
    Roderick v. Whitson. Vance v, Hadfield.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Municipal Corporations—Ordinances—Validity—Noise in Streets.
    A village ordinance declaring it unlawful to go about the streets beating a drum or tambourine, or making any noise with any instrument, for any purpose, without written permission of the village president, under penalty of five dollars, is authorized by the general village act, (Laws N. V. 1870, c. 291, tit. 3, § 3, subds. 2,4,14,) giving power to make ordinances for the preservation of the public peace, and to regulate and prevent on the streets any act endangering person or property, and for the apprehension of persons unnecessarily congregating on the sidewalks or corners,
    3. Same—Delegation op Legislative Power.
    The legislature had power to authorize such an ordinance, and the ordinance has the effect of an enactment of the legislature.
    3. Same—Power op Constarle—Arrest without Warrant.
    Under Laws 1885, c. 193, making it the duty of police constables to keep order iu public places, to arrest persons concerned in noisy assemblages or violating the ordinance, a police constable is justified in arresting persons engaged in the violation of such ordinance, and, the offense being committed in his presence, he may arrest without warrant.
    4. Same—Proceedings apter Arrest.
    The statute contemplates a criminal prosecution against a person violating the ordinance; Laws 1875, c. 385, providing that the magistrate before whom a person arrested by a police constable without process, under the general village act, is brought, must proceed forthwith to hear and determine the charge, and, on conviction, such person must be fined in accordance with the ordinance, and he imprisoned until the fine is paid.
    5. Justices op the Peace—Judicial Acts—Criminal Proceedings.
    The justice before whom a person charged with violating such ordinance is brought, having acquired jurisdiction, his subsequent acts are judicial, and he is not answerable in damages therefor.
    Appeal from circuit court, Dutchess county.
    
      Actions for false imprisonment by Eddie C. Roderick against John B. Whitson, and by John Vance against Levi Hadfield. Plaintiffs appeal.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      H. H. Hustis, for appellants. Samuel K. Phillips, for respondents.
   Dykman, J.

The village of Matteawan, in Dutchess county, is a municipal corporation, organized under the general law of the state of Sew 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 w-ere 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 Eoderick 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 Eoderick 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 8, § 8, subds. 2, 4, 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. 1 Dill. Mun. Corp. § 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. Chapter 192, Laws 1885. And where such offenses were committed in Ms 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 bylaw of the village for the punishment of such offense, and imprisoned in the county jail until such fine is paid, not exceeding 10 days. Our conclusion, therefore, is that the proceedings of the constable and the magistrate were fully justified, and that the complaints were properly dismissed. The judgment in both cases should be affirmed, with costs. All concur.  