Dissenting Opinion.
Emery, J.' I think the majority opinion holds doctrines impairing the right of personal liberty and subversive of long established rules of law of this state. . I wish to leave upon record my regret and dissent.
I. That under the law of this state an inferior court of limited jurisdiction has authority to issue a warrant for arrest upon a complaint which charges only an innocent act, one not in violation of any existing law:—
I pass over the cases cited in the opinion upon the subject of jurisdiction of courts generally, for the reason that I think they will be found upon examination (notably the case of Bradley v. Fisher, 13 Wall. 335, cited as the leading case) to relate mainly, if not wholly, to superior court’s of general jurisdiction, which are presumed to have jurisdiction until the want of it affirmatively appears. The Augusta Municipal Court, however, is an inferior court of limited jurisdiction, which is presumed not to have jurisdiction until it affirmatively appears that jurisdiction has been expressly conferred. Hersom’s Case, 39 Maine, 476; Gurney v. Tufts, 37 Maine, 130; Thurston v Adams, 41 Maine, 419, 423; Wills v. Whittier, 45 Maine, 544; Inman v. Whiting, 70 Maine, 445. It has jurisdiction expressly conferred by statute to entertain complaints “charging a person with the commission of an offense,” R,. S., ch. 133, sec. 6; but I find no statute nor other authority conferring upon it jurisdiction to entertain a complaint only charging an act which is not an “offense.”
A complaint was made to this inferior court charging the plaintiff with nothing but driving a public carriage for hire in the streets of Augusta without having a license therefor from the municipal officers of Augusta. It is said in the opinion that the complaint was for *337a violation of a city ordinance of Augusta, yet it is conceded in the opinion there was in force no ordinance nor other law requiring such a license. True, the city government began the ordaining such an ordinance but failed to complete it, to give it life. It was left a mere simulacrum, without life or force. There was in force no city ordinance nor other law to be violated by the act charged, and hence the complaint was not, and could not be, for violation of a city ordinance or other law. The complaint did not charge the plaintiff “with the commission of an offense,” either against statute or ordinance. On the - contrary, the act charged was, as to the law, an entirely innocent one, as much so as drinking pure water or breathing pure air. Therefore, in holding that the Municipal Court had jurisdiction of this complaint the opinion holds in effect, if not in terms, that an inferior court of limited jurisdiction has authority to issue a warrant for arrest upon a complaint charging only an innocent act, one not in violation of any existing law.
The logical result of this doctrine is that in this free state any person is legally subject to . arrest and trial (and to imprisonment in jail if too poor to furnish the bail required) upon no other charge than drinking pure water or breathing pure air. This reductio ad absurdum alone should show the unsoundness of the doctrine. The test of the soundness of a legal doctrine is not what would be done, but what could be done under it.
I understand the argument of the opinion to be that even an inferior court or magistrate must necessarily decide whether the act charged in the complaint made to him is one forbidden by law, and hence if he decides that it is, that decision is a judicial one which should be held valid until reversed on appeal or writ of error. Even if that be the law as to superior courts of general jurisdiction, I submit it is not the law as to inferior courts of limited jurisdiction like the Augusta Municipal Court. It is axiomatic that no inferior .court can acquire jurisdiction, or the semblance of jurisdiction, by deciding that it has jurisdiction. Gurney v. Tufts, 37 Maine, 130, (at p. 134); Gregory v. Gregory, 78 Maine, 187. If it be the law, then however evident that no offense is charged, that the act charged is not punishable but innocent,— the accused can have no relief upon *338habeas corpus but must remain in custody and perhaps in jail for months and perhaps years until the judgment of the appellate court is rendered. It is common learning that the writ of habeas corpus cannot be used as a writ of error or appeal.
Can there be any doubt, however, that this plaintiff would have been entitled to an immediate, unconditional discharge upon habeas corpus, had he invoked that writ? As long ago as Bacon’s Abridgment it was declared: “If the commitment be against law as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge.” Bac. Ab. Hab. Corp; B. 10 (quoted from Ex parte Parks, 93 U. S. 22). In Ex parte Tong, 108 U. S. 556, the court said: “The judicial proceeding under it (habeas corpus) is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act.” In Ex parte Siebold, 100 U. S. 377, the court said: “Personal liberty is of so great moment in the eye of the law that the judgment of an inferior' court affecting it is not deemed so conclusive but that, as we have seen, the question of the court’s authority to try and imprison the party may be reviewed on habeas corpus.” In Ex parte Yarbrough, 110 U. S. 651, at page 654, the court said: “If the law which defines the offense and prescribes its punishment is Void, the court was without jurisdiction and the prisoners must be discharged.” In Ex parte Coy, 127 U. S. 731, at page 758, the court said: “The validity of the statute under which a prisoner is held in custody may be inquired into under a writ of habeas corpus as affecting the jurisdiction of the court which ordered his imprisonment.” These declarations of the law by the Supreme Court of the United States seem peculiarly applicable to this ease.
The logical result of the authorities is stated by Spelling as follows: “Since no court has jurisdiction to punish a party who has violated no law, however reprehensible his conduct from a moral standpoint, it necessarily follows that one convicted or held under color of judicial authority for violating an unconstitutional statute or a void municipal ordinance is entitled to an unconditional discharge on habeas corpus,” Spelling on Ex. Belief, sec, 1205, A great *339number of cases in support of the above may be found cited in Spelling, sec. 1205, and in Church on Habeas Corpus, sec. 83.
This court, also, has hitherto been emphatic in asserting the right of personal liberty against arrest for what is not an offense. In Gurney v. Tufts, 37 Maine, 130, at p. 133, the court said: “If the magistrate issues precepts, or orders arrests for acts not known to law as offenses ... he can, when thus transcending the bounds of his authority, afford no more protection to an officer than could one not a magistrate.” In State v. Learned, 47 Maine, 431, the court declared that the legislature could not confer authority to thus abridge the constitutional right of personal liberty. It said (p. 433) “What we do decide is, that the legislature cannot dispense with the requirement of a distinct representation of an offense against the law. It cannot compel an accused person to answer to a complaint which contains no charge, either general or particular, of any offense.” See also Hersom’s Case, 39 Maine, 476, where this rule was applied.
Prior to the majority opinion in this case, it was to me unthinkable that any Justice could have refused to discharge this plaintiff upon habeas corpus. Even now I hope, and indeed believe, the Justices will disavow this doctrine of the opinion when confronted with a demand for his liberty by one arrested for an innocent act, or even under a supposed statute or ordinance having in fact no force.
II. That under the law of this state an inferior magistrate of limited jurisdiction is not liable in trespass for ordering an arrest of the person when he had no jurisdiction or authority to do so:—
I will not follow the majority opinion in its inquiry as to the law of other states, although the law is laid down in that standard law book of recognized authority, Cooley on Torts, as follows: “It is universally conceded that when inferior courts and judicial officers act without jurisdiction, the law can give them no protection whatever.” (p. 489). Nor will I delay to discuss the reason of either rule. Whatever the rule in other states and whatever the reasons pro and con, I submit that it has hitherto been the accepted, unquestioned law of this state that an inferior magistrate is liable in trespass for ordering an arrest without jurisdiction, or in excess of jurisdiction. The case Piper v. Pearson, 2 Gray, 120, now condemned in the majority *340opinion, has been repeatedly cited by this court with approval in support of this rule, (in 41 Maine, 419, 64 Maine, 321, 66 Maine, 350, and perhaps in other cases). The doctrine of that case was explicitly and vigorously affirmed as the settled law of this state in Waterville v. Barton, 64 Maine, 321, where the court said: “We start with the well settled rule that inferior courts of limited jurisdiction are responsible in trespass to those whom their acts affect, when they act without or in excess of their jurisdiction, and not otherwise.” This rule has been made the rule of decision in the following cases, in each of which the official ordering the arrest or seizure believed and decided that he had jurisdiction to make the order and yet was held liable in trespass because in law and fact he did not have jurisdiction. Mosher v. Robie, 11 Maine, 135; Spencer v. Perry, 17 Maine, 413; Herriman v. Stowers, 43 Maine, 497; Wills v. Whittier, 45 Maine, 544; Waterville v. Barton, 64 Maine, 321; Call v. Pike, 66 Maine, 350. See also Thurston v. Adams, 41 Maine, 419. I find no case to the contrary.
Whatever may be said of a rule of law declared by a single decision only, it becomes settled beyond discussion when iterated by repeated decisions. Wright v. Sill, 67 U. S. (2 Black), 544. “We will not enter into an inquiry as to the reasons upon which it (a rule) is founded, with the purpose of vindicating its correctness. It has stood unquestioned for more than fifteen years, and doubtless has been often followed by nisi prius courts, and esteemed by the profession as a part of the body of the laws of the state. Stability in the laws is of the first importance to the people and to the courts,” Davidson v. Briggs, 61 Iowa, 309.
The rule for this state has been settled by repeated decisions without dissent, and has stood as a part of the law of the state for three-fourths of a century. What rule of law in this state is more firmly or longer established? For the court now, without any change in circumstances or conditions, to disregard the rule because the present Justices do not like it or because some courts in other states do not regard it as the law of those states, seems to me a disobedience to-the law of this state by its appointed conservators, .and a fruitful cause of uncertainty where certainty is essential. “Stability in the laws *341is of the first importance to the people and the courts.” With an unstable court, however pure its Justices, the government is after all one of men and not of laws.
III. As to the officer serving the warrant: — He was bound to. know what was law and what was not law, as much so as a private citizen. The difficulty of knowing the law no more excuses him than it excuses the private citizen. Being bound to know the law, however difficult the task, he could and should have known from the inspection of the warrant that the act charged was an innocent one, not in violation of any law, and hence did not authorize an arrest.
In Elsemore v. Longfellow, 76 Maine, 128, the officer was held liable because no statutory cause for arrest was alleged in the precept. In Warren v. Kelley, 80 Maine, 512, the officer was held liable because the supposed statute authorizing the seizure had no force, being unconstitutional. In the case at bar no statutory or other legal cause for arrest was alleged or appeared in the precept; the supposed ordinance supposed to authorize it admittedly had no force. The officer having been held liable in the cases cited for the reason therein given, I do not see why he should not be held liable in this case for the same reason. Despite the able argument in the opinion, I think it remains unrefuted and irrefutable that a lifeless ordinance and a lifeless statute are equally without force whatever the cause, and that the one can afford no more protection than the other.