dissenting. M. W. Hughes, Mayor of the town of Jackson and ex officio Justice of the Peace, and N. G. Noswortky, Constable of the town of Jackson, have appealed from a judgment condemning them in solido to pay the plaintiff, John Maguire, forty-five dollars, as damages for an illegal and unwarranted arrest.
Nosworthy justifies himself by alleging that he acted under a warrant issued by a magistrate of competent authority and having jurisdiction in the premises.
Hughes pleads a similar defence, and urges that his conduct was legal, and if defective in any respect, that his good faith in the discharge of an official duty protects him.
Upon Noswortky’s defence it is only necessary to inquire whether the Mayor Hughes had jurisdiction to issue a warrant to arrest Maguire for an alleged offence against law. Eor, in executing the warrant, it appears that the resistance of the plaintiff made it necessary to use the violence which is charged upon him as an aggravation of a wrongful arrest.
•By the Act of April 2d, 1832, incorporating the town of Jackson, it was provided that a Mayor should be chosen by the qualified voters of the said town, *284(sec. 3), and that the said Mayor should be ex officio a Justice of the Peace within the limits of the town, and should be commissioned accordingly, with 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).
Hughes was duly elected and commissioned as Mayor of the town of Jackson and ex officio Justice of the Peace. While holding such a commission from the Governor of the State, in the month of February, 1855, he issued the warrant in question, commanding Noswoiihy, the Constable, to arrest the plaintiff on a charge of violating the laws of the State by selling spirituous liquors, &c.
The plaintiff now contends that the Mayor of Jackson had no authority whatever to issue warrants of arrest for an infraction of the laws of the State, and no powers as a peace officer or committing magistrate, although such powers were expressly conferred upon him by the Act incorporating the town of Jackson.
The case of Lafon v. Dufrocq, 9 An., 352, is relied on as authority for this position. ,
The analogy is not perfect; that was the case of a civil suit for the recovery of a fine; and it was decided that the Mayor of Baton Rouge, since the Constitution of 1845, was without judicial power to entertain such an action.
The power here exercised of a peace officer and examining magistrate, is not strictly judicial, but rather ministerial or administrative; a Justice of the Peace acts judicially when he convicts and sentences an offender, or gives judgment for a sum of money; ministerially, in preserving the peace, hearing charges against offenders, issuing summonses or warrants, examining the informant and his witnesses, bailing the supposed offender or committing him for trial, &c. 1 Chit., Black., p. 354, No. 31.
So far at least as these latter duties are concerned, I am of the opinion that the Mayor of Jackson has not been stripped of the powers specially conferred upon him by the Act of 1832, in consequence of the adoption of the Constitution of 1852, and if the case of Lafon v. Dufrocq is inconsistent with this conclusion, I think, it should be, so far, overruled
When the Constitution of 1852 declared that “ the judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may, from time to time, order and establish, and in Justices of the Peace,” (Art. 61) it did not restrain the Legislature from conferring upon the Mayors of towns the usual police and ministerial powers of Justices of the Peace.”
The Legislature may not make them Judges, or invest them with jurisdiction to try civil causes, or to pass finally upon alleged offences, but they may properly be clothed with the attributes of committing magistrates, and all such provisional powers as will enable them to preserve the good order and police of their respective towns. They are not Judges, but quasi Justices of the Peace, having their ministerial but not their judicial powers.
The power given by the Act of April 2d, 1832, to the Mayor of the town of Jackson “ to arrest offenders in the same way and manner as Justices of the Peace may do,” was not, in my opinion, impaired by the Constitutions either of 1845 or 1852.
It was for an imputed offence against a State law that Mayor Hughes issued his warrant to arrest the plaintiff. As he had power and authority vested in him .by law to issue such a warrant, it follows by a well settled rule that the Constable acting under it in good faith, without notice of the Mayor’s error, is protected, and we therefore think that the judgment against Nosworthy should be reversed.
*285But the Mayor was only empowered by the statute to “ arrest offenders in the same way and manner as Justices of the Peace may or can do.” He was bound to proceed in issuing his warrant, as a Justice of the Peace is bound to proceed, and, this being a ministerial proceeding, a Justice of the Peace would be civilly responsible for wilfully doing it contrary to law. As a Judge, a Justice of the Peace is not responsible civilly for deciding against the law; as a committing magistrate, he is civilly responsible for acting against the law.
Now, unless a magistrate acts super visum on his own positive and personal knowledge, or upon the confession of the party in his presence, he cannot lawfully issue a warrant of arrest without an affidavit accusing the party; and if he thus issues a warrant, without an oath of facts or circumstances raising a presumption of guilt, he is liable to an action in damages by the aggrieved party, for acting illegally in his ministerial capacity. See 1 East. Pleas Crown, 64; 2 Term R., 225; 2 Wils., 168; Hawkins P. C., b. 2, c. 13, s. 18; Justice v. Gosling, 8 Eng. Law et Eq. R., 475; Taylor v. Alexander, 6 Ham., 144; See also Armstrong v. Campbell, 2 Brevard, 259; Wallsworth v. McCullough, 10 John., 93; Fluck v. Harrington, Breese, 165; Pratt v. Hill, 16 Barb., 303; Kennedy v. Terrel, Hardin, 490; Poulk v. Slocum, 3 Black, 421; Miller v. Grice, 2 Rich., 27, and the American cases generally upon this topic. '
It is to be remarked in the present case, that Mayor Hughes was not acting under a town ordinance; he was acting under the statute incorporating the town, which authorized him to arrest offenders just as Justices of the Peace might do, and he procured the arrest of the plaintiff for the alleged violation of a State law. An ordinance of the town declared that “ when he may know, or information is given by others, of the laws of the corporation having been violated, he shall immediately issue a writ,” &c., &c.
It is perhaps unnecessary to consider whether this town ordinance enlarged his discretion, because he was not acting under it.
So we have the naked question left, can the Mayor of Jackson, acting as a committing magistrate under the State law, order the arrest of any person in the town of Jackson for an imputed violation of the criminal law of the State without view, without confession, and without an information laid before him under oath?
I think he cannot, and that if he does so, he does it at his peril, and that, in case it turns out that there is no foundation for the imputed charge, the Mayor is responsible for the trespass to the party aggrieved. This doctrine with regard to the liability of peace magistrates for their ministerial action has been long and finally settled by the highest authorities in England and America, a few of which have been already cited. But it does not derive its whole or even its main support from arbitrary precedent. It is founded upon a wise forecast and has for its policy no less noble an end than to secure the personal liberty of the citizen from wanton infringement. Somebody must be held responsible for so grave an injury as the arrest of an unoffending citizen. When there is an information under oath, the magistrate is protected, but the party aggrieved has his remedy against the malicious informant. But if a magistrate, without view, without a confession of the party, acting upon an unsworn statement whispered in his ear by some unseen informer, may arrest an innocent citizen for any imputed crime and then escape responsibility under his official mantle, where is there a remedy for so atrocious a wrong ? The framers of our composite system of laws, after drawing from Roman, French and Spanish sources, the great body of rules in civil matters, turned to England as the country where personal rights and the true harmony of liberty *286and law had been better understood than elsewhere. They took thence the great body of our criminal law. It accords with the law of our sister States, wherever the English language is spoken, the rule that a freeman shall not be arrested (unless flagrante delicto) without a previous accusation under oath, is regarded as a sacred shield. Our ancestors, out of abundant caution, amended the Constitution of the United States to declare that “ no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the persons to be seized.” Amendments, Article IV.
And I do not think that the Mayor of the town of Jackson has any greater power than other committing magistrates. It would require something more than a town ordinance to make such an innovation upon the law.
Entertaining these opinions, I cannot join my colleagues in repudiating the time-honored distinction between the civil liability of magistrates when acting judicially, and their liability when acting ministerially. I do not think it was ever repudiated before in Louisiana.
In matters affecting _ the personal liberty of the citizen, I prefer to stand upon the ancient ways.
After reading the record, I am satisfied that the Mayor of the town of Jackson, in this instance, issued a process not according to law, but without such an information as the law requires; that there was no probable cause for the arrest, nor indeed does it seem to have been pretended upon the trial that there was any; and that the Mayor acted heedlessly and wilfully in arresting a citizen without disclosing any source of information, and without an accusation under oath. The bare fact that he is a committing magistrate does not furnish him a legal justification.
For this conduct, I think he is responsible in damages, as a trespasser. But, under the circumstances, I do not find that the jury of the vicinage erred in assessing damages so small as to be almost nominal.
For these reasons, I think the judgment against Nosworthy should be reversed, and that against Hughes affirmed.