WALKER, J.
In the imposition of imprisonment upon the plaintiff, th'e defendants certainly acted as judges. The general rule is, that there is no responsibility to the injured party, for errors committed by officers in the exercise of judicial functions. An exception to the rule is admitted, where the judicial officer of an inferior court not of record exercises an authority not within the scope of his jurisdiction. — Duckworth v. Johnson, 7 Ala. 578; Hamilton v. Williams, 26 Ala. 527; Yates v. Lansing, 5 Johns. 282; S. C., 9 Johns. 394; Piper v. Pearson, 2 Gray, 120; Clark v. May, 2 Gray, 410; Sullivan v. Jones, 2 Gray, 570; Easton v. Calendar, 11 Wendell, 90; Jenkins v. Waldron, 11 Johns. 114; Butler v. Kent, 19 Johns. 223; Cunningham v. Buncklin, 8 Cow. 178; Wilson v. Mayor, &c., 1 Denio, 599; Ambler v. Church, 1 Root, 211; Reid v. Hood & Burdine, 2 N. & M. 168; Lining v. Bentham, 2 Bay, 1; State v. Johnson, 2 Bay, 385; Moore v. Ames, 3 Caines’ R. 170; Harman v. Tappenden, 1 East, 555; Greenville v. College of Physicians, 12 Mod. 386; 4 Phillips on Ev. 170, 171, 172.
The many authorities cited so fully sustain the propositions above stated, that they cannot be regarded as open to controversy in a tribunal which respects the precedents in the law. It is a sequence from those propositions, that the justification of the defendants is dependent upon the question of jurisdiction.
[2.] In Ex parte Burnett, 30 Ala. 461, we decided, that under the 8th section of the charter of the town of Cababa, the town council had the power to imprison, for a term not exceeding three days, any person who had incurred a penalty for a breach of the by-laws of the corporation; but that the incurring of the penalty for a violation of the by-law must be ascertained in an appropriate judicial proceeding, before imprisonment could be superadded by the town council. The jurisdiction of the council, its authority to inflict the imprisonment, is by that decision made to depend upon the antecedent judicial ascertainment of the fact, that a penalty imposed by the by-law had been incurred. Conceding, for the sake of brevity, without passing upon it, the fact that the plaintiff had [732]*732violated a valid by-law, and thus rendered himself liable to the imposition of a prescribed fine, we proceed to inquire whether there was a valid judicial proceeding’ adjudging the fine against him.
The clerk of the town council issued a precept, requiring the town marshal to arrest the plaintiff, and bring him before the town council, to answer a complaint against him for retailing spirituous liquors in the town of Cahaba without a license. The entry on the minute-book of the proceedings of the council, upon the appearance of the plaintiff, is in'the tollo wing words :
“Town Council of Cahaba ^ Defendant is charged with vs. Vretailing spiritous liquors in James T. Burnett. J the town of Cahaba, without a license from the town council, on Monday, the 4th day of February, 1856. J. T. Burnett admitted the charge as alleged, whereupon he is declared guilty by the council of a violation of the ordinance forbidding the same, and fined fifty dollars and costs. The marshal is ordered to take said defendant into custody, until the same are paid ; and if said fine and costs are not paid forthwith, the marshal is ordered to confine said J. T. Burnett in the county jail for three days.”
' The plaintiff was summoned to answer by the council, through its clerk; he was brought up for trial before the council, and, upon his confession, his guilt in the particular alleged was ascertained, and a fine of fifty dollars adjudged by the cóuncil, and three days imprisonment was directed as the penalty for the non-payment of the fine and costs.
If there was any adjudication of the fine, preliminary to the imprisonment, it was made by the cowicil, when its members were acting aggregately as a council. The charter of the corporation bestows no authority upon the council to render such a judgment. The 5th section of the charter bestows upon the council the power to “ affix fines” for ofienses against the by-laws, to be recovered before any magistrate. A magistrate is thus designated as [733]*733the officer clothed with jurisdiction over the matter of the fines affixed by the council.
Section six of the charter provides, “that the intend-ant, and each and every one of the council, ex officio, shall be vested with all the powers and authorities that justices of the peace are vested with by the laws of this State, and shall and may exercise the same within the limits of said town, under the same penalties and restrictions to which justices of the peace of this State are and shall be subject and liable.” The second section of the amendment to the charter restricts the authority conferred by the 5th section of the original charter upon the intendant and -each and every one of the council, to the enforcing the by-laws and ordinances of the corporation. By virtue of, these sections of the original charter and the amendment of it, each individual composing the council is constituted, mrtute officii, a magistrate, before whom a recovery of fines for violations of the by-laws might be had; but the language will not permit the conclusion, that the same power is bestowed upon the council.
It is said in Dalton’s Justice, 24, “that whatsoever one justice of the peace alone may do, (either for the keeping of the peace, or in other execution of the commission or statutes,) the same also may lawfully be done and performed by any two or more justices.” — See, also, 3 Burns’ Justice, 133. Upon the same principle, it may be that all the members composing the council 'might unite in the performance of the judicial acts, falling within the scope of the jurisdiction bestowed upon each one of them. In that case, the act done would be the judgment of the several individuals composing the council, acting in their •capacity of magistrates. The judgment adjudging the fine against the plaintiff is not the act of the magistrates who are the intendant and councilmen; but it is the act of a tribunal created by the charter, designated as the council, and clothed with certain legislative and judicial powers, distinct from the powers conferred upon the members separately.
To constitute a court, the mere presence of the magistrate is not sufficient. The judicial officer must be act[734]*734ing in his judicial capacity, in order that his acts may have a judicial character. — 2 Bacon’s Abr. 616; 3 Bouv. Inst.; Day v. Day, 4 Md. 262; Willis v. Willis, 13 Johns. 268. A magistrate, or any number of magistrates, can perform none of the functions appertaining to them as magistrates, except when acting in that capacity. Although it might happen that every member of a court-martial might be composed of justices of the peace ; yet any judgment of that court, upon matters within the civil or criminal jurisdiction of justices of the peace, would be void. So here, the judgment for the amount of the fine was the act of the council as a council; and, although the council was composed of persons having authority to act as magistrates, the judgment was not the act of them, or any of them, in the capacity of'magistrates. The judgment was the act of the artificial person created by the statute, and not of the several magistrates who were the individuals who, when united in one legislative and judicial body denominated the council, composed the artificial person.
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WALKER, J.
In the imposition of imprisonment upon the plaintiff, th'e defendants certainly acted as judges. The general rule is, that there is no responsibility to the injured party, for errors committed by officers in the exercise of judicial functions. An exception to the rule is admitted, where the judicial officer of an inferior court not of record exercises an authority not within the scope of his jurisdiction. — Duckworth v. Johnson, 7 Ala. 578; Hamilton v. Williams, 26 Ala. 527; Yates v. Lansing, 5 Johns. 282; S. C., 9 Johns. 394; Piper v. Pearson, 2 Gray, 120; Clark v. May, 2 Gray, 410; Sullivan v. Jones, 2 Gray, 570; Easton v. Calendar, 11 Wendell, 90; Jenkins v. Waldron, 11 Johns. 114; Butler v. Kent, 19 Johns. 223; Cunningham v. Buncklin, 8 Cow. 178; Wilson v. Mayor, &c., 1 Denio, 599; Ambler v. Church, 1 Root, 211; Reid v. Hood & Burdine, 2 N. & M. 168; Lining v. Bentham, 2 Bay, 1; State v. Johnson, 2 Bay, 385; Moore v. Ames, 3 Caines’ R. 170; Harman v. Tappenden, 1 East, 555; Greenville v. College of Physicians, 12 Mod. 386; 4 Phillips on Ev. 170, 171, 172.
The many authorities cited so fully sustain the propositions above stated, that they cannot be regarded as open to controversy in a tribunal which respects the precedents in the law. It is a sequence from those propositions, that the justification of the defendants is dependent upon the question of jurisdiction.
[2.] In Ex parte Burnett, 30 Ala. 461, we decided, that under the 8th section of the charter of the town of Cababa, the town council had the power to imprison, for a term not exceeding three days, any person who had incurred a penalty for a breach of the by-laws of the corporation; but that the incurring of the penalty for a violation of the by-law must be ascertained in an appropriate judicial proceeding, before imprisonment could be superadded by the town council. The jurisdiction of the council, its authority to inflict the imprisonment, is by that decision made to depend upon the antecedent judicial ascertainment of the fact, that a penalty imposed by the by-law had been incurred. Conceding, for the sake of brevity, without passing upon it, the fact that the plaintiff had [732]*732violated a valid by-law, and thus rendered himself liable to the imposition of a prescribed fine, we proceed to inquire whether there was a valid judicial proceeding’ adjudging the fine against him.
The clerk of the town council issued a precept, requiring the town marshal to arrest the plaintiff, and bring him before the town council, to answer a complaint against him for retailing spirituous liquors in the town of Cahaba without a license. The entry on the minute-book of the proceedings of the council, upon the appearance of the plaintiff, is in'the tollo wing words :
“Town Council of Cahaba ^ Defendant is charged with vs. Vretailing spiritous liquors in James T. Burnett. J the town of Cahaba, without a license from the town council, on Monday, the 4th day of February, 1856. J. T. Burnett admitted the charge as alleged, whereupon he is declared guilty by the council of a violation of the ordinance forbidding the same, and fined fifty dollars and costs. The marshal is ordered to take said defendant into custody, until the same are paid ; and if said fine and costs are not paid forthwith, the marshal is ordered to confine said J. T. Burnett in the county jail for three days.”
' The plaintiff was summoned to answer by the council, through its clerk; he was brought up for trial before the council, and, upon his confession, his guilt in the particular alleged was ascertained, and a fine of fifty dollars adjudged by the cóuncil, and three days imprisonment was directed as the penalty for the non-payment of the fine and costs.
If there was any adjudication of the fine, preliminary to the imprisonment, it was made by the cowicil, when its members were acting aggregately as a council. The charter of the corporation bestows no authority upon the council to render such a judgment. The 5th section of the charter bestows upon the council the power to “ affix fines” for ofienses against the by-laws, to be recovered before any magistrate. A magistrate is thus designated as [733]*733the officer clothed with jurisdiction over the matter of the fines affixed by the council.
Section six of the charter provides, “that the intend-ant, and each and every one of the council, ex officio, shall be vested with all the powers and authorities that justices of the peace are vested with by the laws of this State, and shall and may exercise the same within the limits of said town, under the same penalties and restrictions to which justices of the peace of this State are and shall be subject and liable.” The second section of the amendment to the charter restricts the authority conferred by the 5th section of the original charter upon the intendant and -each and every one of the council, to the enforcing the by-laws and ordinances of the corporation. By virtue of, these sections of the original charter and the amendment of it, each individual composing the council is constituted, mrtute officii, a magistrate, before whom a recovery of fines for violations of the by-laws might be had; but the language will not permit the conclusion, that the same power is bestowed upon the council.
It is said in Dalton’s Justice, 24, “that whatsoever one justice of the peace alone may do, (either for the keeping of the peace, or in other execution of the commission or statutes,) the same also may lawfully be done and performed by any two or more justices.” — See, also, 3 Burns’ Justice, 133. Upon the same principle, it may be that all the members composing the council 'might unite in the performance of the judicial acts, falling within the scope of the jurisdiction bestowed upon each one of them. In that case, the act done would be the judgment of the several individuals composing the council, acting in their •capacity of magistrates. The judgment adjudging the fine against the plaintiff is not the act of the magistrates who are the intendant and councilmen; but it is the act of a tribunal created by the charter, designated as the council, and clothed with certain legislative and judicial powers, distinct from the powers conferred upon the members separately.
To constitute a court, the mere presence of the magistrate is not sufficient. The judicial officer must be act[734]*734ing in his judicial capacity, in order that his acts may have a judicial character. — 2 Bacon’s Abr. 616; 3 Bouv. Inst.; Day v. Day, 4 Md. 262; Willis v. Willis, 13 Johns. 268. A magistrate, or any number of magistrates, can perform none of the functions appertaining to them as magistrates, except when acting in that capacity. Although it might happen that every member of a court-martial might be composed of justices of the peace ; yet any judgment of that court, upon matters within the civil or criminal jurisdiction of justices of the peace, would be void. So here, the judgment for the amount of the fine was the act of the council as a council; and, although the council was composed of persons having authority to act as magistrates, the judgment was not the act of them, or any of them, in the capacity of'magistrates. The judgment was the act of the artificial person created by the statute, and not of the several magistrates who were the individuals who, when united in one legislative and judicial body denominated the council, composed the artificial person. The judgment for the fine was rendered by a tribunal without authority, and was void.
If it appeared that the fact, upon which the jurisdiction of the council over the matter of the imprisonment depeuded, was judicially considered, and adjudged by the council, then the defendants would not be liable for their mei*e error of judgment. Every judicial tribunal, invested with authority to be exercised in a certain contingency, has authority to inquire and ascertain whether the eon-gency has occurred. Where jurisdiction depends upon the existence of a preliminary fact, there is authority to decide whether that fact exists. A court is entitled to as full protection against an error of judgment in reference to the existence of the jurisdictional fact, as in reference to the merits of the suit. — Freeman v. Cornwall, 10 Johns. 470; Fox v. Wood, 1 Rawle, 143; Harrington v. Comm’rs, &c., 2 McCord, 400; 4 Phillips on Ev. 209, 210; Wyatt’s Adm’r v. Rambo, 29 Ala. 510.
But this principle cannot avail the defendants in ibis case. They did not decide upon the existence of the jurisdictional fact. They decided that the plaintiff had [735]*735incurred, a penalty, but not that a judgment for tbat penalty bad been rendered by a competent court. They manifestly acted upon the apprehension that they had authority to adjudge the fine and inflict the imprisonment, unqualified by the requisition of the jurisdictional fact, which was held to be necessary in Ex parte Burnett.
"We adhere to the opinion expressed in Exparte Burnett, that the ordinance prescribing a thousand dollars as the price of a license to retail was invalid. But in this case we infer from the bill of exceptions, that there was a preexisting ordinance, fixing the price of license at $100. It is not necessary for us to decide in this case, whether the plaintiff was liable to a fine, because he neither obtained nor applied for license under the old ordinance; because, if he was so liable, the council nevertheless proceeded without authority, there being no valid judgment for the fine, and are liable for the. damage sustained by the plaintiff.
The result of our opinion is, as we conceive, that the defendants cannot successfully defend' the suit. The counsel, in their brief, request that we will not reverse upon any point not reaching the merits ; and thus, as we understand, waive their assignments of error, upon the condition that the merits of the case are decided against them. We, therefore, forbear to pass upon any of the other questions raised.
The judgment of the court below is affirmed.