The appellee was tried before the mayor of Mobile, and fined fifty dollars for an alleged violation of a city ordinance. He appealed to the circuit court, and there, upon a re-hearing of the cause, he was acquitted of the charge, and a judgment was rendered against the appellants for the costs of the proceeding. From this judgment they appeal.
The ordinance referred to forbids fighting and quarreling, or any riotous, indecent or blasphemous language, or disorderly conduct, in the'streets, houses, or anywhere else in the city, or abusing, provoking or disturbing, by word or action, any person in, or walking in, any street, road, or public way, under a penalty not exceeding fifty dollars, to be imposed by the mayor.
The evidence shows that the appellee, Barton, employed several persons to put a fence around a vacant lot in the city of Mobile which belonged to Eaton. They were ordered off by Eaton, but presently returned, after a confer*88ence with Barton, whereupon Eaton had them arrested for disorderly conduct. They were released through the instrumentality of Barton, and by his direction returned to their work. After two or three repetitions of this, Eaton procured the arrest of Barton on the same charge, upon which he was tried before the mayor. No personal altercation occurred between Eaton and Barton, and there was no breach of the peace by any of the parties. But the persistence of Barton in sending the men back to the premises to continue the work upon the fence greatly irritated Eaton, and was calculated to do so. Barton claimed to be acting as the agent of persons living in Mississippi, who, he said, asserted some right to the lot, but none was attempted to be shown.
The court charged the jury, in substance, that section 8556 of the Revised Code, which forbids the intrusion of any person on the premises of another within six months after having been warned not to do so, had no connection with this case; that the peaceable entrance of a person on a vacant lot with the simple intention of putting a fence upon it, though he had been warned not to do so by one claiming the lot, was not a violation of the city ordinance, no matter how much it irritated the claimant, or was calculated to produce á breach of the peace, unless his action was dictated by spite, or the intention of provoking another, or creating' a disturbance, or producing a breach of the peace; that such entrance upon a vacant lot for the purpose mentioned could not be regarded as riotous conduct, however much such acts, taken in connection with similar acts done by the defendant about the same time in reference to other vacant lots to which there were different claimants, may have been calculated to produce disturbance and fighting in the community, unless the defendant by such acts intended to produce such results. The plaintiffs excepted to this charge, and asked the court to charge that if the jury should find for the plaintiffs, the measure of their verdict should be the amount of the fine imposed by the mayor. But this was refused, to which exception was taken.
*89We find no error in the charge of the court. Disorderly conduct, in the sense of the ordinance, is virtually explained by the other portions with which it is connected. It has reference to some unwarrantable aggression upon or towards other persons, of an insulting character, accompanied with more or less of noisy demonstration. Obstructing the side-walk with goods would produce great annoyance to those passing, and, perhaps, cause actual injury to some of them, and it might lead to a breach of the peace. But this would be disorderly conduct only when accompanied with an evil design.
Barton’s trespass upon the vacant lot (it was no more than that,) was not an affront to Eaton’s person, nor an injury to his property. The ground of his objection was the repudiation of his right to the property. Eor this the law gave him an adequate remedy. His anger was therefore unreasonable, and Barton should not be held to account for it.
The charter of the city of Mobile, approved February 2d, 1866, directs, in section 91, that the mayor, or other officer acting in his stead, shall issue his process, as a justice of the peace for the city of Mobile, for a breach of any of the by-laws or ordinances of the corporation to any police officer of the corporation, who shall bring the offenders before the mayor or other officer for trial. The accused, if convicted, may appeal to the circuit or city court of Mobile, where the proceedings shall be as prescribed by law in other cases of appeal. The trial in the appellate court is therefore to be de novo on all of the issues, including the amount of the fine. The ordinance allows a margin of discretion to proportion the fine to the character of the offense, and the exercise of this discretion may be the ground of the appeal. There was therefore no error in refusing the charge asked by appellant, that “if tthe jury should find for the plaintiffs, then the measure of their verdict would be the amount of the fine which was imposed by the mayor.”
No issue has been made about the propriety of the judg*90ment for costs against the city, and we make no decision respecting it. But I am inclined to the opinion that it is not hable for costs in a case of this sort. The mayor sits as the judge of an inferior court of a judicial division of the State, and performs his duties in the interest of the peace and good order of society. Wisdom and necessity concur in the delegation of a limited legislative power to a populous city, for the more prompt, energetic, and just exercise of the functions of government. Why should the people of such a community be held responsible for the errors in judgment of its judges, more than those of other communities in the State ?— Withers v. Posey, 36 Ala. 252; Com'rs Court of Russell v. Tarver, 25 Ala. 480.
The judgment is affirmed.