James v. Sweet

Malicious Prosecution — Evidence—Malice. * 1. In an action for a malicious prosecution, the fact that the city attorney advised that the ordinance under which plaintiff was arrested was void is not evidence of malice. 2. Citizens and city officers are justified in taking proceedings in the courts to test the validity of an ordinance, and are not subject to an action for malicious prosecution, if they did not act maliciously or oppressively. 3. Plaintiff was not put under any restraint by the officer until after conviction. He was urged to appeal his case before commitment, and avoid confinement, but by the advice of his attorney went to jail, and remained overnight, where he was not treated as a prisoner, but was provided with a good room and bed, and ate his meals with the sheriff. Held, that the court properly directed a verdict for the defendants.

Error to Washtenaw; Kinne, J. Case by Luther L. James against Zenas Sweet and others for malicious prosecution. From a judgment for defendants on verdict directed by the court, plaintiff brings error.' Plaintiff sued the defendants in an action for malicious prosecution. The court directed a verdict for the defendants. Section 88, subd. 23, of the charter of the city of Ann Arbor (Act No. 331, Local Acts 1889, as amended by Act No. 336, Local Acts 1895), confers upon the common council certain powers, among which is the power to license and regulate— “Auctioneers, peddlers, pawnbrokers, junk dealers, dealers in second-hand goods and merchandise, and transient tradesmen, auctions, peddling, pawn brokerage, taverns, hotels, victualing houses, restaurants, saloons, [or other houses for furnishing meals, food, or drink, and keepers of billiard tables and ball alleys not used for gaming. Whoever occupies any premises within the city of Ann Arbor for a temporary period only, and is not assessed for taxes in said city, and who offers for sale goods, wares, or merchandise, is hereby defined and declared to be a transient tradesman.” Under this authority the common council enacted the following ordinance: “Section 1. No person or persons, firm or corporation,1 shall ply the vocation of transient trader in the city of Ann Arbor without first obtaining a license as herein provided. “ Sec. 2. A transient trader, as used in this ordinance, shall be construed to mean a person, by himself or in company with others, who occupies premises within the city for a temporary period, and is not assessed for taxes in the city, and who offers goods, wares, or merchandise for sale. “ Sec. 3. Before any license shall be granted under this ordinance, the person or persons, firm or corporation, desiring the same shall make application to the common council in writing, specifying the kind of business the applicant proposes to engage in, the time it is to be carried on, and the place where such goods are to be sold, and shall, at the time of making such application, deposit with the city clerk of said city the amount of the license fee required by this ordinance. “Sec. 4. The license fee required by this ordinance shall be as follows: For the right and privilege of selling goods at retail by sample, ten dollars ($10.00) per day for the first ten days, and five dollars ($5.00) per day for each and every day in addition thereto. For the right and privilege of selling goods from a stock actually kept on hand, from which selections are made by the purchaser, ten dollars ($10.00) per day for the first twenty days, and three dollars ($3.00) for each and every day in addition thereto. “Sec. 5. Nothing in this ordinance shall be construed to prohibit the sale of goods, wares, or merchandise to local merchants and dealers who are already engaged in or about to engage in business in said c ity of Ann Arbor. “ Sec. 6. The sum so paid by such party or parties may be remitted by the order of the city council, provided it is shown that the party or parties to whom such license has been issued have become a permanent resident of this city, and that the stock of goods owned and controlled by them has become subject to assessment and has been wholly assessed by the city assessor of the city of Ann Arbor, and that the taxes thereon have been paid. “Sec. 7. Any person violating any of the foregoing provisions of this ordinance shall, on conviction thereof, be punished by a fine not to exceed one hundred dollars, or imprisonment in the city lockup or the Washtenaw county jail not to exceed ninety days, or both fine and imprisonment, in the discretion of the court.” Plaintiff was arrested under this ordinance upon' complaint of defendant Sweet, who was the city marshal; was tried in a justice’s court by a jury, found guilty, appealed his case to the circuit court, and was there acquitted under the instruction of the circuit judge, who held the ordinance void. Plaintiff and his copartners were transient traders within the meaning of the charter and ordinance. They made no defense upon the facts. For the purpose of this case, therefore, the question of whether they were “transient traders” is eliminated by a verdict of the jury. The record does not show what reasons were given by the circuit judge in directing the verdict. The declaration contains counts for false imprisonment and malicious prosecution. Counsel for plaintiff in this court insist only upon the count for malicious prosecution, as that is the only question they have argued.