing something old. The most valuable additions made to legislation have been enactments destructive of preceding legislation, and the best laws which have been passed have been those by which some former laws have been repealed." And again: "We find laws to regulate wages; laws to pose to avail themselves of its existence, and the subject applies in equal degree to such an to transport merchandise in their boats over argument; nor have the defendants thereby its waters. Before undertaking such trans- received any privilege or franchise from the portation, however, they must load their boats state. or unload them after such transportation is finished, and in the process of loading or unloading their boats in the public waters of the state they hire the defendants to do the elevating of the cargo. If the canal had not been built, there would have been no boat-plish the purposes intended, have been the men with canal-boats asking for cargoes, and, consequently, the defendants would not have had the opportunity of loading their vessels; therefore the state has conferred a privilege upon the defendants by using which they acquiesce in the right of the state to limit the amount of compensation they can lawfully demand for the use of their own property. The mere statement of the proposition, it seems to me, is its best refutation. To argue upon it would seem to admit that it is debatable. By reason of the action of the state in building the canal, more frequent opportunities have arisen from which the de-regulate prices; laws to regulate profits; laws fendants have been enabled to engage in a certain kind of labor, and to invest their capital in, certain kinds of property, but not a privilege, immunity, or franchise of any description has the state granted to them, even by the loosest construction of language. The legislation in question is nothing else than an effort, not only to regulate the private business of private individuals, but to limit the amount for which they shall exact compensation for the use of their own property, in which the public has no interest whatever, in the legal meaning of that term. If it is legal in this case, it is legal in any. The legis-dustry might thrive." Volume 1, pp. 199, lature can step in and limit the prices of every article of commerce, the product of the field, the mine, or the manufactory. There is seemingly no length to which it may not go, and no home to which this power may not be applied in matters of the most individual and private nature, and all under the guise of legislation for the public good and the general welfare. It is true that the question of the validity of this law is one of power, and not of propriety; and if the legislature in any case may have, under any circumstances, the power to limit the compensation which a private individual may receive for the use of his own property, not devoted to a public use, and in regard to which he receives and exercises no special privilege or immunity from the state, then we are bound to suppose such circumstances to exist in the case before the court. We are of the opinion that the legislature has no such power. There is no foundation for the argument that the elevator owners have a monopoly because they have their charges fixed by the produce exchange, which only recognizes as regular the warehouse receipts given by elevator owners or warehousemen who or warehousemen who are members of that body. If that be the fact, it constitutes in no view of the subject a monopoly. What has already been said upon to regulate the interest of money; custom- 200, etc. The legislation under review is of fort to interfere with what seems to me the [ to all parties, and some new way would have most sacred rights of property and the indi- to be discovered and put in practice; for capvidual liberty of contract that no special in-ital will not seek investment or employment tendment in its favor should be indulged in. where the average rate of profit cannot be It will not, as seems to me plain, even commanded, and men will not continue to achieve the purposes of its authors. I be- transport grain or any other commodity at a lieve it vain to suppose that it can be other loss, or upon such terms that they cannot earn than of the most ephemeral nature, at its a livelihood. If this is the case in the transbest, or that it will have any real virtue in portation of grain by the canal, owing to the altering the general laws of trade, while, on competition of railroads and their ability to the other hand, it may ruin or very greatly transport it cheaply and rapidly, then that impair the value of the property of wholly fact must be faced. Such a business cannot innocent persons. If the compensation lim- be maintained for any length of time, by legited by the act is not sufficient to permit the islation, at the expense either of capital or of average rate of profit upon the capital in- the transporter. Each must earn the average vested, it will result either in its evasion, or profit in the same general line of business, or else the work will not be done, and the capi- the business must, from economical reasons, tal employed will seek other channels where cease. The legislation under consideration is such average rate can be realized, or the prop-not only vicious in its nature, communistic erty will be ome of little or no value. If the in its tendency, and, in my belief, wholly incompensation be suflicient, the same result efficient to permanently obtain the result aimed at would soon follow from the general aimed at, but, for the reasons already given, laws of trade, from the law of supply and de- it is an illegal effort to interfere with the lawmand, and the general cost of labor and ma-ful privilege of the individual to seek and obterials. tain such compensation as he can for the use of his own property, where he neither asks nor receives from the sovereign power any special right or immunity not given to and possessed by every other citizen, and where he has not devoted his property to any public use, within the meaning of the law. The orders of the general and special terms of the supreme court should therefore be reversed, and the relators discharged. GRAY, J., concurs. ANDERSON v. How. ion. Oct. 22, 1889.) (116 N. Y. 336) MALICIOUS PROSECUTION-WILLFUL TRESPASS. Every one having the same right to build an elevator or warehouse that these defendants have, and upon its completion to employ it in the same business, if the rate of profit is above the average, capital, if allowed absolute freedom and legal protection, will flow into the business until there is enough invested to do all or more than all the work offered, and then, by the coin petition of capital, the rate of compensation would come down to the average. Such, at least, would be the tendency, and it could only be averted by combination among the owners of the property, which could not be long sustained in the face of perfect freedom to all to invest in, such undertakings. That they are expen- (Court of Appeals of New York, Second Divissive, and require the outlay of a large amount of money to build and maintain them, and that the warehouses now existing may have an advantage in location, does not, as has been shown, make them a monopoly, but simply tends to make the inevitable result a trifle more slow in its approach than in other cases requiring a smaller outlay. If it be said that there is already a superabundance of elevators, more than can be or are used, and that some of them lie idle while others do the work, and they all share in the profit, if the profit exceed what the owners of the grain or those engaged in its transportation can afford to pay, the result will then be that the persons so engaged will cease from that kind of work, or else the owners of the elevators will reduce their charges. This reduction of charges will most surely take place before the owners of the elevators would allow the business to pass out of existence, provided the compensation after such reduction would enable them to realize the average rate of profit for their capital; while, if it would not, it would be conclusive proof that the business of transportation of grain or other commodities, where the boats were to be loaded or unloaded by elevators, could no longer be conducted with profit der Pen. Code N. Y. § 640, prescribing a penalty 1. In an action for a malicious prosecution unfor willfully severing from the freehold of another anything attached thereto, it appeared that plainplumbing in a stable; that after the work was tiff had been employed by defendant to do the done a dispute arose as to the payment therefor; that plaintiff went to the stable without the knowledge of defendant, picked the lock, and began to remove a portion of the plumbing; that the defendant discovered him, and commanded him to desist, but plaintiff continued his work. Held, that there was sufficient cause for the prosecution of plaintiff by defendant. 2. Under Pen. Code N. Y. § 640, providing a penalty for willfully severing from the freehold of another anything attached thereto, it is not necessary to show malice, but it is sufficient to show that the act was done intentionally and with de sign. HAIGHT, BRADLEY, and BROWN, JJ., dissenting. Appeal from city court of Brooklyn, gen eral term. This was an action for malicious prosecution, brought by Henry Anderson against Elisha M. How. On trial, the complaint was dismissed, and the judgment of dismissal was affirmed by the general term. Plaintiff appeals. Wm. Hughes, (James Troy, of counsel,) for | decisive of the question, to have regard appellant. J. C. & H. C. Smith & Koepke, mainly, if not altogether, to the evidence of (H. F. Koepke, of counsel,) for respondent. the plaintiff and his witnesses upon this, the trial of their case, and upon the trial before POTTER, J. This is an appeal from the the magistrate upon the criminal charge judgment of the general term of the city made by the defendant against him, which court of Brooklyn, affirming a judgment dis- was also introduced upon the trial of this acmissing the complaint upon the trial of the tion. The plaintiff was a plumber, and was action. The action was to recover damages employed as such by the defendant, who was for the malicious prosecution and arrest of engaged in building or fitting up a stable in plaintiff by the defendant. The arrest of the the city of Brooklyn, to do the plumbing for plaintiff was made under a warrant issued the same at an agreed price. The plaintiff upon the application and affidavit of defend- had finished his job, and surrendered the key ant, made March 16, 1885, charging the of the stable to the defendant, some two plaintiff with having willfully and mali- weeks before this difference arose between ciously broken the water-closet in a stable on them. The defendant had paid plaintiff the Vanderbilt avenue, between De Kalb and whole of the agreed price except $65. PlainWilloughby avenues, in the city of Brooklyn. tiff had demanded the balance, but the deUpon the trial before the magistrate the fendant had refused to pay it on account plaintiff was acquitted. The evidence intro- of a crack in the stone sill, done in plumbing duced upon the trial of the charge before the the sewer; at least, until he could see the magistrate was, with other evidence, intro- owner of the premises, for whom the defendduced upon the trial of this action. Upon ant, with his partner, had undertaken to do the whole evidence, the trial court dismissed the entire job. The conduct of the plaintiff the complaint upon the ground that the de- for which the defendant had made the comfendant had probable grounds to make the plaint and the arrest therefor occurred on the arrest, and that the defendant acted as a rea- morning of the 16th of March, 1885. No sonably prudent man should have done un-complaint was made by defendant in respect der the circumstances. It is manifest from this holding by the trial court that in its judgment the evidence fully justified the conduct of the defendant in making the complaint. Trials in actions of this character do not, ordinarily, need to proceed so far as was done in this case, as the burden is upon the plaintiff to show the want of probable cause, and malice, upon the part of the defendant; and unless the plaintiff's evidence establish the want of probable cause, and malice, the defendant will be entitled to a dismissal of the complaint. Thaule v. Krekeler, 81 N. Y. 428; Marks v. Townsend, 97 N. Y. 590. Another principle especially applicable to this class of cases is this: that, where there is no dispute about the facts, the question of the existence of probable cause, or, as gen-knowledge or consent of the defendant, and erally stated, the absence or want of probable cause, is a question for the court, and not for the jury. Bulkeley v. Keteltas, 6 N. Y. 384; Heyne v. Blair, 62 N. Y. 24, 25. The appellant insists upon this appeal that the trial court erred in deciding this question, and in dismissing the complaint, and in refusing to submit that question to the jury for decision. That brings us to the consideration of the evidence; and, in considering the evidence, we are to observe as a guide another rule of law applicable to this class of cases, viz.: "What constitutes probable cause does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but upon the prosecutor's belief, based upon reasonable grounds. Bacon v. Towne, 4 Cush. 238." Fagnan v. Knox, 66 N. Y. 525, 528. In considering the evidence for the purpose of determining whether there was probable cause or not, it would be at least liberal towards the appellant, and perhaps entirely to any part of the job of plumbing, and no words ever passed between the parties as to any defect or change in the work in any respect, except as to the broken sill. The plaintiff had procured an action to be commenced, by summons issued on the 7th day of March, against the defendant, to recover the $65 balance of the contract price for plaintiff's plumbing, and returnable at 8 o'clock A. M. on the 16th of March. Issue was joined in that action on the 16th, but not till after plaintiff was arrested, and brought before the magistrate, for his alleged misconduct at an earlier period than the 16th. On the 14th of March plaintiff had sent his servant to this stable. He went into the stable, and commenced taking out the closet, without the when defendant was informed of his be- At this stage I Com. attachments of the water-closet, had been | titled to respectful consideration as expressive put in by direction of the defendant, and of the meaning given those words by the codwere completed. This evidence was sub-ifiers and the legislature. Now, if we turn stantially given by the plaintiff and his wit- to 2 Rev. St. marg. p. 693, we find that this nesses. I have forborne to refer to the evi- offense was defined in the same terms as in dence of defendant and his witnesses. section 640, subd. 3, of the Penal Code, which think it would have served to bring out more is said to be a re-enactment or substitute for fully the transaction, but I desired to present that provision of 2 Rev. St. § 15, subd. 4, it just as it appears from the testimony marg. p. 693. The words "malicious" and of plaintiff and his witnesses. The situa- "willful," as used in the provisions of the tion which confronted the defendant when Revised Statutes, supra, and the Penal Code, he came upon the scene was this: that the have not the same or equivalent meaning; .plaintiff and his servant, after having been for the word "willful" is employed in some sent away and forbidden the Saturday night of the provisions defining misdemeanors, previous, had on the following Monday morn- called "willful trespass," the word "maliing returned to the stable, and procured a cious" in defining others, and the word "unlocksmith to pick the lock upon the door of lawful" in defining still others. The lanthe room containing the water-closet, and, guage of the decisions of courts and textwithout the knowledge or permission of the writers upon criminal law make a marked defendant, were proceeding to remove the distinction in the meaning of the words "willsetting or box, and the attachments of the ful" and "malicious;" and that difference, I same, and of the water-closet, to the room in think, is in harmony with the definitions of which they had been placed. The plaintiff those as given, Section 718, Pen. Code. persisted in the work of removal in spite of Bishop, in his work upon Criminal Law, the remonstrance and efforts of the defend- says: "A Massachusetts case decides that the ant to prevent it. word maliciously,' in the statute against Now, the offense charged in the complaint malicious mischief, is not sufficiently defined and affidavit of the defendant, and upon as the willfully doing of any act prohibited which the warrant of arrest was issued, and by law, and for which the defendant had no the plaintiff was arrested, is "that plaintiff | lawful excuse,' but it means more. did willfully and maliciously break the water- v. Walden, 3 Cush. 558." Section 429. The closet in the stable," etc. This offense is same author says: "The words willful and defined, and the punishment therefor pre- malicious' cover together a broader meanscribed, in section 640, of the Penal Code. ing than the word willful' alone." Section It consists in the willful severance from the 429. "Willfully' sometimes means little freehold of another anything attached there- more than plain intentionally' or designedto; and the term "willful" was defined in ly.'" Section 428. COLT, J., in Com. v. subdivision 1, § 718, as importing a purpose Williams, 110 Mass. 401, in discussing the or willingness to commit the act to which difference in the meaaing of "willful” and it refers, and does not require any specific in- "malicious," says: "The injury must not tent to violate law, to injure another, or only be willful,--that is, intentional and by to acquire any advantage. "Maliciously" design, as distinguished from that which is imports an evil intent or wish or design to thoughtless or accidental,-but it must, in vex or annoy another person, or injure an- addition, be malicious in the sense above other person. Subdivision 3, § 718. Subdivision 3, § 718. But given;" that is, an act or injury done, either it seems malice is not an element of the of- out of a spirit of wanton cruelty, or black or fense defined in section 640, subd. 3; and diabolical revenge. Willfulness is implied in the insertion of the word "maliciously" in- maliciousness, but maliciousness is not imto the complaint was surplusage and unes-plied in willfulness. "To make willful' imsential. While I entirely concur with my Brother Haight that section 640, subd. 3 Pen. Code, does not apply to a person who severs with the consent of the owner, or who has a legal right to sever, it seems to me, with all deference to his views, that his reasoning from such a premise is not applicable to the undisputed facts in this case. While it is true that the definitions of "willful" and "willfully," as contained in section 718, were left out by the amendment of that section by chapter 384, Laws 1882, their omission does not change the meaning of those terms, but leaves the meaning to be ascertained and determined in the light of the decisions of the courts and the text-writers upon that subject. The definitions as contained in section 718, Pen. Code, and left out by the amendment of 1882, especially as that definition was not changed in any respect, will at least be en ply both a wrong and malice is to give to it a force and effect beyond what it will bear, or what can be maintained, either in common acceptance or its legal import." Com. v. Kneeland, 20 Pick. 245. It seems to me very clear that maliciousness is not an element in the offense defined in subdivision 3, § 640, Pen. Code. It only requires to constitute that offense that the act should be done willfully; that is, intentionally and with design. Probable cause which will justify a dismissal of the accusation is defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offense with which he is charged. Foshay v. Ferguson, 2 Denio, 617; Carl v. Ayers, 53 N. Y. 14-17. It seems to me beyond question that the evidence established not only There that the defendant was within the protection | through the carelessness of the plaintiff in of this rule, and, further, that the plaintiff putting in the sewer, and that he would not was guilty of the charge; in other words, that pay until the owner had returned from the the evidence upon the part of the plaintiff south. No other objection to the work apshowed not the want of the probable cause pears to have been made at that time. required to maintain this action, but the ex- after an action was brought by the plaintiff istence of a real cause sufficient, upon a trial against the defendant and one Miller, comfor the offense, while unexplained, to convict posing the firm of Miller & How, before a the plaintiff of the offense with the commis-justice of the peace, to recover the balance sion of which the defendant had charged him due upon the contract. The defendants anbefore the magistrate, and sufficient to con-swered, denying their liability upon the stitute a reasonable ground of suspicion, supported by circumstances, and sufficient to warrant a cautious man in the belief that the offense has been committed, etc. ground that the materials furnished were not according to the specifications, and that the work was not done according to the contract. The plaintiff had put in the barn a watercalled for "a Hand water-closet." The one put in was a Hopper closet. On the Saturday before the arrest the plaintiff sent one Wedge, a plumber in his employ, to change the closets, and put in the kind called for by the specifications. Wedge went to the barn, and had the closet partially taken out, when the defendant came in and "asked him what This disposes of the main and the only ques-closet. The specifications under the contract tion in the case which the appellant's counsel has seen fit to discuss in his able brief. There were one or two exceptions taken by plaintiff upon the trial which are not noticed by appellant's counsel, and which I think do not require to be noticed by this court. I think the judgment should be affirmed, with costs. FOLLETT, C. J., and VANN and PARKER, he wanted. JJ., concur. HAIGHT, J., (dissenting.) This action was brought to recover damages for an alleged malicious prosecution. It appears that on the 16th day of March, 1885, the plaintiff was arrested upon the complaint of the defendant, charging him with having willfully and maliciously broken the water-closet in a stable on Vanderbilt avenue, in the city of Brooklyn; that a trial was had before a court of special sessions held by FREDERICK S. MASSEY, police justice, and that the plaintiff was acquitted, after which this action was brought. After the testimony had been closed upon the trial herein, the defendant's counsel moved for a dismissal of the complaint, which was granted, and the plaintiff excepted. The question to be determined upon this appeal is whether the plaintiff has established that there was a want of probable cause for such arrest. He said he wanted to change the water-closet." The defendant then turned him out of the barn, and refused to allow him to proceed with the work. On the next Monday morning the plaintiff, with another plumber, went to the barn for the purpose of completing the change of closets. They took with them a new closet, such as was called for by the specifications, and laid it upon the floor. The door of the closet being locked, the plaintiff procured a locksmith to come and unlock it. He then took ont the closet that was in, at which time the defendant appeared with a policeman and three or four. other men. The plaintiff testified that the defendant asked what right he had to do that, and that he answered that he was making the change necessary. Thereupon the defendant picked up the new closet that was lying upon the floor, and threw it out. As he did so, the plaintiff rushed to catch the closet, and the defendant called upon the policeman to arrest him, which he did, and took him to the station-house, and from thence to the police court. It appears that one Cox was the owner of the premises in question; that the defendant is a carpenter and builder, and, in company There is some conflict in the evidence as with one Miller, had a contract from Cox to to what took place at the time the arrest was build a stable; that the defendant and Miller made. Our statement of it is, in substance, had entered into an agreement with the plain- that given by the plaintiff and his witnesses. tiff, a plumber, to do the plumbing work in The defendant, however, concedes, in his the barn for the sum of $190; that the plain- testimony, that he saw the new closet-pan tiff finished his work about the 1st of March, there, and that he undertook to carry it out 1885, and was paid upon his contract the of the barn. He would not admit that he sum of $125, leaving a balance unpaid of knew what it was there for, and yet we think $65; that he demanded this amount of the he did understand its purpose, and what the defendant, who refused to pay the same un- plaintiff was attempting to do, and that this til the owner, Cox, should see the work, and is apparent from the following quotations be satisfied with it; that thereupon the plain-from his testimony: "Question. Now, when tiff procured Cox to come and examine the you went there, you saw two water-closet work, but Cox did not state whether he was satisfied with it, but told the plaintiff that he must look to the builder for his money; that the defendant was subsequently again requested to pay, and he stated that the stone forming the sill of the door had been cracked pans, did you not? Answer. I did. I knew certainly. I knew there was only one there before. Q. Well, you stooped to take one of them, and threw it out, did you not? A. I stooped to carry it out. Q. Well, it was the one that had not been there before, was it not? |