This is an action brought against the Mayor and Constable of the town of Jackson, and another for an alleged illegal arrest and ill treatment of the plaintiff while under arrest. The defendants appeal.
We are all agreed that the Mayor of the town of Jackson, under the Act of 1832 (p. 160), had the power to issue the warrant for the arrest of the plaintiff notwithstanding the Constitutions of 1845 and 1852, and as a consequence, that the warrant so issued was an ample protection to the Constable acting under it and those called upon by him to assist in executing the warrant.
A majority of the court are of the opinion also, that judgment ought to be rendered in favor of the Mayor who issued the warrant as well as the Constable who acted under it.
The power granted by the Act of 1832 to the Mayor was limited to certain criminal matters therein named, and thus was merely ministerial, but within these limits and the matters expressly confided to Mm, as efficient as that of the Coroner, as a conservator of the peace, or of any other magistrate. It is declared in the Act, that he shall be ex officio a Justice of the Peace within the limits of the town of Jackson and shall be commissioned accordingly, and that he shall have power to suppress all riots, routs, affrays, tumultuous assemblies, and all breaches of the peace, and arrest offenders in the same way and manner as Justices of the Peace may or can do. Sec. 4, No. 4, p. 160.
The Mayor and Trustees of the town by the same Act are empowered to pass by-laws for the government of said town, provided the .same are not repugnant to the Constitution and laws of this State or of the United States. Sec. 4, No. V.
The first section of an ordinance of the town approved 24th of March, 1854, is in these words : “ Be it ordained by the corporate authorities of the town of Jackson in regular meeting convened; That it shall be the duty of the Mayor to have the laws of the corporation strictly executed. When he may know or information is given by others of said laws having been violated by any person or persons, he shall immediately issue a writ commanding the Constable to take into his custody the person or persons so offending, and bring them before Mm for trial, and if upon the trial of said person or persons it shall appear that they have been guilty of a violation of any ordinance of said town, it shall be the duty of the Mayor to fine said person or persons in a sum not less than one dollar nor more than fifty dollars, and to order said person or persons to stand committed until said fine is paid.”
The ordinance of the 10th day of April, 1854, prohibited the sale of spirituous liquors and imposed a penalty for its contravention not exceeding fifty dollars. See Acts of the Legislature, 1852, p. 83,1854, p. 154.
*282The warrant was issued without affidavit and evidently under the erroneous belief that the ordinance first recited authorized the Mayor to issue it in that form on a written information merely. The warrant commences with this 'recital: “ Information having been laid before me, that John McGuire has been guilty o f a violation of the laws of the State aforesaid, by selling spirituous liquors within the town of Jackson, State and Parish aforesaid, within the last thirty days,” &c.
So soon as the accused was brought before the Mayor and he was informed that the warrant was illegal without an affidavit, he discharged the accused. There is nothing in the record to show or lead us to suppose, that the Mayor was not acting in the most perfect good faith and for what he deemed to be the public good, under a mistaken idea of the law of the case. He had power to issue the wai'rant and bind over the accused, as we 'ail admit, but he ought not to have issued it without an affidavit. Ought he to be held personally responsible for a mere error of judgment ? We think not. Under the peculiar system of the English common law it seems to have been held that a justice of jieace is liable for an arrest under a warrant issued without affidavit, unless the offence be committed in his presence; but this principle does not seem to be extended to any other case in which a discretion is vested in him. Under that law, it would seem that if a Justice of the Peace issue a warrant without the oath of the party complaining, it ■ would be trespass, and ho would be liable in damages, but if issued by the order of a Judge of a court of record or other high officer, it would be presumed to be a mistake. Such officers would not be liable. See Bacon’s Abridgement, verbo Trespass D.
We do not think this principle of the English law ought to bo admitted in Louisiana. A public officer, whether judicial or ministerial, acting in good faith, under a discretion vested in him by law, ought in general to be protected against an action for damages arising from an erroneous exercise of such discretion.
With us, Justices of the Peace in the country towns, and wards of country parishes, are mostly men without legal learning. In criminal matters they are often called upon to act upon sudden emergencies, and they have not time to consult men learned in the law as to the form of their proceedings. The interest of the public requires that they should act promptly; now, to hold that they shall be responsible in damages for errors of judgment is to destroy their efficiency and prevent the best men from accepting the office.
Lord Mansfield said, one hundred years ago, in a criminal prosecution against two Justices, Young and Pitts, “ If their judgment is wrong, yet their heabt and intention pure, God forbid that they should be punished; ” and he declared “ that he should always lean towards favoring them unless partiality, corruption or malice shall clearly appear.” Mr. Justice Wilmot said, in the same case, “ Then, the sole discretion being in them, the bule is invariable, that this court will never interpose to punish a Justice of the Peace for a mere error in judgment.” 1 Burrows, 562-3.
And so it has been held in Louisiana. It is laid down in 1 L. R., 136, speaking of a Justice of the Peace, 'that a Judge is not answerable civiliter for an error in judgment so long as he acts within his jurisdiction. Nor can it make any difference that his acts are considered ministerial; if he is intrusted with a legal discretion in the exercise of his functions, although his orders in criminal matters conclude nothing and are not in that sense judgments, he ought to be protected in the honest discharge of his duties, notwithstanding his errors may subject parties to some inconveniences, and such seems to be the settled doctrine of this court. See the cases in 2 An., 968, and 5 An., 580.
*283We do not consider that in the conclusions to which we have arrived on this branch of the case, we are overruling any decisions upon the subject.
The action brought is a civil suit governed by -the laws of Louisiana. We find the doctrine laid down in three decisions of our own courts, as we have announced it, and the question now is, shall we admit an exceptional case of the English law to overrule our own decisions ? The rule of the English law has no force here except so far as it commands attention by the sole power of the reasons upon which it rests. We fail to perceive any sufficiently cogent, to authorize the introduction of the rule into Louisiana.
But the Article 4 to the amendments of the Oonstitution of the United States has been cited as having some application to this case. It is well known that the provision in question applies exclusively to the government of the United States, and is a restriction upon the powers of the general government. It is merely the enforcement of a well known rule of the common law carried into the Constitution for the protection of the citizen against the power of the General Government and has no application on a question under the State courts wherein an officer is sought to be made liable civiliter for an error of judgment in the exercise of a power conferred upon him. In the case of Dwight v. Rice, 5 An., 580, it was held that a ministerial officer acting in good faith would not be liable for damages arising from his act although the statute under which he acted should subsequently prove unconstitutional.
To prevent all misapprehension we take occasion to repeat, that we consider the enumerated powers conferred by the Act of 1852 upon the Mayor of Jackson as ministerial, that as such ministerial officer and a conservator of the peace, he had the power to issue a warrant for the arrest of Maguire for selling spirituous liquors without license, and to hold Mm to bail to answer the offence, but that the warrant issued by Hughes was not legal for want of an affidavit to support it; nevertheless, as he acted in good faith in issuing the warrant, he ought not to be held responsible for a mere error of judgment.
It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the plaintiff and in favor of the defendants, and that the plaintiff pay the costs of both courts.