The special pleas appearing in this record were before the Supreme Court on the first appeal (192 Ala. 675, 69 So. 69), and the demurrers appearing in this record were interposed to these pleas on the first trial and were sustained by the court. On the former appeal, the rulings of the trial court on the demurrers were assigned as error. In disposing of the case, the court said:
"We have treated either generally or with particularity all of the propositions insisted upon in brief of counsel, and what has been said should be a sufficient guide for the trial court upon another trial."
The sufficiency of the pleas was not treated, and we assume from this statement in the opinion of the court that counsel for appellant did not then consider the assignments predicated on the rulings of the court on the demurrers to these pleas seriously. The case of Childers v. State, 156 Ala. 96,47 So. 70, was a prosecution for an assault and battery, and the only question decided in that case was: First, that the inhibition in section 5 of the present Constitution "was against the issuance of a warrant of arrest without an affidavit, and not against making an arrest without warrant"; and, second, that the charter of the city of Bessemer authorized and empowered the municipality by ordinance to confer upon the police officers of the city authority to make arrests either with or without warrant; that in pursuance of this power conferred by the charter an ordinance was duly passed, authorizing the police officers to make arrests without warrant; and, third, that there was no conflict between the provisions of the charter as to making arrests and the general statutes (section 5211 of the Code of 1896).
Appellant's pleas of justification are predicated on the provision of section 839 of the Code of the City of Birmingham of 1905, providing:
"It is the duty of the chief of police and every policeman to arrest without warrant all persons found violating any ordinance of the city, or whom he has reason to believe has violated any city ordinance or against whom there is acharge made by any citizen for violating any city or statelaw," etc.
There is no contention that the plaintiff was arrested for an offense committed in the presence of an officer, or, when arrested, was found violating any ordinance of the city or law of the state, or that the arresting officer had reason to believe that he had violated any such law or ordinance. In fact, the undisputed evidence shows that the plaintiff had merely gone into possession of his own property, at a time when there was no one in the actual possession thereof, and that he was not guilty of any offense against the laws of the state of Alabama or the city of Birmingham. In fact, the evidence shows an effort on the part of the defendant, by a threat of criminal prosecution, to deter the plaintiff from asserting a right to his own property. See report of former appeal, 192 Ala. 675,69 So. 69, supra.
The contention of the appellant is that a mere verbal accusation made to a police officer by one citizen against another is sufficient to bring this case within the provision of the city code authorizing a police officer to arrest without warrant "when there is a charge made by any citizen for violating any *Page 316 city or state law." So the question is not whether it is within legislative competency to confer on a municipal corporation power to pass an ordinance authorizing its police to arrest without warrant for an offense not committed in the presence of the officer, but (conceding for the sake of discussion that the charter of the city of Birmingham as embodied in the acts of the Legislature of 1898-99 [Loc. Acts 1898-99, p. 1391] are still in force) whether or not the legislative body of the city of Birmingham, under the provision in that charter conferring upon said body power "to pass all laws necessary and proper for the arrest, with or without warrants, of any person against whom there is a charge made by any citizen for violating any city or state law," may authorize the arrest of a citizen on the mere verbal charge to a police officer. In other words, what interpretation should be placed by the court upon the clause in the ordinance as embodied in section 839 of the City Code, authorizing the arrest without warrant of any person "against whom there is a charge made by any citizenfor violating any city or state law." It will be noted that this clause in the ordinance follows substantially the language of the charter, and that it relates to charges made under the state law as well as the city laws, and must be interpreted in the light of the provisions of the Constitution and the laws of the state and city relating to the manner of preferring charges for violating the criminal laws. The Constitution provides "that no person shall be accused or arrested, or detained, except in cases ascertained by law, and according to the form which the same has prescribed." Constitution 1901, § 7.
At the time this act was passed, the only way provided for one citizen to prefer a criminal charge against another for misdemeanors was embodied in section 4600 of the Code of 1896, providing:
"A party aggrieved, or desiring to bring a charge of misdemeanor before the county court, may apply to the judge thereof, or to some justice of the peace of the county, for a warrant of arrest; and, upon making affidavit in writing, that he has probable cause for believing, and does believe that an offense (designating the misdemeanor by name, or by some other phrase which, in common parlance, designates it), has been committed in said county by C. D. (naming the offender), on the person (or property, as the case may be) of A. B. (naming the person injured), then the judge of said court, or justice * * * shall issue his warrant of arrest."
The provisions of this section were made applicable to proceedings before justices of the peace by 4634 of the Code of 1896. These statutes were brought forward and preserved in the Code of 1907 as sections 6703 and 6737, and by the provisions of section 1221 of the Code of 1907, section 6703 was made applicable to prosecutions for misdemeanors before the recorders of cities and towns.
We find that section 838 of the City Code authorizes a like procedure for bringing a charge for violating the city laws. In the case of Sanders v. Davis, 153 Ala. 381, 44 So. 979, the Supreme Court says:
"In a case of action for false imprisonment, the defendant interposed a special plea, setting up an arrest by a policeman 'having reasonable cause to believe that plaintiff was guilty.' In support of the plea the argument was made that the arrest, having been made by the officer on reasonable cause, was a lawful arrest, and, the defendant having caused it, his liability was for malicious prosecution, and not for false imprisonment. This court said that the vice of the argument was in supposing that the rightfulness or lawfulness of the officer's act could be predicated upon the command or direction of another procuring him to do the act, and that, 'if he acts by the command or direction of another, and arrests and imprisons one upon a charge of a felony which has not been committed, or, if committed, the party commanding the arrest had no reasonable cause to believe was committed by the person arrested, the act is unlawful on the part of the officer himself, as well as the person who procured it.' Rich v. McInerny, 103 Ala. 345, 355, 356, 15 So. 663, 49 Am. St. Rep. 32. While the expressions of the court in the foregoing case are not entirely clear to the writer, yet they seem to present the dilemma that, if the officer acted on the command or direction of another, who had no 'reasonable cause,' then the arrest was illegal, and consequently false imprisonment was the remedy; while, on the other hand, if the party upon whose command or direction he acted had 'reasonable cause,' then the arrest would be legal and valid, so that false imprisonment would not lie, nor could the party causing the arrest be held for malicious prosecution, because he had 'probable cause.' If this be the reasoning of the court, then the result is that a party instigating an arrest without a warrant can be made liable only in an action of false imprisonment only, and not in an action of malicious prosecution. The court, in that case, was dealing only with an arrest made on the verbal direction of the defendant, and the defendant was seeking to justify the arrest on the ground that the policeman had reasonable cause to believe that the plaintiff was guilty. It is probable that, under the last clause of the statute, if a regular formal charge should be made by affidavit, stating that the affiant has reasonable cause to believe, etc., the fact of his really having, or not, reasonable cause, would not be the test of the legality of the arrest. This court has held that, where a warrant of arrest was issued by a justice of the peace in one county, and sent to another, where the arrest was made without the indorsement by a justice of that county, as required by statute, although it was without force as a warrant in the latter county, yet it was sufficient, as a 'fact that a charge had been made on reasonable cause,' to make the arrest valid. Ex parte Smotherman, 140 Ala. 168, 171, 37 So. 376. But,however that may be a count for malicious prosecution should atleast aver that the defendant had made such a formal charge aswould have justified the officer to make the arrest based onthat charge, and it is not sufficient to aver merely that thedefendant caused the plaintiff to be arrested under a chargemade verbally to a policeman." (Italics supplied.)
An examination of the statute under consideration in that case, now section 6269 of the Code of 1907, shows that it authorized arrest without warrant "on a charge made, upon reasonable cause, that the person arrested has committed a felony," almost the identical language used in the charter of the city of Birmingham, and the ordinance embodied in section 839 of the City Code. We *Page 317 therefore hold that the provisions of the ordinance authorizing police officers to arrest persons "against whom there is a charge made by any citizen for violation of any city or state law" only authorizes such arrest when a charge is preferred as required by law, before a judicial officer authorized to take affidavits, and that such charge must be in writing, supported by oath, and must show probable cause. Cunningham v. Baker, Peterson Co., 104 Ala. 160, 16 So. 68, 53 Am. St. Rep. 27.
The answer to the argument made in the dissenting opinion that this construction will retard the enforcement of the criminal laws against offenders in congested communities like the city of Birmingham is, as said by the Supreme Court in Sanders v. Davis, supra, "This extraordinary power given to officers, being in derogation of the common law, must be strictly construed." Furthermore, after a charge is made before the proper authority, the entire police force of the city may act thereunder and arrest the offender wherever he may be found. The clear purpose of the authority granted to the city is to do away with the necessity of each officer having a warrant in his possession. Adams v. State, 175 Ala. 8,57 So. 591.
Moreover, if the construction of the ordinance and the provisions of the charter as embodied in the Acts of 1898-99, contended for by the appellant, should be adopted, to wit, that the ordinance authorizes the arrest of a person on the mere ipsi dixit of another, then it would follow that the provisions of the charter and the ordinance are inconsistent with the general laws of the state. Sanders v. Davis, supra; Cunningham v. Baker, Peterson Co., supra; Deason v. Gray, 192 Ala. 611,69 So. 15; Adams v. State, 175 Ala. 8, 57 So. 591; Ezzell. v. State, 13 Ala. App. 156, 68 So. 578. Therefore, in conflict with section 89 of the Constitution of 1901, and the acts of August 13, 1907, which conferred on municipal corporations power to adopt ordinances and resolutions "not inconsistent with the laws of the state," and repealed all laws, both general and special, in conflict therewith. Acts 1907, p. 830, § 80; page 892, § 200; Code 1907, § 1251; Gambill v. Schmuck, 131 Ala. 321, 31 So. 604. By ordinance approved August 29, 1907, the mayor and aldermen of the city of Birmingham organized the city government, under the provisions of the act approved August 13, 1907, and declared therein:
"It being and is the intent and purpose of this ordinance to accept and adopt the provisions of said act referred to in section I of this ordinance, approved on August 13, 1907, and to carry same into effect immediately upon the passage of this ordinance"
— and by section 3 of said ordinance it is provided:
"Be it further ordained that all ordinances and parts of ordinances in conflict with the provisions of this ordinance be and the same are hereby repealed, and that all ordinances of the city of Birmingham heretofore passed and now in force not inconsistent with the provisions of said act be and the same are hereby continued in effect."
The result of this ordinance was to adopt the general law of the state as embodied in the act above referred to, as a charter of the city of Birmingham, and to repeal all ordinances in conflict with the acts of August 13, 1907 (Baader v. City of Cullman, 115 Ala. 539, 22 So. 19), and therefore to repeal the provisions of section 839 of the Code of the city of Birmingham, in so far as it was in conflict with said act.
Under the facts averred in the several pleas of justification, the arrest was not authorized by law, and the demurrers were properly sustained. Furthermore, it appears from the record on this appeal, as well as from the report of the case on the former appeal, that the facts attending the plaintiff's arrest were fully developed, that the only justification for his arrest was the assertion of the defendant to the arresting officers that he had trespassed on the property in question, which is shown to be the plaintiff's own property, that no charge was made as required by law, and that if a proper plea of justification had been filed it could not have been proven.
If it was error for the court to reject the proposed proof that the defendant consulted an attorney, it is clearly error without injury, in view of the verdict rendered in this case being only for $19 and some few cents. Furthermore, we are of opinion that the statement of the proposed evidence was not sufficient, in that it does not show that the attorney consulted was a reputable attorney, learned in the law.
There is no error in the record, and the judgment must be affirmed.
Affirmed.
SAMFORD, J., concurring.