The appellant contends that the above judicial proceedings fully justify him and that as Justice he could not be held responsible even if he had made some mistake in the exercise of the functions of his office. He also claims complete justification under Sec. 1 of an act entitled “ An Act to provide for the punishment of persons violating any of the ordinances of the several cities and villages in this State,” approved and in force April 12, 1879; see Session Laws 1879, page 70. The Act so far as it relates to the action of appellant is as follows : “ That a warrant for the arrest of offenders may issue in the first instance upon the affidavit of any person that any such ordinance [ordinance of city or village] has been violated and that the person making the complaint has reasonable grounds to believe the party charged is guilty thereof; and any person arrested upon such warrant, shall, without unnecessary delay, be taken before the proper officer to be tried for the alleged offense. Any person upon whom any fine or penalty shall be imposed, may, upon the order of the court or Magistrate before whom the conviction is had, be committed to the county,, jail or ,c laboose, city prison, workhouse, house of correction, or other place provided by such cities or villages by ordinance for the incarceration of such .offenders until such fine, penalty and costs shall be fully paid: Provided, that no such imprisonment shall exceed six months for any one offense.”
In regard to the power .of the appellant to issue the warrant, we are inclined to think thát the affidavit of JV Overaker was full justification. The writ was a warrant in every respect except bail was allowed till a certain day named ; but this permission was for the benefit of appellee if he saw proper to take advantage of' it, but as he did not the writ amounted to the same as might have been issued under the plain provisions of the- statute.' The appellee; therefore, should not be allowed to enter any objections to the form of the warrant. - The trial and fine appeared to be regular' and no exception could be taken to that even if it had been irregular, as appellant was protected under his character as a judicial officer.
It now remains to be seen whether appellant overstepped the bounds of his jurisdiction in entering the order of commitment. Next,'if such order was regular, whether the order justified the peculiar mittimus issued and the verbal order to take the appellee to jail. The proper solution of the first point in the above question depends upon the interpretation that is put on the statute: Does the statute mean that before any imprisonment can be ordered by the .Magistrate there must be an ordinance passed by- the city or village providing 'for the place where the offender may be imprisoned, or is the act absolute without such ordinance as to the-places named in the act, “county jail, calaboose, city prison, work-house and house of correction,” the Justice having the option to send him to either at pleasure and desire, the last class simply referring to places not named which shall be fixed by ordinance, those named being regarded as having been fixed by statute? We do not speak with the, utmost confidence upon what ought to be the proper interpretation put upon this statute in that particular, but we are inclined to hold that the place should be fixed by city or village ordinance, and it should be determined thereby what place of those named should be the one, as well as to fixing some place not named.
The fact that the city or village is entitled to all fines and penalties recovered, and is also liable for the costs of keeping those upon whom fines are imposed in confinement, seems to be a good reason why the Legislature would desire to give the city the entire control of the matter of imprisonment. And in a case of so doubtful a meaning of the section it seems such consideration ought to be sufiicient to turn the scale. And then it would seem improper to give the Magistrate such power as to allow him to choose the place; perchance send an offender for some slight offense miles away to the county jail, when there was a calaboose in the city or village better suited.
We think also the order of commitment should also fix the limit at six months, otherwise the jailor or beeper of other place of confinement would not know how long the party to be imprisoned would have to stay if he failed to satisfy the fine and costs. It should not be left to such officer to find out and be the judge of what the law is on the subject. It is the business of such officer to follow the commands of the committing writ.
But what authority had the appellant to issue the committing order which he did? It bears no semblance to the judgment.and order of commitment in his docket. It is in form the same as a warrant of commitment in case where a party is bound over by a committing Magistrate where there is a criminal charge preferred, which the Magistrate has no jurisdiction to try, but has jurisdiction to bind the party over to appear and answer to a higher court. The writ issued showed that the party in custody was probably guilty of violating a village ordinance; not that he had been fined and committed till fine and costs were paid. It showed that appellee had been bound over to appear to the next term of the County Court, and had failed to give the required bail and had been committed till he did so, or otherwise legally discharged. The amount of bail indorsed on the back of the warrant was “ $50 and costs.” The Sheriff could see, and did see, that the County Court had no jurisdiction to try such a case, and refused to receive the appellee or put him in jail. But the imprisonment had been effected by this illegal and unwarranted order and verbal direction by the appellant.
But it is insisted that the appellant is protected by virtue of his judicial character as a Justice of the Peace, and that the issuing of the warrant in question was a judicial' act for wliich the appellant can not be called to account in an action of trespass for false imprisonment.
This will depend upon whether the issuing of the writ was a judicial act within the jurisdiction of the Justice.
We are satisfied that it was not, and also that the issuance of the writ was not a judicial act. There was no judgment or semblance of foundation for it. Ho such proceeding as it recited or anything like it had ever taken place before the appellant.
In Board of Trustees v. Schroder et al., 58 Ill., a decision that was rendered prior to the passage of the above Act of 1879, it was held: “For the breach of town ordinance the party forfeits a sum of money that may be recovered by the corporation in an action of debt; but the proceeding is not criminal in form. The Justice of the Peace has no more right to order the committal than he would at the end of a trial between two individuals to order the defendant to be imprisoned; and when f officers assume to imprison without authority of law, or with- | out any of the forms or processes usual and necessary to be employed, they become liable for false imprisonment * * *
The Constitution prohibits it except by due process of law.” In Thomas v. Hinsdale et al., 78 Ill. 259, it was held, if a Justice of the Peace issues an attachment when not authorized by law to do so, his ignorance as to the extent of his authority is no excuse. The issuing of final process after judgment is purely a ministerial act. Biggs v. Woodwell, 10 Mass. 356. Even if the judgment had been authorized the appellant did not issue the kind of a writ called for by it, and his act in this particular being ■ ministerial and outside of his judicial authority, he is liable in the kind of an action brought on account of the false imprisonment. It is objected that the evidence concerning appellee’s illness and its cause was improperly admitted and the case of Miles v. Weston, 60 Ill. 361, is cited for authority against it; but in this case it will be observed, the declaration contains no averments under which the evidence could be given. In this case, by the amendment to the declaration, there were such averments.
There was evidence in the case tending to show malice; the instruction therefore on that head was not improper. Some other instructions were not strictly accurate, but we think they were not so seriously defective or misleading that the jury could have been misled to appellant’s injury.
The judgment of the court below is therefore affirmed.
Judgment affii'med. .