
    Eddie C. Roderick, App’lt, v. John B. Whitson, Resp’t. John Vance, App’lt, v. Levi Hadfield, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    1. Municipal corporations—Ordinances against noise £n streets— Construction—Laws 1870, chap. 291, tit. 3, § 3, surds. 2-4-lá.
    By the provisions of the general law (Laws 1870, chap. 291) under which the village of Matteawan was incorporated, the trustees are invested with power to make ordinances and by-laws for the preservation of the public peace and-order, and to regulate and prevent any act, amusement or practice endangering property or person on the streets, sidewalks or public grounds, and for the apprehension and punishment of persons unnecessarily congregating upon the sidewalks or corners. Held, sufficiently comprehensive to justify the passage of an ordinance by the village rendering it unlawful for any person to go about or remain in any of the streets or side-streets beating a drum or tambourine, or making any noise with any instrument, for any purpose, without the written permission of the president of the village, under a penalty of five dollars for each offense.
    3. Same—Delegation of legislative foweb.
    The legislature can delegate to municipal corporations the power to make such a by-law, and it has the same force and effect as a legislative enactment.
    3. Same—Police constable—Poweb to arrest without warrant.
    Under Laws 1885, chap. 193, giving a police constable power to keep order in public places in the village, to arrest persons concerned in noisy assemblages, or who are breaking the peace or violating the charter, bylaws or ordinances of the village, and to convey them forthwith before the proper authority, where such offenses are committed in his presence, he possesses the power to make such arrests without warrant.
    4. Same—Justice of the peace—Jurisdiction of.
    When the magistrate before whom proceedings are instituted for a violation of the ordinance, acquires jurisdiction in the first instance, his subsequent acts are judicial and he cannot be made answerable in damages therefor.
    5. Same—Criminal proceedings.
    The statute contemplates a criminal proceeding against persons who violate the ordinance in question. Laws 1875, chap. 885.
    Appeal from a judgment of the Dutchess county circuit court, dismissing the plaintiffs complaint.
    
      H. H. Hustes, for app’lts; Samuel K. Phillips, for resp’ts.
   Dykman, J.

— The village of Matteawan, in Dutchess county, is a municipal corporation organized under the general law of the state of Mew York, for the incorporation of villages, passed in 1870.

In October, 1886, the board of trustees of the village passed an ordinance of the village which rendered it unlawful for any person to go about or remain in any of the streets or sidewalks of the village, beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without the written permission of the president of the village, under a penalty of five dollars for each offense.

On the 20th day of December, 1887, the plaintiffs in these actions, with a number of other persons, were marching along Main street in the village of Matteawan, beating a drum and a tambourine, which is a small drum, and playing upon other musical instruments, and they were arrested by a police constable while so engaged in the violation of the ordinance, without a warrant, and taken to the office of the defendant, Whitson, who was a justice of the peace of the town where the village is located. The defendant was not found, and the plaintiffs were confined in the village jail until the next morning, when they were taken before the defendant and tried and convicted for a violation of the village ordinance, and sentenced to pay a fine of five dollars and stand committed to the common jail of the county until the fine was paid, not to exceed five days.

The plaintiffs were committed to the jail and discharged the same day by the county judge of Dutchess county upon a writ of habeas corpus.

Thereupon the plaintiff, Roderick, brought an action for false imprisonment against the justice of the peace, and'the plaintiff, Vance, brought the same kind of action against the police constable.

The complaints in both actions were dismissed, and there was a stipulation that the decision in one case should control the others, and so the plaintiff, Roderick, appealed from the judgment in his case.

As the case is presented to us, the justification of the defendants for the arrest and imprisonment of the plaintiffs must be found in the charter and by-laws of the village of Matteawan, and we must ascertain whether they are sufficient for their protection.'

By the provisions of chapter 291 of the Laws of 1870, which is the general law under which the village of Matteawan was ■ incorporated, the trustees are invested with power to make ordinances and by-laws for the preservation of the public peace and order, and to regulate and prevent any act, amusement or practice endangering property or person on the streets, sidewalks or public grounds, and for the apprehension and punishment of persons unnecessarily congregating upon the sidewalks or corners. Title 3, section 3, subs. 2, 4 and 14.

These statutory provisions are sufficiently comprehensive to justify the passage of the ordinance under which the defendants proceeded, and the ordinance was broad enough to include and prohibit the conduct for which the plaintiffs were arrested.

It was also competent for the legislature to delegate to* the municipal corporations the power to make such a by-law, and it has the same force and effect as a law passed by the legislature. Dillon on Municipal Corporations, § 245.

As regards the police constable, he had the power and it was his duty to keep order in public places in the village, to arrest persons concerned in noisy assemblages, • or who were breaking the peace or violating the charter or the by-laws or ordinances of the village, and convey them forthwith before the proper authority to be dealt with according to law, and keep and retain such persons in custody until committed or discharged. Laws of 1885, chap. 192.

And where such offenses were committed in his presence, he possessed the power to make such arrests without warrant.

The appellant challenges the proceedings before the magistrate, but the record before us discloses no irregularity; but if he acquired jurisdiction in the first instance, as we have seen he did, his subsequent acts were judicial,' and he cannot be made answerable in damages therefor.

We think, however, that the statute contemplates a criminal proceeding against persons who violate the ordinance in question. By chapter 385 of the Laws of 1875, when any person is arrested by a police constable without process under the general act of 1870 for the incorporation of villages, and such person is brought before the justice of the peace, such magistrate must proceed forthwith to hear, try and determine the complaint or charge on which such person was so arrested, and such person must, upon conviction by the justice, be fined by such magistrate in accordance with any ordinance or by-law of the village for the punishment of such offense, and imprisonment in the county jail until such fine is paid, not exceeding ten days.

Our conclusion, therefore, is that the proceedings of the constable and the magistrate1 were fully justified, and that the complaints were properly dismissed.

The judgment in both cases should be affirmed, with costs.

All concur.  