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extent that a mere notice or summons to, to provide for, the establishment of munici. appear before a magistrate, does not amount pal courts for the enforcement of purely to an arrest, even though accompanied by an municipal ordinances. And whilst the proadmonition to the person so notified or sum- vision is not altogether as clear as it might moned that he is to consider himself under be, it is yet clear enough, and it is now enarrest, and even though complied with by tirely too late to question an authority, absuch person. And to the extent that Thomas solutely necessary for the proper policing of v. Henderson, 125 La. 292, 51 So. 203, con- municipalities, promptly exercised by the flicts with this holding, it is to be considered General Assembly, and openly acquisced in overruled.

by all for above a quarter of a century. III.

[3] (B) The proceedings before the mayor

whilst informal were none the less perfectly As to the alleged false imprisonment: [2] It is contended that the imprisonment So. 92; Gammage v. Mahaffey, 110 La. 1008,

valid (State v. Fisher, 50 La. Ann. 45, 23 of Mrs. Berry by the mayor amounted to 35 So. 266), and the mayor had jurisdiction false imprisonment, for these reasons:

over the offense charged. It was therefore in(1) That said mayor had no judicial power; cumbent on the accused, if they wished to because section 29 of act 136 of 1898, pp. 224, challenge the constitutionality or legality of 238 (establishing a “mayor's court" in cities, the town ordinance, to do so then. They cantowns, and villages, incorporated under the provisions of that act, with jurisdiction over vio- not be permitted to remain silent when they lations of municipal ordinances, and empower should have spoken, and, after sentence has ing the mayor to try all breaches of said or- been imposed and fully executed, to mulct in dinances and impose the fines and imprison- damages those whose duty it was to enforce ments therein provided), is violative of article the ordinance as it stood, and who were with84 of the Constitution of 1898, under which out right on their part to question its validsaid statute was passed.

ity. (2) That the ordinance under which plaintiffs were convicted is unconstitutional and il- New Orleans, 25 La. Ann. 460, this court

In Factors & Traders’ Ins. Co. v. City of legal on various grounds.

(3) That said ordinance did not authorize the reasoned thus: mayor to inflict imprisonment except as an al "It is contended that it (this statute] never ternative for the nonpayment of a fine, and had any life because it was unconstitutional; consequently said mayor exceeded his authority that an unconstitutional law is no law, and when he imprisoned Mrs. Berry without the therefore must be considered as never having alternative of a fine.

been written. This is a fallacy. The rule of

universal application is that all laws are pre(A) Article 84, Const. of 1898, provided sumed to be constitutional until the contrary is that the judicial power should be vested in decided. Courts do not assume to themselves a Supreme Court, Courts of Appeal, district the prerogative of deciding on their own mocourts, justices of the peace, “and in such tion, that a law under which rights are claimed other courts as are hereinafter provided or duties are imposed is unconstitutional. To for." And article 96, thereof, contained the authorize them to do this the matter must be

directly put at issue by the parties litigating following clause:

before them. Rights can be acquired under a “No judicial powers, except as committing law which may be determined to have been unmagistrates in criminal cases, shall be con- constitutional and pains and penalties be avoidferred on any officer other than those mention- ed by those who justify their acts as having ed in this title, except such as may be neces- been committed under a law, however that law sary in towns and cities.

(Italics may have been subsequently declared to have ours.)

been unconstitutional. If a piece of property

is sold under a fi, fa., issued in the case of A v. The convention which adopted the Con- B, and purchases it, if it should thereafter stitution of 1898 was called by the General be determined in a litigation between D and C Assembly elected in April, 1896, for a term that the law under which A obtained his judgof four years, and continued in office until ment against B was unconstitutional, would B 1900 by the Constitution of 1898. See Sched be entitled to get back his property from C? ule (art. 325, par. 5). See Act 52 of 1896, als in criminal cases, and A, being indicted for

If the Legislature passed a law regulating tri

murder, was tried under that law, found guilty, The second session of that General Assentenced, and was hung, and, in the case of sembly was begun a few days after the con- B, tried before the same tribunal for the same vention adjourned. See ordinance, post- offense, B's counsel should, after conviction, and poning the session of the General Assembly, on a motion in arrest of judgment, convince the annexed to that Constitution.

judge that the law under which he was trying It is well known that more than a score of the case was unconstitutional, and the prisoner the members of the convention were also be discharged, would the sheriff who had hung members of the General Assembly, and it position contended for be correct that an un.

A be liable to be punished? Certainly, if the was never doubted by the members of that constitutional law is ipso facto null and void, General Assembly, nor by any one since, that for the killing would have been unlawful; it the clause in article 96, italicized above, ful-would have been willful, and would have been ly authorized, and was particularly intended perpetrated upon a reasonable being, who was,

p. 85.

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(102 So.) when the killing was done, in the peace of the such fine and costs of prosecution may be imcommonwealth. Such a result, 80 monstrous, prisoned in the village jail at hard labor at is only to be avoided by adhering to the rule the discretion of the court having jurisdiction that to escape the penalties inflicted by a law, thereof." or to avoid responsibilities imposed by a law, upon the ground that it is unconstitutional, The complaint of Mrs. Berry is, as aforeits unconstitutionality must be distinctly al said, that she was not given the alternative leged before the penalty is imposed or the re of fine or imprisonment in accordance with sponsibility is determined. [Italics ours.] ". the provisions of the ordinance, but given a

straight sentence of imprisonment for 24 In Dwight v. Rice, 5 La. Ann. 580, it was hours (and actually detained 2 hours). held that the commissioners of an election

It is clear the mayor erred. The ordiwho act in good faith under an act of the

nance authorized only the imposition of a Legislature, prescribing the mode of conduct. fine, with imprisonment only in default of ing elections, are not responsible in damages

payment thereof.
for rejecting a vote under that act, although

The trial judge says:
the law upon subsequent investigation be-
fore the courts should be pronounced uncon-

“There is not the least evidence in the recstitutional.

ord showing or tending to show that either the In the course of the opinion the court said: mayor or his constable acted in any way other

than in absolute good faith, and in the honest "The condition of a public officer would be belief that they were rightfully performing their hard, indeed, if, while he followed the very dic- public duties.” tate of a statute, believing it to be constitutional, and which had not been the subject of judi The mayor testified as follows: cial investigation and decision, he should be

"Question: Did you read the ordinance over condemned to pay damages for so doing, even

that day? Answer: Yes. if (because) the statute should be subsequently

“Question: Don't you know that that ordi. considered unconstitutional by the judiciary."

nance gave you no authority to send any one to But it would be otherwise had the commis- jail without giving them first an opportunity to

pay a fine, and in default of fine to send them sioners acted “maliciously and without just to jail. Answer: I overlooked it. ground.” Bridge v. Oakey, 12 Rob. 638. See,

"Question: You admit the sending her to jail also, same case, 2 La. Ann. 968.

was not authorized? Answer: I thought at the We quote from this case (Judge Martin's time I was right; after, I found out I was last opinion) to show that the sole basis for wrong.” à cause of action against a judge is malice. Thus:

We are satisfied, as was the district Judge,

that this was an honest mistake. "The counsel of the defendant and appellee

But in one sense the mayor exceeded his has likened the case of his client to that of a judge who is not responsible in damages for jurisdiction; that is to say, he imposed a bis judicial opinions. To this it was replied penalty unauthorized by the ordinance, and that inspectors of elections are not judges, therefore in excess of his powers. But it is and that, although the latter may not be an

none the less true that in imposing that swerable in damages for erroneous judgments, sentence he was acting judicially and withthey may be, when the injury they have inflicted out malice. But, as he is only an "inferior does not proceed from error, but from malice. magistrate," the question arises whether he "The plaintiff's counsel is fully supported by is liable in damages for his error in inflictthe case of Jenkins v. Waldron, 11 Johnson (N. Y.) 114, 6 Am. Dec. 359, which is one in ing a penalty beyond that authorized by the point, and the grounds on which it was decided, ordinance, or is he protected by his judicial conclusive." (Italics ours.)


In Bore v. Bush, 6 Mart. (N. S.) 1, a jusIn the case before as there is no evidence tice of the peace had tried and condemned whatever that the defendant mayor acted without a jury a free man of color. The with malice; on the contrary, the evidence court held that, as the offense was triable shows that he acted with the utmost good only by jury and the justice had no right to faith and fairness.

summon a jury, he was acting beyond his (4) (C) The pertinent parts of the ordi- jurisdiction in taking cognizance thereof, nance under consideration read as follows: and that, notwithstanding he was acting

"Section 1. Whoever shall in this village "according to the best of his understanding,
willfully disturb the peace of another by violent he was none the less liable for false impris-
or tumultuous, offensive or obstreperous con- onment.
duct or carriage, or by loud or unusual noises, In Lafon v. Dufrocq et al., 9 La. Ann. 350,
or by profane, obscene or offensive language, it was held that a mayor and his constable,
calculated to provoke a breach of the peace whose court was organized under an uncon-

* shall be guilty of disorderly conduct.stitutional law, were liable in damages for "Section 4. Any person convicted of disorder- false imprisonment “under color of authority ly conduct as defined in this ordinance shall be which they did not possess," although acting punished by a fine of not less than $5 nor ex

in good faith and believing themselves ceeding $100, and in default of payment of clothed with due authority under the act of

the Legislature. Their good faith was con-, vested in him by law, ought in general to be prosidered only as tending to mitigate the tected against an action for damages arising damages. They were held bound to take no- from an erroneous exercise of such discretion, tice of their want of jurisdiction ; i. e., of the

"With us, justices of the peace in the country unconstitutionality of the law under which towns, and wards of country parishes, are mostthe court was organized (as to which, how-ly men without legal learning. In criminal mat

ters they are often called upon to act upon ever, see Factors' & Traders’ Ins. Co. v. sudden emergencies, and they have not time to City of New Orleans, 25 La. Ann. 460, and consult men learned in the law as to the form Dwight v. Rice, 5 La. Ann. 580, cited supra). of their proceedings. The interest of the public

In Estopinal v. Peyroux, 37 La. 477, this requires that they should act promptly; now, court said:

to hold that they shall be responsible in dam“The rule, as settled in our jurisprudence, is ages for errors of judgment is to destroy their that in order to claim immunity for errors

efficiency and prevent the best men from acgrowing out of his official acts and judicial

cepting the office. functions, a justice of the peace must not only in a criminal prosecution against two justices,

“Lord Mansfield said, one hundred years ago, show that he had jurisdiction of the matter brought before him, but also that he acted in Young and Pitts, 'If their judgment is wrong, the premises within the limits of his judicial yet their heart and intention pure, God forbid authority and of his jurisdiction.” Citing: Bore that they should be punished; and he declared v. Bush, 6 Mart. (N. S.) 1, supra; and Pressen that he should always lean towards favoring v. Cox, 2 Mart. (N. S.) 631; Buquet v. Wat-them unless partiality, corruption or malice kins, 1 La. 131; Maguire v. Hughes, 13 La. in the same case, Then, the sole discretion being

shall clearly appear.' Mr. Justice Wilmot said, Ann. 281, infra.

in them, the rule is invariable, that this court In Dressen v. Čox, 2 Mart. (N. S.) 631, the will never interpose to punish a justice of the defendant apparently had jurisdiction, and peace for a mere error in judgment.' 1 Burthe court said:

rows, 562, 563." "The defendant is not responsible for giving In State ex rel. Duffard v. Recorder, 45 an erroneous judgment in his character of jus-La. Ann. 1299, 14 So. 66, the court held that tice of the peace, admitting that which he rendered to have been such, and nothing on the the action of the recorder in refusing an record shows that he acted maliciously or cor- appeal to which the defendant was entitled, ruptly."

on the ground that the same issues had al

ready been decided by the Supreme Court In Buquet v. Watkins, 1 La. 131, the facts adversely to defendant's contentions, and were that, while defendant was acting and that defendant was seeking only to abuse the sitting as a justice of the peace, the plaintiff right of appeal, was "totally unwarranted.” was guilty of contemptuous conduct towards But the court said further: him, and in consequence thereof the defendant ordered plaintiff to be imprisoned for a that, even though he may have erred in declin

“The respondent judge in his answer contends space of two hours "in the jail, or stocks, ing to grant the appeal, the costs of the presthere being no jail in the parish.” The ent proceedings (mandamus) should not be court held that the justice had jurisdiction thrown upon him, as he acted in good faith acto try the question of contempt, and that cording to his best judgment and in the pub"a judge is not answerable civiliter, for an lic interest, as the same appeared to him, and as error in judgment, so long as he acts within a public officer. Although the action of the his jurisdiction"; but as the justice had au

city judge in this matter was unjustifiable, reathority to punish for contempt only by im- made to pay the costs—they must be borne by

sons of public policy protect him from being prisonment, not exceeding 24 hours, the court the city of New Orleans." (Italics ours.) reserved the question "whether the defendant, by ordering the plaintiff into the stocks, In all the foregoing it will be observed in a parish where there was no jail to con- that our court has laid no special stress fine him, so acted out of his jurisdiction as

upon any distinction between inferior magisto make him responsible in damages to plain-strates and judges of superior jurisdiction, tiff,” and the case was remanded for a new nor yet even between judicial and ministerial trial (because of the admission of some in- officers; but the cause of action has been competent evidence).

laid principally upon malice and corruption. In Maguire v. Hughes, 13 La. Ann. 281, It is true it was twice laid on want of juristhe court held that the error of a magistrate diction (Bore v. Bush, 6 Mart. (N. S.) 1, and (mayor, and ex officio justice of the peace), Lafon v. Dufrocq et al., 9 La. Ann. 350); in issuing a warrant without an affidavit, but in Buquet v. Watkins, 1 La. 131, the will not render him liable in damages if he court (Martin, J.) was not prepared to say acted in good faith and for what he deemed that the mere imposition (in good faith) of the public good. Citing: Buquet v. Watkins, a penalty beyond that provided for by law 1 La. 131; Bridge v. Oakey, 2 La. Ann. 968; was such acting out of the jurisdiction of the Dwight v. Rice, 5 La. Ann. 580.

court as authorize the infliction of damages, The court there said:

and in both Maguire v. Hughes, 13 La. Ann. "A public officer, whether judicial or minis- 281, and State ex rel. Duffard v. Recorder, terial, acting in good faith, under a discretion 45 La. Ann. 1299, 14 So. 66, the court said

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(102 So.)
that reasons of public policy were against W. B. Kemp, of Amite, for appellant.
penalizing magistrates for mere errors of Percy Saint, Atty. Gen., M. J. Allen, Dist.
judgment in the discharge of their duties, Atty., of Amite, and Percy T. Ogden, Asst.
even though such error might be totally un- Atty. Gen., for the State.
warranted and unjustifiable.

In Ruling Case Law, vol. 11, p. 815, $ 28, it
is said:

THOMPSON, J. The accused obtained an "In the later cases a clear tendency has been order of appeal from a conviction for the evidenced to abolish altogether the discrimina- crime of having intoxicating liquors in his tion between judges of different rank, and to possession for beverage purposes in violation extend to justices of the peace and other lesser of Act 39 of 1921. He was sentenced to pay a judicial officers immunity from personal re

fine of $500, to serve 60 days in jail, and an
sponsibility for the correctness of their decisions additional term of one year in default of
and acts, to the same extent that it is granted
to judges of the superior courts.”

paying the fine and costs.
He has made no appearance in this court,

We find
Our conclusion, therefore, is that there is either by oral argument or brief.
no sound reason for holding inferior magis- only one bill of exception in the record which
trates to any greater accountability in the relates to the admission of certain testimony
exercise of their functions than the judges over the objection of the accused. The bill

is as follows:
of superior courts, and that where they have
exercised their functions in good faith, with-

"That the witness Clay Shaw being sworn on out malice or corruption, they should not be behalf of the state, while under direct examheld liable for errors of judgment, even in ination by the district attorney, started to tell respect to the extent of their jurisdiction, about finding some intoxicating liquor in an au

tomobile occupied by the defendant with others. or of their powers under the laws which they The defendant objected to this testimony until are called upon to enforce.

the search warrant was produced. Whereupon And for these reasons we think the judg- the district attorney asked the witness: 'Did ments appealed from should be reversed. you have a search warrant ?' The witness an

swered, 'No.' The defendant then made the Decree.

objection as follows: 'Defendant objects to the

testimony going to show any intoxicating liquor The judgments appealed from are there- | found in the automobile until the search warfore reversed, and it is now ordered that rant has been produced. Objects on the ground there be judgment in favor of the defendants, that it is in violation of the Bill of Rights of John Bass and John Fletcher, and against the Constitution of the United States and of the plaintiffs, Mrs. Louis Barry and Laus- the state of Louisiana to offer any testimony sard Dupuy, rejecting their demands at

that was procured by search without a search

warrant.' their cost in both courts.

It appears from the evidence attached to the bill that the officers had information to the effect that a carload of whisky was go

ing to be transported from the parish to (157 La.)

McComb City, Miss., and they arranged to No. 26590.

intercept the same. When the supposed

whisky car approached, the officer, Clay STATE v. WEAVER.

Shaw, turned his car crossways of the road,

and went on one side of the whisky car. (Supreme Court of Louisiana. Nov. 3, 1924.) One Ryals went on the other side, and they (Syllabus by Editorial Staff.)

proceeded to search the car. They found a

gallon jug and two quart bottles of whisky, Criminal law m394 – Evidence obtained by which they took possession of. search without warrant held admissible.

The objection was properly overruled. In In prosecution for possession of liquors for the case of State v. Aspara, 113 La. 940, 37 beverage purposes in violation of Laws 1921, So. 883, the court quoted with approval from No. 39, evidence of state's witness as to find- Underhill on Evidence, p. 59, as follows: ing intoxicating liquor in defendant's automo

'Incriminating articles may, if relevant, be bile was admissible, although such witness had

used in evidence against the accused, though no search warrant.

forcibly, irregularly, or illegally taken out of

his possession.'”
Appeal from Twenty-Fifth Judicial Dis-
trict Court, Parish of Tangipahoa; Robert

Again, in City of Shreveport v. Knowles,
S. Ellis, Judge.

136 La. 770, 67 So. 824, we said:

"It seems that for obtaining evidence against Albert Weaver was convicted of having him his premises were invaded. He says this intoxicating liquors in his possession for was illegal and entailed illegality upon the evibeverage purposes, and he appeals. Affirmed. dence thereby secured, making said evidence

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

102 50.-6

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inadmissible. Evidence is not rendered inad Percy Saint, Atty. Gen., James U. Gallomissible by having been secured in an illegal way, City Atty., of Shreveport, and Percy manner."

T. Ogden, Asst. Atty. Gen., for the State. To the same effect is the ruling in City of Shreveport v. Marx, 148 La. 31, 86 So. OVERTON, J. Defendant was prosecuted 602. And in a still later case, State v. Fleck- by affidavit before the city court of Shreveinger, 152 La. 337, 93 So. 115, we recognized port for having unlawfully in his possession the rule as laid down by Greenleaf as fol- intoxicating liquor, to wit, whisky', for bevlows:

erage purposes. The charge was preferred " 'It may be mentioned in this place that under Act 39 of the Legislature of this state though papers and other subjects of evidence for the year 1921. may have been illegally taken from the posses Defendant demurred to the charge on the sion of the party against whom they are offered ground that Act 39 of 1921, under which or otherwise unlawfully obtained, this is no valid objection to their admissibility. if they that it attempts to define a commodity, to

the charge was made, is unconstitutional, in are pertinent to the issue. The court will not take notice how they were obtained, whether wit, intoxicating liquor, and also to define lawfully or unlawfully, nor will it form an is

an offense, by reference to federal legislasue to determine that question.' Greenleaf op tion, in violation of section 18, art. 3 of the Evidence, vol. 1, § 254a."

Constitution of 1921, which section prohib

its the Legislature from adopting any system There being no other bill in the record, and or code of laws by general reference thereto, finding no error on the face of the record, but requires it to recite at length the severthe judgment appealed from is affirmed.

al provisions of the laws it may enact.

(1) As we have observed, whisky was the O’NIELL, C. J., is of the opinion that the particular liquor which defendant sentence is excessive and to that extent il. charged with having had unlawfully in his legal.

possession. This court has repeatedly held
that the act in question is not amenable to
the objection urged by defendant in his de-

murrer, at least, in so far as it denounces (157 La.)

as crimes the unlawful manufacture, sale, No. 26820,

and possession, etc., of the nine liquors (of STATE v. COPOLA.

which whisky is one), specifically designated

as intoxicating in section 8 of the act. (Supreme Court of Louisiana. Nov. 3, 1924.) | Among the decisions so holding may be cit

ed the following: State v. Coco, 152 La. (Syllabus by Editorial Staff.)

241, 92 So. 883; State v. Cleary, 152 La. 205, 1. Statutes 5l-Statute not invalid as at. 92 So. 892; State v. Anding, 152 La. 259, tempting to define commodity and offense by 92 So. 889; State v. Baker, 152 La. 257, reference to federal legislation. Act No. 39 of 1921, so far as it applies to 93 So. 582. We adhere to the ruling made

92 So. 889; State v. Brackins, 152 La. 445, whisky and other liquors specifically designated, in those cases on the question here submitis not violative of Const. 1921, art. 3, § 18, as attempting to define a commodity. (intoxicat- ted, and accordingly uphold the trial court ing liquor), and also an offense, by reference in overruling the demurrer, to federal legislation.

[2] The next bill of exceptions, necessary 2. Witnesses w2(1) Forcing defendant to

to consider, is one to the ruling of the court trial in absence of witness held violative of forcing defendant to trial. It appears that his constitutional rights in view of insufficien. defendant duly caused a subpæna to issue cy of return on subpæna.

for one Cole Watson, giving his address as Where officer, who had failed to make re 231 Peabody street, Shreveport, La. When turn on subpæna, swore at trial that he had | defendant's witnesses were called, Watson been unable to locate street address given, held, failed to answer. Defendant then asked that this was insufficient to disclose a dili. to see the return on the subpæna. The subgent inquiry, and defendant's constitutional guaranty of compulsory process for obtaining pæna was produced with no return whatever witnesses was violated when he was forced to

Defendant then refused to go to tri. trial.

al until a proper return should be made

or his witness produced. The court then, Appeal from City Court of Shreveport; over the objection of defendant, had the David B. Samuel, Judge.

officer to whom was given the subpoena for Frank Copola was convicted of violation amination, stated that he had not served

service sworn, and the officer, upon his exof prohibition law, and he appeals. Reversed

the subpæna, because he could not locate and remanded.

the street number mentioned in it. The Charles F. Crane, of Shreveport, for ap- court then ordered defendant to trial, aspellant.

signing as reason therefor that:
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


on it.

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