The defendant, for an illegal violation of a municipal ordinance of the town of Hoiner, was fined twenty-five dollars, and ordered to be imprisoned until he paid the fine.
The ordinance authorized the judgment, and the ordinance was perhaps authorized by the statute which conferred certain powers upon the mayor and selectmen.
But the Legislature had no power to confer judicial authority upon these parties. That power is fixed by the constitution, and the Legist lature can neither take from nor add to it. In this sense the first act passed in 1850, violated article 62 of the constitution of 1845; and the supplement thereof violated articles 78, 71 and 82 of the constitution of 1852.
Plaintiffs contend that article 94 of the constitution of 1868, coni fers this power, and therefore the defect of the' former Legislature is cured. But we do not see how an act of the Legislature which violates an article of the constitution of 1852 can become constitutional because authorized by the constitution of 1868.
The constitutionality of a law must be tested by the constitution which was in force when the law was passed.
It is therefore ordered, adjudged and decreed that the judgment appealed from' be avoided, annulled and reversed, and that there be judgment in favor of the defendant with costs in both courts.