¶1 Admitting that the ordinance in question is a valid one, it no where coiilbrs, and it could not constitutionally confer upon a constable, a ministerial officer, the power to arrest and imprison for a penalty incurred or for any other violation of law, except it may be for safe custody. Men may not be arrested, imprisoned and released upon the judgment or at the discretion of a constable or any one else. If the alleged offence be criminal in its character and committed in the presence of the officer, he may arrest and take the offender before a magistrate for trial. If the offence is penal, only, and not a misdemeanor, the penalty can -be recovered by action only. Commissioners of Washington v. Frank, 1 Jones, 436; Bat., Rev., chap. Ill sec. 20.
¶2 If the offence be a misdemeanor, then it must be tried as other misdemeanors. Here the prosecutor was not sued for the penalty of ten dollars imposed by the ordinance, nor was he arrested and taken before a magistrate for trial for a criminal offence ; but the constable arrested and imprisoned him, not for safe keeping until he could be tried befóte a competent tribunal, but he imprisoned him until he became sober, according to his judgment, and then released hum. The constable thus constituted-himself the judge, jury and executioner. This is the best description of despotism.
¶3 It is unnecessary to decide whether the ordinance, froiff its generality and vagueness, is not inoperative and void.
¶4*251 Upon the special verdict, the defendant is, in law, guilty. There is error. This will be certified, to the end that the
¶5 Court below may proceed to judgment.
¶6 Pee. Cukiam. Judgment reversed.