The opinion
Blake, C. J.
(dissenting) — Until the legislature gives specific authority to officers to break into a dwelling fiouse to execute a writ of replevin, I cannot acquiesce
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in a decision which sustains their right to do so. And, in view of the distinction always maintained in English and American jurisprudence between the
dwelling house
and other buildings, I think the court is not warranted in holding that the legislature of 1854, in enacting Rem. Rev. Stat., § 714 [P. C. § 8428], ever contemplated that the term “building” would ever be construed to mean
dwelling house.
Our statutes defining first and second degree burglary (Rem. Rev. Stat., §§ 2578, 2579 [P. C. §§ 8771, 8772]) and first and second degree arson (Rem. Rev. Stat, §§ 2572, 2573 [P. C. §§ 8752, 8753]) recognize and apply this traditional distinction between “the dwelling house” and “a building.” It is of the very spirit of our law that the dwelling house may not be entered except under
judicial process
issued upon a showing of probable cause.
Heretofore, it has been deemed an almost universal rule that an officer could not force entry into a dwelling house to serve process or seize property under an execution or a writ of attachment in the absence of specific legislative authority so to do. Freeman on Executions, § 256;
Ilsley v. Nichols,
29 Mass. (12 Pick.) 269 , 22 Am. Dec. 425 ;
State v. Armfield,
9 N. C. 246 , 11 Am. Dec. 762 ;
Calvert v. Stone,
10 Monroe (Ky.) 152;
People v. Hubbard,
24 Wend. (N. Y.) 369, 35 Am. Dec. 628 ;
Swain v. Mizner,
8 Gray (Mass.) 182 , 69 Am. Dec. 244 ;
Snydacker v. Brosse,
51 Ill. 357 , 99 Am. Dec. 551 ;
Welsh v. Wilson,
34 Minn. 92 , 24 N. W. 327 ;
State v. Whitaker,
107 N. C. 802 , 12 S. E. 456 ;
Kelley v. Schuyler,
20 R. I. 432, 39 Atl. 893 , 78 Am. St. 887, 44 L. R. A. 435;
Foley v. Martin,
142 Cal. 256 , 71 Pac. 165 , 75 Pac. 842 ;
Hillman v. Edwards,
28 Tex. Civ. App. 308 , 66 S. W. 788 ;
Singer Sewing Mach. Co. v. Mendoza,
62 S. W. (2d) (Tex. Civ. App.) 656.
These were all cases in trespass to recover damages
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from the officer executing the process — the process varying in different instances: summons, execution (general or specific), attachment, and replevin. What may be called the leading case in this country is
Ilsley v. Nichols, supra,
the opinion being written by Chief Justice Shaw. The defendant, deputy sheriff, forced the doors of plaintiff’s dwelling house to execute a valid writ of attachment. The contention was made that damages could be recovered only for the forcible entry and not for the seizure of the property, inasmuch as the writ of attachment was valid. Rejecting the contention, the chief justice said in part:
“No question is made of the plaintiff’s right to recover; but the question turns upon the amount of damages. . . .
“The circumstances to be taken into consideration are, that the goods were in a dwellinghouse, and were attached in consequence of the house being broken open by forcing the outer door, that the direct and avowed purpose of breaking open the house, was to make an attachment, and that this was done against the will and contrary to the express prohibition of the owner. It is clear, from all the authorities, and wholly undisputed as a rule of law, that the act of thus breaking the outer door of a dwellinghouse, is unlawful. The goods were attached in pursuance of a previous design, and through the medium of this unlawful act, and could not have been otherwise attached; and the question is, whether the attachment was valid, and constituted a legal lien on the goods. . . .
“An officer, having a valid writ, if he does not pursue the authority given him by his writ, and the rules of law in the execution of his duty under it, is a trespasser, in the same manner as if he had no writ; as if he takes goods not belonging to the debtor, or goods exempted by law from attachment, trespass lies. This proceeds on the ground that the writ affords him a definite and limited authority only, regulated by law; and the legal justification of his acts is coextensive with his legal authority, and he has no protection when acting be
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yond the scope of that authority. The authority is given upon this restriction and condition, that it shall not be abused or exceeded, or colorably used to effect an unlawful purpose. To accomplish this the rule is well established, that where an authority given by law is exceeded, the party loses the benefit of his justification, and the law holds him a trespasser
ab initio,
although to a certain extent he followed the authority given. The law will operate retrospectively to defeat all acts, thus done under color of lawful authority, when exceeded; and
a fortiori
will it operate prospectively to prevent the acquisition of any lawful right, by the excess and abuse of an authority given for useful and beneficial purposes.
“But upon more general grounds, assuming the question to be open for examination, both upon considerations of principle and policy, it appears to the Court, that it would be dangerous to establish the rule, that although a man’s house is his castle, his asylum, and it shall not be forced for the purpose of serving civil process, and upon a balance of the considerations of expediency, the law holds it wise to allow this exemption in favor of the peace and security of families by day and by night, even though the service of civil process is thereby delayed or defeated, yet that a legal right of property may be acquired by the direct violation of this settled and salutary principle of law.
Such a decision would afford a direct encouragement to the rash and turbulent creditor, to violate the rules of law and do that which might lead to an open breach of the peace, by giving legal effect to his attachment, if he can procure force enough to make one by unlawful and violent means.
It is to be recollected that an officer, whilst acting within the scope of his authority, and in conformity to the rules of law, is not only entitled to the protection of the law, but has power to command the ássistance of all other citizens; and the law extends the like protection to them. But it would be placing such officer and his assistants in a most critical and questionable predicament if they could be employed in making a lawful attachment by unlawful means. Should the officer refuse to make an attach
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ment under these circumstances, even where the doors are forced by others for the purpose of enabling him to enter and make the attachment, would he be responsible to the creditor for the non-feasance? Would citizens be liable to damages, or to punishment, were they to refuse to aid an officer who should undertake to make such attachment? Should resistance be made from within, and force be repelled by force, would not the assailants be acting unlawfully, would not the owner and inmates of the house be acting lawfully? Should death ensue, would it not be murder in the assailants? But it is unnecessary to multiply questions with a view to suggest all the possible ill consequences which must arise, from holding that the act is wrongful, and yet that a valid right can be acquired by means of such wrong act. The consequences must be obvious. If such a transaction can take place in the day time, it may in the night. If the owner of the house may defend by force himself, he may call in the assistance of others. If his house is assailed by force, he may use adequate force to repel it. To such a conflict of rights and powers, we think the establishment of the proposition contended for by the defendants would directly lead. They can only be avoided by either legalizing the attachment and the means of effecting it, by authorizing the officer to break open the doors of a dwelling-house to serve civil as well as criminal process, and by placing within his reach a sufficient force to enable him to accomplish it, by holding all resistance unlawful, and by thus throwing around the officer and his assistants the broad shield of the law for their protection; or else, by holding that when the means are unlawful, all the declared objects and purposes to be accomplished thereby are alike unlawful, and that no legal right can thereby be acquired, either by the officer himself or by his employers. But as it is a well settled rule of law, established upon considerations of policy, that the doors of a dwellinghouse cannot lawfully be forced for the service of civil process, we think it follows, as a necessary legal consequence, that no valid attachment can be thereby made.” (Italics mine.)
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In commenting on
Keith v. Johnson,
1 Dana (Ky.) 604, 25 Am. Dee. 167, Freeman, in his work on Executions (3d ed.), Vol. Ill, p. 2457, says:
“It has been held that he [the sheriff] may, after first demanding admittance, break into the defendant’s dwelling, whether the outer doors be fastened or not. The more recent decisions, however, indicate that,
in the absence of statutes specially authorizing it, an officer is in no case warranted in breaking into a dwelling for the purpose of serving any civil process,
and hence that he may not lawfully do so under an execution in replevin.” (Italics mine.)
I think the judgment should be reversed and the cause dismissed.
Millard, Main, and Beals, JJ., concur with Blake, C. J.