Admitting that the ordinance in question is a valid one, it nowhere confers, and it could not constitutionally confer, upon a constable, a ministerial officer, the power to arrest and imprison for a penalty incurred or for any other violation of law, except it may be for safe custody. Men may not be arrested, imprisoned and released *Page 190 upon the judgment or at the discretion of a constable or any one else. If the alleged offense be criminal in its character and committed in the presence of the officer, he may arrest and take the offender before a magistrate for trial. If the offense is penal only, and not a misdemeanor, the penalty can be recovered by action only. Comrs. v. Frank, 46 N.C. 436; Bat. Rev., ch. 111, sec. 20.
If the offense be a misdemeanor, then it must be tried as other misdemeanors. Here the prosecutor was not sued for the penalty of ten dollars imposed by the ordinance, nor was he arrested and taken before a magistrate for trial for a criminal offense; but the constable arrested and imprisoned him, not for safekeeping until he could be tried before a competent tribunal, but he imprisoned him until he became sober, according to his judgment, and then released him. The constable thus constituted himself the judge, jury and executioner. This is the best description of despotism.
It is unnecessary to decide whether the ordinance, from its generality and vagueness, is not inoperative and void.
Upon the special verdict, defendant is, in law, guilty.
PER CURIAM. Reversed.
Cited: S. v. James, 78 N.C. 458; School Directors v. Asheville,137 N.C. 509.
Dist.: S. v. Freeman, 86 N.C. 687.