Action by Schmuck against G-ambill. The complaint contains two counts. The first claims damages for that defendant maliciousy and without probable cause therefor arrested and imprisoned the plaintiff, etc. The second count claims damages for that defendant unlawfully arrested and imprisoned plaintiff, etc. Each count alleges that defendant arrested plaintiff on a charge of violating section 323 of the ordinance Code of the city of Birmingham, which makes it unlawful for a person to do a business for which a license is required before paying for and taking out such license. The defendant pleaded not guilty and so3ne special pleas intended to justify the arrest, etc., of the plaintiff on the groiind that defendant was the license collector or a policeman of the city and — some of them —that he had reason to believe plaintiff had committed the offense refe3*red to, and — others—that he had probable cause to believe and did believe plaintiff had committed said offense, etc., etc. These pleas were properly held bad on demurrer. They failed to aver that the offense was committed in the presence of the officer, or that he had a warrant for the arrest of the plaintiff, Scli33iuck. Under the general law an officer without a warrant has no authority to arrest for an offense of the grade involved here — a quasi misdemeanor — unless it is eo3nmitted in his presence. — Code, § 5211. And conceding for the purposes in hand, without deciding, that it was co33ipetent for the legislature to delegate to the municipality of Birmingham the power to provide by ordinance for1 the arrest of misde3neanants without warrant when the offense is not co3mnitted in the presence of the arresting officer or citizen, we do not find that the legislature hasi attempted to do this. What it has done is to confer upon the legislative body of the city power *332“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.” Having only this authority to provide for the arrest without warrant of persons against whom charges have been made by citizens; the ordinance put in evidence which undertook to authorize such arrests in all cases regardless of charges having or not been made, was beyond corporate capacity and void. So that neither under the general law nor under the charter of the city is an arrest without warrant for a misdemeanor authorized under the facts averred in these pleas, which were numbered 3, 4, and 5, and demurrers were properly sustained to them. The sixth plea avers that defendant was present when the plaintiff was committing the offense for which he was arrested, etc., etc. It does not appear that this idea was demurred to; and the issues were the joinder on the pica, of not guilty and this plea 6.
Whether the arrest and imprisonment of Schmuck was malicious and without probable cause was a question of fact which had to be left to the jury. Whether the arrest was unlawful depended upon the inquiry as to whether or not the offense for which he was arrested was committed in the presence of Gambill; and upon this the -evidence involved conflict or bases for conflicting inferences. So that the affirmative charges requested by defendant upon the whole complaint, and upon the first and second counts severally were properly refused.
It has been the general understanding that an actual transaction is an essential element of the offense of engaging in or carrying on the business of selling liquors without license, and we so hold though the precise point has not, it seems, been decided by this court. — Code, § 5467, and citations. Charges F. and G. asked by defendant were therefore bad, and charges 7 and 11 were properly given for plaintiff.
Even if Schmuck was guilty of the offense for which he was arrested, the arrest was none the less unlawful unless it was committed in the presence of Gambill. *333Hence charges H. and I. were properly refused to the defendant.
Charge 10 given ‘for plaintiff was in line with the views we have expressed when considering the sufficiency of pleas 3, 4, and 5.
Charge 5 given for plaintiff asserts a well established principle of law. “In a legal sense, any unlawful act which i>s done willfully and purposely to the injury of another is, as against that person, malicious. It (malicious prosecution) is an action based upon an improper motive, and does not necessarily presuppose persona] hatred, ill will or revenge. It may be a mere wanton * * * disregard of the rights of others.” — 14 Am. & Eng. Encyc. Law, pp 22-3.
We find no error in the record, and the judgment must be
Affirmed.