(dissenting). I am not prepared to overrule the doctrine of Robison v. Miner, 68 Mich. 549. The statute under consideration in that case, as in the present case, empowered officers to arrest without .process, and it was with reference to that provision that the language of Mr. Justice Campbell, referred to by my Brother Montgomery, was used, and there is no room for saying that that language was unnecessary to a determination of the question there involved. The evident intent of the Legislature in the provision under consideration was to bring the offense aimed at within the category of breaches of the peace, in order to subject it to the incidents of offenses of that class.
In Altor v. Wayne Co. Auditors, 48 Mich. 76, 97, Mr. Justice Campbell says:
“The Constitution has also provided that no one shall be deprived of liberty without due process of law, and ha's provided that no warrant shall issue except upon oath or affirmation establishing probable cause. It has been settled for centuries, and the doctrine has been recognized here,' that except in cases of reasonable belief of treason or felony, or breach of the peace - committed in presence of an officer, there is no due process of law without a war*428rant issued by a court or magistrate upon a proper showing or finding.”
As was said by Mr. Justice Cooley in Weimer v. Bunbury, 30 Mich. 201, 213:
“The Constitution makes no attempt to define such process, but assumes that custom and law have already settled what it is. Even in judicial proceedings, we do not ascertain from the Constitution what is lawful process, but we test their action by principles which were before the Constitution, and the benefit of which we assume that the Constitution was intended to perpetuate. * * * The bills of rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments, rather than reformatory, and they assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law, and thus secured against violation. We are, therefore, of necessity, driven to an examination of the previous condition of things, if we would understand the meaning of due process of law, as the Constitution employs the term.”
It may well be asked what principle was perpetuated or secured against abrogation or violation, if what constitutes due process of law is made to depend upon the will of the Legislature as expressed in any one of our many and varied municipal charters. If this constitutional provision be not regarded as a limitation of the power of the Legislature, then the statute is in each instance the test of authority, and the constitutional provision is without office or force. That provision is not necessary to support or protect the statute. The latter is to be construed in subordination to the Constitution, and is to be tested by that instrument. The term “ due process of law ” had a well-settled meaning when the Constitution was adopted, of which the framers of that instrument must be presumed to have had knowledge, and with reference to which it must be presumed that they acted. Subsequent legislation *429cannot change the meaning or effect of a constitutional provision. A statute may provide for a removal from office, or for the taxation or taking of property, without notice or hearing; but, although such would be a process provided by law, it will not be contended that a removal or a taking thereunder would not be a plain violation of the Constitution. Such statutory process, when tested by principles which were before the Constitution, would be found to lack essential requisites of due process. The Constitution nowhere in express terms speaks of notice or a day in court, but, notwithstanding, these are universally recognized as essential incidents of due process. In Weimer Bunbury, supra, Mr. Justice Cooley subjected the process under consideration in that case to the test of settled rules which antedated the Constitution. Any other test would violate a cai’dinal rule of constitutional interpretation, subject - provisions designed for the protection of persons and property to legislative modification, and make the meaning of a term employed in the fundamental law, which term had, at the time of the adoption of the Constitution, a well-known signification, depend upon the language used in a municipal charter or ordinance.
The facts in many of the cases cited by my Brother Montgomery bring the cases clearly within rules as laid down by this- Court.
In State v. Cantieny, 34 Minn. 1, respondent and his companions were intoxicated, noisy, and disorderly in the night-time, in a public street. An officer undertook to disperse them, and a scuffle ensued, during which an attempt was made to take away from the officer his baton. He undertook to az-rest one of them, and was shot. Not only were the' parties guilty of a distuz-bance of public tranquillity, but of a bz’each of peace against the officer.
In Beville v. State, 16 Tex. App. 70, the party was *430intoxicated in a public place, and in the act of committing a breach of the peace.
In Wiltse v. Holt, 95 Ind. 469, the officer, having knowledge that the appellee had previously threatened the life of one Bogart, and hearing a .disturbance in Bogart’s office, and seeing the appellee emerge from, the office in an intoxicated condition, wild with excitement and anger, arrested him.
In Bryan v. Bates, 15 Ill. 87, it was held that the powers of cities and their ministerial officers were not changed by the new constitution. The arrest was of a person who was drunk, and was disturbing the peace by violent, tumultuous language, calculated to provoke a breach of the peace.
In Scircle v. Neeves, 47 Ind. 289, the party arrested was in the public streets in a state of gross intoxication, unable to walk or stand without support, and when found was prostrated upon the sidewalk, and was of course an actual obstruction to travel, a disgusting and offensive spectacle, and the situation was calculated to attract a curious crowd. Com. v. Cheney, 141 Mass. 102, was a case of like character.
In O’Connor v. Bucklin, 59 N. H. 589, the arrest was made under a statute providing that any officer, upon view of any crime or breach of the peace, or offense against the police, might arrest without warrant; but it does not appear just what the offense charged was. In Wiltse v. Holt, 95 Ind. 469, Wahl v. Walton, 30 Minn. 506, and Taaffe v. Slevin, 11 Mo. App. 507, there had been an actual breach of the peace.
Bouvier defines a breach of the peace as a violation of public order; an act of public indecorum. In People v. Johnson, 86 Mich. 175, a breach of the peace was defined as a violation of public order, a disturbance of the public *431tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace; and it was held that to be intoxicated and yelling on the public streets, in such a manner as to disturb the good order and tranquillity of the village, is an act of open violence, and a breach of the peace, which, if committed in the presence of an officer, will justify an arrest without warrant. In Davis v. Burgess, 54 Mich. 514, it was held, that the use of grossly indecent and profane language towards another upon the public street, and in the presence of others, is a breach of the peace.
In White v. Kent, 11 Ohio St. 550, the ordinance prohibited sales at auction in the public streets. The court held that the care, supervision, and control of the streets were committed to the municipality; that it was the duty of the city to secure to the public the unobstructed use of the streets, and thus promote the order, comfort, and convenience of the inhabitants; and that whatever unnecessarily and unreasonably interfered with the primary and appropriate use of the street was a nuiaance.
The cases of Jones v. Root, 6 Gray, 435, and Mason v. Lothrop, 7 Id. 354, involve the precise question which was disposed of by this Court in Robison v. Miner, supra.
Roberts v. State, 14 Mo. 138, was an arrest for vagrancy, as defined by a municipal ordinance. But that case is clearly opposed to Way’s Case, 41 Mich. 299. In that case, vagrancy was distinguished from disorderly conduct and breaches of the peace, and it was held that its statutory definition could not be enlarged by municipal ordinance. And, with respect to the main question, Mr.
Justice Campbell says:
“It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases 'where the public security requires it; and this has only been recog*432n’ized in felony, and in breaches of the peace committed in presence of the officer. Quinn v. Heisel, 40 Mich. 576; Drennan v. People, 10 Id. 169. It could not have been contemplated — inasmuch as we are bound to suppose the Legislature intended .to respect constitutional safeguards— that the station-house sessions would have occasion to deal with many cases of misdemeanors, nor with any when an arrest could be safely postponed. The occasions which would justify arrest without process must be very rare indeed in cases of vagrancy; and, in a city no larger than Detroit, persons charged with disorderly conduct can very generally be dealt with more legally and justly ip. the regular way, inasmuch as very much of it involves no immediate danger to public or private security.”
It seems to me that what is meant by the term “due process of law,” as employed in the Constitution, is not only well settled by this Court, but that its signification has been arrived at by the proper recognition of a well-recognized rule of constitutional interpretation.
Long, J., concurred with McGrath, C. J.