Sumner v. Beeler

50 Ind. 341

Opinion

Pettit, C. J.

This suit was. brought by the appellee against the appellants, to recover damages for an illegal arrest, imprisonment, prosecution, and causing him to be fined on the charge of being found drunk, under the ninth section of the Baxter bill of 1873.

The defendants answered jointly and separately, by the general denial and by a third paragraph in justification under the ninth section of said law.

A demurrer for want of sufficient facts was sustained to this paragraph, and this ruling is assigned for error.

This section has been held to be unconstitutional, or, in other words, that it is not law. The State v. Young, 47 Ind., 150. No question in law is better settled, and this is admitted by the counsel for the appellants in their brief; than that ministerial officers and other persons are liable for acts done under an act of the legislature which is unconstitutional and void. All persons are presumed to know the law, and if they act under an unconstitutional enactment of the legislature, they do so at their peril, and must take the consequences.

■ There was no error in sustaining the demurrer to this paragraph of the answer.

It is also assigned for error that the complaint is not sufficient to constitute a cause of action; but this question is not pressed or relied upon, nor is there any ground for it. The complaint is clearly sufficient.

The judgment is affirmed, at the costs of the appellants.