¶1 (concurring).
¶2 I concur in the order reversing and remanding.
¶3 The first cause of action of the complaint nowhere shows that the defendants were acting as policemen nor that they were acting within their tour of duty as policemen, or in the performance of their duty, or even as purported policemen, or in a purported capacity of police officers. F'or aught that is shown the defendants were private citizens and may never have acted as police officers. Nor does it appear that the act of causing a complaint for robbing one Vivian Shealey, as charged in the second cause of action, was done in the course of or performance of the officers’ duty. Nor do the third and fourth causes of action reveal any hint that the acts alleged therein were performed in the course of the performance of duty of the defendants as police officers. In such case the defendants, in order to show that the condition precedent to the bringing of the action has not been performed, must by motion request inquiry be made into the question of whether or not the defendants were acting in the course of their duties as police officers and offer evidence to show that such was the case.
¶4 What was the evidence here shown? That Gerald Irvine, assistant to the City Attorney, knew the defendants “were acting in their official capacity at the time he [plaintiff] was detained.” (Italics added.) In the absence of a motion to strike this evidence as a conclusion it could stand as evidence but only as evidence of the fact purported to be testified to and that was that the defendants were acting as police officers at the time plaintiff was detained. The plaintiff was “detained” for a period of five days according to the allegation of the first cause of action. This is the only cause of action based on the detention. But a statement that a defendant was acting in his official capacity as a police officer during or at the time a plaintiff was detained is not evidence that the defendant arrested or detained or kept plaintiff imprisoned as part of, or in the *83 course of, or in performance of his duties as a police officer. In this case, defendants might, during the five days of detention, often have been acting as police officers, but, did they arrest, or were they keeping plaintiff in prison in performance of their duties, is the question for inquiry. Ordinarily we might give the evidence of Irvine the benefit of all its possible intendments, but in legislation as drastic as this, which requires a person at the very time of filing his complaint to file therewith an undertaking and thus place burdens upon him which may result in a practical prohibition against bringing any suit at all, the court should require definite and satisfactory evidence that the defendants at the time of the alleged wrongful acts were acting in the course of, or in performance of their duties in this sort of case.
¶5 At this time we are only concerned with the order dismissing the action and not with the sufficiency of the pleadings. It may well be that the legislature may constitutionally require suits against peace officers to be accompanied by a bond protecting them for costs, etc. The legislature evidently considered it good public policy to take from peace officers acting in line of duty, any fear of ultimately finding themselves mulcted with costs for defending suits against them arising out of or in the course of the performance of their duties, even in the light of the greater public policy of not hampering the free access to the courts of all individuals for the redress of alleged wrongs. I cannot say, nor is it now necessary to say, that this consideration would not be a valid basis for classification of actions as was accomplished by Chapter 148, Laws of Utah, 1937.