extent that a mere notice or summons to appear before a magistrate, does not amount to an arrest, even though accompanied by an admonition to the person so notified or summoned that he is to consider himself under arrest, and even though complied with by such person. And to the extent that Thomas v. Henderson, 125 La. 292, 51 So. 203, conflicts with this holding, it is to be considered overruled.

III.

As to the alleged false imprisonment: [2] It is contended that the imprisonment of Mrs. Berry by the mayor amounted to false imprisonment, for these reasons:

(1) That said mayor had no judicial power; because section 29 of act 136 of 1898, pp. 224, 238 (establishing a "mayor's court" in cities, towns, and villages, incorporated under the provisions of that act, with jurisdiction over violations of municipal ordinances, and empowering the mayor to try all breaches of said ordinances and impose the fines and imprisonments therein provided), is violative of article 84 of the Constitution of 1898, under which said statute was passed.

to provide for, the establishment of municipal courts for the enforcement of purely municipal ordinances. And whilst the provision is not altogether as clear as it might be, it is yet clear enough, and it is now entirely too late to question an authority, absolutely necessary for the proper policing of municipalities, promptly exercised by the General Assembly, and openly acquisced in by all for above a quarter of a century.

[3] (B) The proceedings before the mayor whilst informal were none the less perfectly

valid (State v. Fisher, 50 La. Ann. 45, 23 35 So. 266), and the mayor had jurisdiction So. 92; Gammage v. Mahaffey, 110 La. 1008, over the offense charged. It was therefore incumbent on the accused, if they wished to challenge the constitutionality or legality of the town ordinance, to do so then. They cannot be permitted to remain silent when they should have spoken, and, after sentence has been imposed and fully executed, to mulct in damages those whose duty it was to enforce the ordinance as it stood, and who were without right on their part to question its validity.

(3) That said ordinance did not authorize the mayor to inflict imprisonment except as an alternative for the nonpayment of a fine, and consequently said mayor exceeded his authority when he imprisoned Mrs. Berry without the alternative of a fine.

(A) Article 84, Const. of 1898, provided that the judicial power should be vested in a Supreme Court, Courts of Appeal, district courts, justices of the peace, "and in such other courts as are hereinafter provided for." And article 96, thereof, contained the following clause:

"No judicial powers, except as committing magistrates in criminal cases, shall be conferred on any officer other than those mentioned in this title, except such as may be necessary in towns and cities. (Italics ours.)

* * 99

The convention which adopted the Constitution of 1898 was called by the General Assembly elected in April, 1896, for a term of four years, and continued in office until 1900 by the Constitution of 1898. See Schedule (art. 325, par. 5). See Act 52 of 1896, p. 85.

The second session of that General Assembly was begun a few days after the convention adjourned. See ordinance, postponing the session of the General Assembly, annexed to that Constitution.

It is well known that more than a score of the members of the convention were also members of the General Assembly, and it was never doubted by the members of that General Assembly, nor by any one since, that the clause in article 96, italicized above, fully authorized, and was particularly intended

reasoned thus:

"It is contended that it [this statute] never had any life because it was unconstitutional; that an unconstitutional law is no law, and therefore must be considered as never having been written. This is a fallacy. The rule of universal application is that all laws are presumed to be constitutional until the contrary is decided. Courts do not assume to themselves the prerogative of deciding on their own motion, that a law under which rights are claimed or duties are imposed is unconstitutional. To authorize them to do this the matter must be directly put at issue by the parties litigating before them. Rights can be acquired under a law which may be determined to have been unconstitutional and pains and penalties be avoided by those who justify their acts as having been committed under a law, however that law may have been subsequently declared to have been unconstitutional. If a piece of property is sold under a fi, fa., issued in the case of A v. B, and C purchases it, if it should thereafter be determined in a litigation between D and C that the law under which A obtained his judgment against B was unconstitutional, would B be entitled to get back his property from C? als in criminal cases, and A, being indicted for If the Legislature passed a law regulating trimurder, was tried under that law, found guilty, sentenced, and was hung, and, in the case of B, tried before the same tribunal for the same offense, B's counsel should, after conviction, and on a motion in arrest of judgment, convince the judge that the law under which he was trying the case was unconstitutional, and the prisoner be discharged, would the sheriff who had hung

be liable to be punished? Certainly, if the position contended for be correct that an unconstitutional law is ipso facto null and void, for the killing would have been unlawful; it would have been willful, and would have been perpetrated upon a reasonable being, who was,

when the killing was done, in the peace of the commonwealth. Such a result, so monstrous, is only to be avoided by adhering to the rule that to escape the penalties inflicted by a law, or to avoid responsibilities imposed by a law, upon the ground that it is unconstitutional, its unconstitutionality must be distinctly al leged before the penalty is imposed or the responsibility is determined. [Italics ours.]".

In Dwight v. Rice, 5 La. Ann. 580, it was

held that the commissioners of an election who act in good faith under an act of the Legislature, prescribing the mode of conducting elections, are not responsible in damages for rejecting a vote under that act, although the law upon subsequent investigation before the courts should be pronounced unconstitutional.

In the course of the opinion the court said: "The condition of a public officer would be hard, indeed, if, while he followed the very dictate of a statute, believing it to be constitutional, and which had not been the subject of judicial investigation and decision, he should be condemned to pay damages for so doing, even if [because] the statute should be subsequently considered unconstitutional by the judiciary."

But it would be otherwise had the commissioners acted "maliciously and without just ground." Bridge v. Oakey, 12 Rob. 638. See, also, same case, 2 La. Ann. 968.

We quote from this case (Judge Martin's last opinion) to show that the sole basis for a cause of action against a judge is malice. Thus:

"The counsel of the defendant and appellee has likened the case of his client to that of

a judge who is not responsible in damages for his judicial opinions. To this it was replied that inspectors of elections are not judges, and that, although the latter may not be answerable in damages for erroneous judgments, they may be, when the injury they have inflicted does not proceed from error, but from malice. "The plaintiff's counsel is fully supported by the case of Jenkins v. Waldron, 11 Johnson (N. Y.) 114, 6 Am. Dec. 359, which is one in point, and the grounds on which it was decided, conclusive." (Italics ours.)

In the case before as there is no evidence whatever that the defendant mayor acted with malice; on the contrary, the evidence shows that he acted with the utmost good faith and fairness.

[4] (C) The pertinent parts of the ordinance under consideration read as follows: "Section 1. Whoever shall in this village willfully disturb the peace of another by violent or tumultuous, offensive or obstreperous conduct or carriage, or by loud or unusual noises, or by profane, obscene or offensive language, calculated to provoke a breach of the peace shall be guilty of disorderly conduct.

"Section 4. Any person convicted of disorderly conduct as defined in this ordinance shall be punished by a fine of not less than $5 nor exceeding $100, and in default of payment of

such fine and costs of prosecution may be imprisoned in the village jail at hard labor at the discretion of the court having jurisdiction thereof."

The complaint of Mrs. Berry is, as aforesaid, that she was not given the alternative of fine or imprisonment in accordance with the provisions of the ordinance, but given a straight sentence of imprisonment for 24 hours (and actually detained 2 hours).

It is clear the mayor erred. The ordinance authorized only the imposition of a fine, with imprisonment only in default of

payment thereof.

The trial judge says:

"There is not the least evidence in the record showing or tending to show that either the mayor or his constable acted in any way other than in absolute good faith, and in the honest belief that they were rightfully performing their public duties."

The mayor testified as follows:

"Question: Did you read the ordinance over that day? Answer: Yes.

"Question: Don't you know that that ordi. nance gave you no authority to send any one to jail without giving them first an opportunity to

pay a fine, and in default of fine to send them to jail. Answer: I overlooked it.

"Question: You admit the sending her to jail was not authorized? Answer: I thought at the time I was right; after, I found out I was wrong."

We are satisfied, as was the district Judge, that this was an honest mistake.

But in one sense the mayor exceeded his jurisdiction; that is to say, he imposed a penalty unauthorized by the ordinance, and therefore in excess of his powers. But it is none the less true that in imposing that sentence he was acting judicially and without malice. But, as he is only an “inferior magistrate," the question arises whether he is liable in damages for his error in inflicting a penalty beyond that authorized by the ordinance, or is he protected by his judicial capacity.

In Bore v. Bush, 6 Mart. (N. S.) 1, a justice of the peace had tried and condemned without a jury a free man of color. The court held that, as the offense was triable only by jury and the justice had no right to summon a jury, he was acting beyond his jurisdiction in taking cognizance thereof, and that, notwithstanding he was acting "according to the best of his understanding," he was none the less liable for false imprisonment.

In Lafon v. Dufrocq et al., 9 La. Ann. 350, it was held that a mayor and his constable, whose court was organized under an unconstitutional law, were liable in damages for false imprisonment "under color of authority which they did not possess," although acting faith in good and believing themselves clothed with due authority under the act of

inadmissible. Evidence is not rendered inadmissible by having been secured in an illegal manner."

To the same effect is the ruling in City of Shreveport v. Marx, 148 La. 31, 86 So. 602. And in a still later case, State v. Fleckinger, 152 La. 337, 93 So. 115, we recognized the rule as laid down by Greenleaf as follows:

"It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.' Greenleaf on Evidence, vol. 1, § 254a."

There being no other bill in the record, and finding no error on the face of the record, the judgment appealed from is affirmed.

O'NIELL, C. J., is of the opinion that the sentence is excessive and to that extent illegal.

(157 La.)

No. 26820.

STATE v. COPOLA.

Percy Saint, Atty. Gen., James U. Galloway, City Atty., of Shreveport, and Percy T. Ogden, Asst. Atty. Gen., for the State.

OVERTON, J. Defendant was prosecuted by affidavit before the city court of Shreveport for having unlawfully in his possession intoxicating liquor, to wit, whisky, for beverage purposes. The charge was preferred under Act 39 of the Legislature of this state for the year 1921.

Defendant demurred to the charge on the ground that Act 39 of 1921, under which the charge was made, is unconstitutional, in that it attempts to define a commodity, to wit, intoxicating liquor, and also to define an offense, by reference to federal legislation, in violation of section 18, art. 3 of the Constitution of 1921, which section prohibits the Legislature from adopting any system or code of laws by general reference thereto, but requires it to recite at length the several provisions of the laws it may enact.

[1] As we have observed, whisky was the particular liquor which defendant was charged with having had unlawfully in his possession. This court has repeatedly held that the act in question is not amenable to the objection urged by defendant in his demurrer, at least, in so far as it denounces as crimes the unlawful manufacture, sale, and possession, etc., of the nine liquors (of which whisky is one), specifically designated as intoxicating in section 8 of the act.

(Syllabus by Editorial Staff.)

1. Statutes 51-Statute not invalid as attempting to define commodity and offense by reference to federal legislation.

Act No. 39 of 1921, so far as it applies to whisky and other liquors specifically designated, is not violative of Const. 1921, art. 3, § 18, as attempting to define a commodity. (intoxicating liquor), and also an offense, by reference to federal legislation.

2. Witnesses 2(1) — Forcing defendant to trial in absence of witness held violative of his constitutional rights in view of insufficiency of return on subpœna.

Where officer, who had failed to make return on subpoena, swore at trial that he had been unable to locate street address given, held, that this was insufficient to disclose a diligent inquiry, and defendant's constitutional guaranty of compulsory process for obtaining

witnesses was violated when he was forced to trial.

ed the following: State v. Coco, 152 La. 241, 92 So. 883; State v. Cleary, 152 La. 265, 92 So. 892; State v. Anding, 152 La. 259, 92 So. 889; State v. Baker, 152 La. 257, 92 So. 889; State v. Brackins, 152 La. 445, 93 So. 582. We adhere to the ruling made in those cases on the question here submitted, and accordingly uphold the trial court in overruling the demurrer.

[2] The next bill of exceptions, necessary to consider, is one to the ruling of the court forcing defendant to trial. It appears that defendant duly caused a subpoena to issue for one Cole Watson, giving his address as 231 Peabody street, Shreveport, La. When defendant's witnesses were called, Watson failed to answer. Defendant then asked to see the return on the subpoena. The subpœna was produced with no return whatever on it. Defendant then refused to go to trial until a proper return should be made or his witness produced. The court then,

Frank Copola was convicted of violation of prohibition law, and he appeals. Reversed

and remanded.

officer to whom was given the subpoena for service sworn, and the officer, upon his examination, stated that he had not served the subpoena, because he could not locate