from the chief of police force in arresting the defendant in error and delivering him into the custody of the patrolmen, who conveyed him to the city prison in obedience to the chief's orders, they should not be held responsible for his subsequent imprisonment, nor for the omission to obtain the necessary warrant and bring him to trial. But the delivery of the plaintiff after his arrest, into the custody of another person, to be by him taken to prison, could not, we think, absolve the arresting officers from the duty required of them to obtain the writ necessary to legalize his further imprisonment. If it could, the imprisonment might with impunity be prolonged indefinitely by the change of custodians and places of confinement, at short intervals. The arrest having been made without warrant, it was necessary, in order to preserve the legality of that action, that the proper steps should be taken to prevent the further detention of the prisoner from becoming unlawful; for, as we have seen, unless those steps be taken, all legal protection for such arrest ceases, and the arresting officers become wrongdoers from the beginning, liable as such, equally with those by whom the unlawful imprisonment is continued. If the arresting officers choose to rely on some other person to perform that required duty, they take upon themselves the risk of its being performed, and unless it is done in proper time, their liability to the person imprisoned, is in no wise lessened or affected. There was no order of a superior officer in this case that did or could prevent the defendants who made the arrest from complying with the requirement of the law in the respect indicated nor excuse their omission to comply therewith. Judgment affirmed.

1097. DOWNS v. SWANN

COURT OF APPEALS OF MARYLAND. 1909

111 Md. 53, 73 Atl. 653

APPEAL from Circuit Court of Baltimore City; CHAS. W. HEUISLER, Judge.

Action by William F. Downs against Sherlock Swann and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ.

Harry B. Wolf, for appellant. Alonzo L. Miles and Luther Eugene Mackall, for appellees.

SCHMUCKER, J. The appeal in this case was taken from an order of the Circuit Court of Baltimore city dissolving a preliminary injunction theretofore issued by it. The injunction had been issued upon the filing of a bill of complaint to restrain the police authorities of Baltimore city from photographing and measuring the appellant, who

had been arrested and was detained by them upon a charge of embezzlement of public funds of the city. The defendant, having answered the bill, made a motion to dissolve the injunction. The motion was heard upon bill and answer, and the order dissolving the injunction was passed, and the appeal taken therefrom.

The substantial allegations of the bill are as follows: On March 30, 1909, the plaintiff, William F. Downs, who had for some years theretofore been a clerk in the office of the city register, was arrested by a city detective upon complaint of the register and locked up at the Central Police Station on the charge of embezzling $1000 of the money of the city. The police authorities were about to put Downs through the Bertillon system, consisting in part of having his photograph taken, the measurement of his head, height, age, color, and pedigree, together with his finger prints, in order that the record thereof might be preserved for the use of the police department, and it was their intention to take his photograph immediately after his preliminary hearing before the magistrate, and before his trial upon the charge of embezzlement. It is also alleged that there is a rogues' gallery in connection with the police department of the city, where are kept the pictures and photographs of criminals and notoriously bad men who have been tried and convicted of various offences in different jurisdictions, and that it was the custom of the police authorities to take the photographs of persons arrested for any violations of law; but it does not allege the existence of a custom to put the photographs of unconvicted persons in the rogues' gallery, or charge the defendants with a purpose to put Downs' picture there, but only with an intention to preserve it for the use of the department. It is further alleged that Downs, up until his arrest, enjoyed the confidence and esteem of his employer and associates, and that he will be irreparably injured if the police authorities are permitted to carry out their contemplated acts, which it is charged would constitute a violation of his personal liberty and constitutional rights, and that he is without adequate remedy at law. The appellees, as defendants below, answered the bill, admitting the facts. . . . And they further say that the practice of photographing and measuring persons so charged prevails in every large city of the country where proper police regulations are well established and enforced, and that when a prisoner is arrested, charged with a crime of the character charged against the plaintiff, who may be released upon bail, it is necessary, to the proper enforcement of police regulations and the securing of the prisoner for trial, that a full description of him should be had in order that, if he should undertake to become a fugitive from justice, the police and detective department may be in possession of such information as will enable them to have him identified, wherever he may be found; that the defendants are required in the proper discharge of their duties to run down and arrest offenders who may escape after having been released on bail, and that,

if they are not permitted to provide efficient means of identification of persons charged with offences, their efforts in that direction will become ineffectual and unavailing. Further answering, they say that it is not their practice to publish the photograph of a prisoner who has been arrested upon the first offence, or to place it among the photographs of well-known and established criminals, until and unless the prisoner whose photograph has been taken has either been convicted or has undertaken to escape and avoid the payment of his bail, and that such was not their purpose with reference to the plaintiff. . .

The precise question presented for our determination is whether the police authorities of Baltimore city may lawfully provide themselves for the use of their department of the city government, with the means of identification of a person arrested by them upon a charge of felony, but not yet tried or convicted, by photographing and measuring him under the Bertillon system. . . . In our opinion the photographing and measuring of the appellant in the manner and for the purposes mentioned, and the use of his photograph and the record of his measurement to the extent set forth in the answer by the police authorities of Baltimore city, would not constitute a violation of the personal liberty secured to him by the Constitution of the United States or of this State. As was said by the United States Supreme Court in Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620:

"The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from constraint, under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law."

A person suspected of the commission of a crime may lawfully be arrested by the sheriff or police, and held in custody until a preliminary hearing of the charge against him can be had before a magistrate, and he may then be committed to jail, or held to bail, for the action of the grand jury. Brish v. Carter, 98 Md. 445, 57 Atl. 210; Edgar v. Burke, 96 Md. 722, 54 Atl. 986. He may be exhibited for identification to the person injured by the commission of the crime, if it be one of violence, and we see no good reason why the police authorities may not be furnished with the further and more efficient means of his identification provided by the Bertillon process. The populous communities which now exist, and the modern facilities for swift and frequent communication and rapid transit, afford hitherto unknown facilities for evading arrest or fleeing from justice, which should be offset in the public interest by providing the agencies, charged with the duty of preserving the public peace and arresting persons reasonably suspected

of the commission of crimes, with the most efficient means of detecting and identifying them, consistent with the protection of the accused persons in the enjoyment of that "liberty regulated by law" to which they are entitled. Section 744 of the Baltimore city charter (Laws, 1898, p. 522, c. 123) confers upon the police many of the duties which at common law were incident to the office of sheriff. It makes it the duty of the police commissioners of the city, among other things, "to preserve the public peace, prevent crime, arrest offenders and protect the rights of persons and property," also to cause to be followed any person who the board have reason to believe intends leaving the city for the purpose of violating any laws of the state. The burden of those duties brings the board clearly within the category of the public agencies, which should be furnished with the most approved means of identification of probable wrongdoers, and it may be assumed that the Legislature in the imposition of the duties intended also to confer the incidental powers necessary to their discharge.

The right of the police authorities to employ the Bertillon process for the identification of convicted criminals has been recognized in most, if not all, of the jurisdictions in which the subject has received consideration, although several Courts and text-writers have either questioned or denied the right to subject to that process persons accused of crimes before their trial or conviction. Molineux v. Collins, 177

N. Y. 395, 69 N. E. 727, 65 L. R. A. 104; Schulman v. Whitaker, 117 La. 703, 42 South. 227, 7 L. R. A. (N. S.) 274; Itzkovitch v. Whitaker, 115 La. 479, 39 South. 499, 1 L. R. A. (N. S.) 1147, 112 Am. St. Rep. 272; People ex rel. Gow v. Bingham, 57 Misc. Rep. 66, 107 N. Y. Supp. 1011; People v. York, 27. Misc. Rep. 658, 59 N. Y. Supp. 418; Owen v. Partridge, 40 Misc. Rep. 415, 82 N. Y. Supp. 248; 1 Tiedeman on State and Federal Control of Persons and Property, p. 57. The question in the form in which it is now presented to us formed the subject of recent review in the case of State v. Clausmeier, 154 Ind. 599, 57 N. E. 541, 50 L. R. A. 73, 77 Am. St. Rep. 511, where it was held that a sheriff may lawfully take the photograph, measurement, weight, name, residence, place of birth, occupation, and personal characteristics of an accused person committed to his custody for safekeeping, if in his discretion it is necessary to prevent the escape of the accused, or to facilitate his recapture, if he should do so.

For the reasons mentioned in this opinion we will affirm the order appealed from. But we must not be understood by so doing to countenance the placing in the rogues' gallery of the photograph of any person, not a habitual criminal, who has been arrested, but not convicted, on a criminal charge, or the publication under those circumstances of his Bertillon record. Police officers have no right to needlessly or wantonly injure in any respect persons whom they are called upon in the course of their duty to arrest or detain, and for the infliction of any such injury they would be liable, to the injured person, in

the same manner and to the same extent that private individuals would be.

Order affirmed, with costs.1

1 [PROBLEMS:

Action against a deputy-sheriff for an arrest on execution. The execution was regular in form, under a magistrate's certificate; but it now appeared that it was invalid, the magistrate having been attorney for the creditor in whose favor the execution was issued. Is the officer liable? (1867, Chase v. Ingalls, 97 Mass. 524.)

Action against a sheriff for attachment of the plaintiff's steamboat on Lake Michigan, for a debt due for seaman's wages. The writ was issued under Wisconsin Laws, 1869, c. 184, giving a lien upon vessels for maritime debts; but it appeared that the law was unconstitutional, since only the Federal Government has admiralty jurisdiction over maritime liens. Is the officer liable? (1874, Campbell v. Sherman, 35 Wis. 103.)

The defendant was arrested by an officer who had an insufficient warrant and read it to the defendant. The defendant resisted. The officer had personal knowledge of the offence, and could have lawfully arrested without the warrant. Is the defendant liable for his act of resistance? (1905, R. v. Sabeans, 37 N. Sc. 223.)

The plaintiff is arrested for a supposed misdemeanor, and is afterwards released without entering any complaint or charge against him. Shall he sue in malicious prosecution or in false arrest? (1900, Richardson v. Dykedahl, 14

S. D. 126, 84 N. W. 486.)

(1901,

The defendant officer, in executing a warrant of execution to put the owner into possession of a house and to evict the wrongful occupant, used excessive harshness, and caused one of the evicted persons, who was ill, to become so exposed that he afterwards died in consequence. Is the officer liable? Bradshaw v. Frazier, 113 Ia. 579, 85 N. W. 752.) On a replevin writ against A's goods, may the officer justify an entry of B's house to find them, A's goods not being actually there? (1901, Gusdorff v. Duncan, 94 Md. 160, 50 Atl. 575.)

U. S. Revised Statutes, Sect. 3059: "It shall be lawful for any officers of the customs, . . . to go on board of any vessel as well without as within his district, and to inspect, search, and examine the same, and any person, trunk or envelope on board."

Sect. 3061. "Any of the officers or persons authorized to board or search vessels may stop, search and examine as well without as within their respective districts, any vehicle, beast or person on which or whom he or they shall suspect there is merchandise which is subject to duty or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession, or charge, or by, in or upon such vehicle or beast or otherwise, and to search any trunk or envelope wherever found in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandise on or upon any such vehicle, beast or person, or in any such trunk or envelope which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States whether by the person in possession or charge, or by, in or upon such vehicle, beast or otherwise, he shall seize and secure the same for trial."

Are the foregoing statutes constitutional? And what is the difference between the two sections?