¶1 On Application for Rehearing.
¶2 The attorney for the city ojf Birmingham has filed an extensive brief on the application for a rehearing as amicus curise. He cites no statute and no ordinance, and' no decision save that of Childers v. State, 156 Ala. 96, 47 South. 70 (overruled by this decision), which would authorize or justify an arrest like the one in question. The most that any of the decisions or the text-books hold is that the Legislature may authorize an officer to make an arrest for a misdemeanor committed in his presence, or on probable cause that the offense was committed. That the Legislature may, within reasonable bounds,' determine what offenses are felonies, and what, misdemeanors, and what are breaches of the peace, and what, nuisances, etc. There is not to be found a single authority, decision, or text-book, in the library of this court, that sanctions the doctrine that the Legislature, a municipality, or Congress, can determine what is a “reasonable” arrest, within the meaning of the Constitutions, state and federal. Those cited by counsel, as well as all others, hold that the meaning of that term', and of the phrase “due process,” must be determined by what they meant at the common law, and when the Constitution was adopted. Not one of the authorities holds that an officer can legally arrest as for a past misdemeanor on the mere verbal request of a citizen, except the Childers Case. Counsel cites Williams’ Case, 44 Ala. 41, and the line of cases following it. These cases do not hold, or in the opinion say aught, that would authorize or justify the arrest in this ease. They say and decide only that the fifth section of the Bill of, Rights does not prohibit, and was not intended to prohibit, arrests without warrant; but only to prohibit the issuance of a warrant without oath or affidavit. Neither did the common law prohibit all arrests without warrants. It only prohibited “unreasonable arrests, with or without warrants,” and so does the Constitution. All the authorities, state and federal, hold that these provisions of Constitutions, and the whole of the Bill of Rights, are declaratory of the common law. The cases of Higby v. Penn. Ry., 209 Pa. 452, 58 Atl. 859, and State v. Boyd, 108 Mo. App. 518, 84 S. W. 191, only hold that stat *76 utes are valid which authorize officers to make arrests for offenses committed in their presence, or on probable cause that the offense was committed, without a warrant. It is true that there are dicta, in the opinions cited by counsel, which, on casual reading, would seem to support the conclusion that the Legislature can determine what is a “reasonable arrest,” and that the Legislature can authorize arrests without warrant, as for past offenses not committed in the presence of the officer; but there is no decision to that effect except the Childers Case. One of the casos most strongly relied upon by counsel is that of Burroughs v. Eastman, 101 Mich. 419, 59 N. W. 817, 24 L. R. A. 859, 45 Am. St. Rep. 419. This case is several times cited and quoted from. All that it decided was that a statute was valid which authorized an arrest without warrant for a misdemeanor committed in the presence of the officer, though the offense was not a breach of the peace.
¶3 Counsel seems to think that this Michigan case overruled the former decisions of the Michigan court. In this counsel is in error. The case did criticize what it termed “dicta,” in a former case, Robison v. Miner, 68 Mich. 549, 37 N. W. 21; but it did not overrule the case, and did not even criticize the Michigan cases quoted in our decision'—to the contrary, it apparently approved them. This Michigan case (101 Mich. 419, 59 N. W. 817) relied upon by counsel is reported in 24 L. R. A. 859, and 45 Am. St. Rep. 419, with notes. In the later report (45 Am. St. Rep. 419), the note consists of a dissenting opinion of the Chief Justice, concurred in by one of the Associates. In 24 L. R. A. 859, reference is made to 8 L. R. A. 529, where many authorities are collected. Instead of the early Michigan cases being overruled on the question undler consideration, by tbe case in 101 Mich. 419, 59 N. W. 817, the very case and opinion there criticized, as to the exact point under consideration, has been reaffirmed. As late as 157 Mich, page 557, 122 N. W. 223, the case criticized in 101 Mich. 419, 59 N. W. 817, was quoted and reaffirmed, as to the exact point now under consideration. It was there said:
“The constitutional immunity from frrest is discussed by the late Mr. Justice Campbell in Robison v. Miner, 68 Mich. 557 (37 N. W. 25): ‘So far as arrests are concerned, a similar principle applies. Under our system we have repeatedly decided, in accordance with constitutional principles as construed everywhere, that no arrest can be made without warrant except in cases of felony, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception, in cases of breaches of the peace, has only been allowed by reason of the immediate danger to the safety of the community against crimes by violence, and it was confined, even in such cases, to instances where the violence was committed in the presence of the officer. There are not many such cases. The common and statute law provide for very few specified breaches of the peace, and there are none that are riot specified. An indictment charging a person as a peacebreaker, and not with any specified crime, would be good for nothing. Assaults and riotous conduct make up the largest part of the list. But there can he no breach of the peace within the meaning of the law that does not embrace some sort of violent as well as dangerous conduct. The manifest purpose of this statute is to bring certain things that are not breaches of the peace within that denomination to avoid the necessity of a warrant But, as already suggested, the Constitution cannot be so evaded.’ ”
¶4 In a late Michigan case (121 Mich. 475, 80 N. W. 248, 46 L. R. A. 215), an opinion by the Chief Justice says:
“Officers are justified in arresting without a warrant only in cases of felony and breaches of the peace. This is elementary. It is needless to cite authorities.”
¶5 Counsel also seems to ihink that the Supreme Court of the United States has departed from the doctrine announced in the case of Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. That court has never departed from the construction of the fourth and fifth amendments to the federal Constitution placed thereon by Judge Bradley in Boyd’s Case. It was not departed from in the case of Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652. It was only distinguished by Judge Brown from the case then in hand. It was as to the point here in question fully affirmed, and was in part quoted with approval. It has often been quoted and approved, as to its construction of both the fourth and the fifth amendments, and has never been departed from. See Rose’s Notes to that decision. As late as the case of Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, Boyd’s Case is accepted and quoted as to the constructions of these Bills of Rights. In that case, the opinion by Justice Day, it is said:
“The history of this amendment is given with particularity in the opinion of Mi-. Justice Bradley, speaking for the court in Boyd v. United States, 116 U. S. 616 [6 Sup. Ct. 524, 29 L. Ed. 746]. As was there shown, it took its origin in the determination of the framers of the amendments to the federal Constitution to provide for that instrument a Bill of Rights, securing to the American people, among- other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government by which there had been invasions of the home and privacy of the citizens and the seizure of their private papers in support of charges, real or imaginary, made against them.
“In the Boyd Case, supra, after citing Lord Camden’s judgment in Entick v. Carrington, 19 Howell’s State Trials, 1029, Mr. Justice Bradley said (116 U. S. 630 [6 Sup. Ct. 532, 29 L. Ed. 746]): ‘The principles laid dowu in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employés of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right *77 lias never been forfeited by bis conviction of some public offense — it is tbe invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment.’
“In Bram v. United States, 168 U. S. 532, 544 [18 Sup. Ct. 183, 42 L. Ed. 568], this court in speaking by the present Chief Justice of Boyd’s Case, dealing with the fourth and fifth amendments, said: ‘It was in that case demonstrated that both of these amendments contemplated' perpetuating, in their full efficacy, by means of a constitutional provision, principles of humanity and civil liberty, which had been secured in the mother country only after years of struggle, so as to implant them in our institutions in the fullness of their integrity, free from the possibilities of future legislative change.’
“The effect of the fourth amendment is to put the courts of the United States and federal officials, in the exercise of their power and authority, under limitations anl restraints as to the exercise of such power and authority, and to forever secure to the people their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law.
“In Adams v. New York, 192 U. S. 585 [24 Sup. Ct. 372, 48 L. Ed. 575], this court said that the fourth amendment was intended to_ secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law acting under legislative or judicial sanction. This protection is equally extended to the action of the government and officers of the law acting under it.- Boyd’s Case, supra. To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection ■of the people against such unauthorized action.”
In the case of South Carolina v. United States, 199 U. S. 437, 26 Sup. Ct. 110, 50 L. Ed. 261, 4 Ann. Cas. 737, Boyd’s Case is approved and quoted, and in addition it is -said:
“The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being .-a grant of powers to'a government, its language is general, and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms_ conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Dred Scott v. Sandford, 19 How. 393, 426 [15 L. Ed. 691]: ‘It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizens; and, as long as it continues to exist in its present form, it speaks, not only in the same words, but with the same meaning and intent with which it .spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court and make it the mere reflex of the popular opinion or passion of the day.’
“It must also be remembered that the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life ns they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was -to take. Mr. Chief Justice Marshall, in Gibbons v. Ogden, 9. Wheat. 1, 188 [6 L.Ed. 23], well declared: ‘Asmen whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution,, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.’
“One other fact must be borne in mind, and.. that is that in interpreting the Constitution we must have recourse to the common law.”
¶6 Another case much relied upon, by counsel is that of B. & O. R. R. Co. v. Cain, 81 Md. 87, 31 Atl. 801, 28 L. R. A. 688. That is a; Maryland decision. It construes no statute or ordinance, but merely holds that the legality of the arrest in that case was a question for the jury, where there was evidence to show that the party arrested was drunk and disorderly on a car full of passengers and ladies. This arrest was perfectly valid at common law; it was, as Mr. Freeman points opt in a note, merely turning over the party by the conductor to the police officer. It is thus referred to by Mr. Freeman in a note (84 Am. St. Rep. 688). There is nothing in the Maryland opinion contrary to our holding. In the extended note to the case of State v. Evans, 161 Mo. 95, 61 S. W. 590, 84 Am. St. Rep. 669. Many, if not all, the cases up to that date are referred to, and some of them are quoted with approval. See note, 84 Am. St. Rep. 679.
¶7 In Wisconsin, it was decided that an arrest by an officer, without a warrant, for a misdemeanor not committed in his presence, was illegal, even if there was an ordinance attempting to authorize such an arrest. Stittgen v. Rundle, 99 Vis. 78, 74 N. W. 536.
¶8 In an Illinois case that-court said:
“A city marshal or other police officer has no power to arrest for a misdemeanor or a violation of an ordinance unless the offense is actually committed; and when called upon to justify the arrest he must be able to show the offense was committed in his presence. Shanley v. Wells, 71 Ill. 78; North v. People, 139 Ill. 81 [28 N. E. 966]; Lynn v. People, 170 Ill. 527 [48 N. E. 964]; Wice v. C. & N. W. Ry. Co., 93 Ill. App. 266. In an action for trespass and false imprisonment, probable cause and the absence of malice constitute no’ defense. There must be an existing legal cause for the arrest, and that cause must be a law violated. Such a form of action must' be distinguished from an action for malicious prosecution. Hight v. Naylor, 86 Ill. App. 508; Johnson v. Von Kettler, 84 Ill. 315; Shanley v. Wells, 71 Ill. 78; Coffman v. Burkhalter, 98 Ill. App. 304. In this form of an action, belief in the guilt of the party arrested, no matter how strong or well founded in the mind of the officer or person making the arrest, will not justify the deprivation of another of his liberty.” Markey v. Griffin, 109 Ill. App. 219.
¶9 The Illinois case cited by counsel (254 Ill. 624, 98 N. E. 999, Ann. Cas. 1913B, 1058) only holds that a statute may authorize a conductor to arrest persons who are drunk or boisterous on the train. There, the offense was committed in the presence of the officer whom the statute authorized to make the arrest. Counsel cites 1 Bishop on Criminal Procedure, 167, 168. This authority is against the insistence of counsel, and holds *78 With the opinion. Sir. Bishop, after stating specific cases in which arrests as for misdemeanors can be made without warrant, says:
“After the tumult is over, with no prospect of its renewal, it is too late to interfere without judicial process. And other past misdemeanors are within the same rule, namely, that a private person, or even an officer, cannot without a warrant arrest one for a misdemeanor committed on an occasion already passed.” 1 Bish. Crim. Proced. §§ 166, 167, p. 94.
¶10 Then, after enumerating the officers who may make arrests, this author says:
“For a past offense below felony, none of these officers can arrest without a warrant; unless, for example, it is an assault liable to end in felony by the death of the injured person.”
¶11 concurring in this dissent). The question presented for review is the validity of section 839 of the 1905 Code of the City of Birmingham. It reads:
“Arrest Without Warrant When and by Whom Made. — It is the duty of the chief of police and every policeman to arrest without warrant, all persons found violating any ordinance of the city, or whom he has reason to believe has violated any city ordinance, or against whom there is a charge made by any citizen for violating any city or state law, all persons found disturbing the peace by disorderly conduct, all persons found drunk on the .public streets, or in any public place in the city, etc.”
¶12*74 This ordinance was given its present amended, corrected form after the pronouncement made in Gambill v. Schmuck, 131 Ala. 331, 332, 31 South. 604. In the new charter of the city of Birmingham, approved February 23, 1899 (Weakley’s Local Laws of Jefferson County, p. 164), it was provided in subdivision 25 of section 25:
“To pass all laws necessary and proper for the arrest, with or without wdrrants, of any person against whom there is a charge made by any citizen for violating any city or state law; to pass all laws needful for the issue and execution of such warrants.”
¶13 The validity of the ordinance under consideration is pointedly sustained by the authority of Childers v. State, 156 Ala. 96, 47 South. 70. There the defendant, a police officer of the city of Bessemer, was on trial for an) assault and battery “committed,” to quote the statement of that case, “if at all, by making the arrest” of Louis Baggett. The defendant sought to justify through a plea asserting that he arrested Baggett on a “verbal complaint” and that “the charter of Bessemer and its ordinances authorized and empowered its police officers to arrest without warrant.” The court sustained the demurrer to the plea, and this court.concluded there was error in that regard and reversed the judgment. Two objections, based upon the provisions of sections 5 and 89> respectively, of the Constitution of 1901, were taken by the demurrer; and both were held to be without merit. Section 5 of the Constitution of 1901 is the same as section 7 of article 1 of the Constitution of 1868. The inhibition (section 5) was then, and is now, this:
“That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation.”
¶14 In Williams v. State, 44 Ala. 41, decided in 1870, having under consideration the like provision in the Constitution of 1868, this court held that the inhibition was against the issuance of the warrant, “not arrest without warrant.” The inhibition was carried forward into the Constitution of 1875; and this reordination operated to adopt as a part of the section the construction given it in 1870 in Williams v. State, supra. 11 Mich. Ala. Dig. p. 1114, where many decisions are noted. In Ex parte Thomas, 100 Ala. 102, 13 South. 517, decided in 1893, the pertinent pronouncement of the Williams Case, supra, was reaffirmed. In the full light and effect of these decisions', the Constitution of 1901 reordained in section 5 the same provisions that were considered and defined in the Williams and Thomas Cases, supra. Not since the Constitution of 1875 was adopted, with the stated explicit construction put upon it in the Williams Case, could it have been soundly insisted that the subject-matter of what is section 5 of the Constitution of 1901 applied to restrain the otherwise unlimited legislative power to authorize arrests without warrant. In the. Childers Case, itself decided nearly 10 years ago, the court but followed and applied the well-known settled law in this regard, aptly expressing the conclusion as follows:
“There being no constitutional prohibition, state or federal, it is undoubtedly within legislative competency by statute to authorize an officer to make an arrest without a warrant for either a felony or misdemeanor, whether the offense be one> committed in or out of the presence of the arresting officer.”
¶15 The other objection is that section 839 of the 1905 City Code of Birmingham is the product of a legislative charter (subdivision 25 of section 25, quoted ante) authorization that offends section 89 of the Constitution, which reads:
“The Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state.”
¶16 The same provision was in section 50 of article 4 of the Constitution of 1875. It was considered in Ex parte Cowert, 92 Ala. 94, 100, 101, 9 South. 225, 227. The court there held, and accordingly pronounced:
“This conclusion renders it unnecessary to decide whether the General Assembly may authorize a municipal corporation, in which the general law of the state as to licensing the sale of liquors is in force, to prohibit that traffic, the general state law to the contrary notwithstanding. We axe, however, of the opinion, based on exhaustive investigation and consideration, that such authorization would not be violative of article 4, § 50, of the Constitution. We do not thinlc the purpose or effect of that provision is, in any manner, to limit the Legislature in conferring police powers on municipal corporations.’’ (Italics supplied.)
¶17 The construction there taken of section 89, or its parent in the Constitution of 1875, has not been since, even qualified, much less repudiated. The identical provisions of section 50, art. 4, of the former Constitution, were reordained, as section 89, in the Constitution of 1901; whereupon the construction accorded in the Cowert Case conclusively characterizes the effect of section 89. The before-quoted provisions of the Birmingham charter are plainly referable to police power which, the court expressly decided in the Cowert Case, was not within the restriction of section 50, art. 4, now section 89 of the present organic law. In view of the established construction of section 89 of the Constitution, it is very clear and certain that section 839 of the 1905 Code of Birmingham was not invalid because the charter (subdivision 25 of section 25, ante) offended section 89 of the present organic law. As was held in the Childers Case, supra, there is nothing whatever in the Bill of Rights or elsewhere in the Constitution of 1901 that restrained or restrains the Legislature in authorizing the arrest of persons without warrant.
¶18 Aside from the provisions of section 89— which is addressed to the restraint of the Legislature, only, with respect to matters not referable to the police power — there is a *75 rule of restraint that inhibits municipal corporations from enacting ordinances inconsistent with state laws in virtue of charter powers that are general, not specific. The rule is thus correctly stated in Dunn v. Wilcox County, 85 Ala. 147, 4 South. 662:
“The American theory of municipalities is that the legislation permitted to be exercised by them is a mere delegation of the power of the state; and hence it is an established rule that all laws or ordinances enacted by virtue of this delegated power are, in a certain sense, as much part of the general system of legislation as are the laws of the state; and ‘it is therefore necessary that they should be consistent with the state laws.’ … It is accordingly a familiar rule on this subject that municipal by-laws and ordinances, in conflict with the general law, will be adjudged void, unless they he clem-Vy awthorUtei by the charter of the particular town or city enacting them. • … ” (Italics supplied.)
¶19 This doctrine .was recently advisedly applied in Ward v. Markstein, 196 Ala. 209, 215-217, 72 South. 41. It is also announced in McQuillin on Municipal Ordinances, § 16.
¶20 In the instance now under consideration, the Legislature, through the quoted charter provision, specifically authorized the city to empower its police officers to arrest without warrant; and the ordinance (section 839) conformed, literally, to the specific charter grant. Under that specific grant, the authority to arrest without warrant was upon the condition that a “charge” should be made by “any citizen.” The term “charge,” as employed in the charter and in section 839 of the City Code of 1905, did not contemplate or intend a charge expressed in the form or through the method of a written information or an affidavit. The charge, within those laws, was made if advice of an offense against the laws was verbally communicated to the police officer by “any citizen.” As therein used, the term signified an accusation, however communicated, by “any citizen” that a person had committed an offense against the laws mentioned in the charter (subdivision 25, § 25, of the charter). It cannot be supposed that the Legislature would authorize arrests by municipal officers, without warrant, and yet burden the purpose manifested thereby with the exaction that, to meet, would require the complaining citizen to seek out some one authorized to take affidavits who, generally, is also authorized to issue warrants for the arrest of offenders so formally accused. The legislative purpose was to afford the means for prompt arrests. This purpose would not have been accomplished if a formal, written, verified accusation had been required. Manifestly, the object intended would not have been attained. The reason inspiring the lawmakers to thus discriminatively provide is succinctly indicated in McQuillin on Municipal Ordinances, § 17, and notes.
¶21 Reference to the opinion of this court on former appeal (192 Ala. 675, 682, par. 10, 69 South. 69) discloses that the question now presented was not decided.
¶22 It is hardly necessary to add that the adoption of the Municipal Code (Pol. Code, c. 32; Acts 1907, p. 790 et seq.) did not effect the repeal of section 839 of the 1905 City Code of Birmingham. Sloss-Sheffield Co. v. Smith, 175 Ala. 260, 57 South. 29.
¶23 In my opinion the writ prayed for should be granted, the conclusion of the Court of Appeals on the question stated being laid in error.