Lyon, J.
A discussion of all the alleged errors assigned will not be attempted, for the reason that we find material error in the charge of the learned circuit judge to the jury, which must necessarily work a reversal of the judgment.
It was not claimed by any one on the argument of this appeal, that the language addressed by the plaintiff to the defendant Hanneman was a violation of the ordinance under which the plaintiff was prosecuted. • It was virtually conceded by the learned counsel for the defendants, that it was not, and the jury were so instructed. The ordinance was intended to prevent lewd and lascivious language and conduct, and the words “ wanton or obscene ” are used therein in that sense. It does not extend to opprobrious and insulting language, which, although tending to a breach of the peace, is not lewd or lascivious.
The jury were instructed that, although the prosecutor and the magistrate were mistaken in thinking the plaintiff had violated that particular ordinance, still, if he had actually vio[276] lated any kindred ordinance of the city, the defendants may show, in defense of this action, the real substantial cause the ;prosecutor had m mind, to defeat the claim that the prosecution was without probable cause. And further, that the defendants, having knowledge of all the facts, are not responsible for the mistake of the magistrate.
The infirmity in the instructions is, that they ignored entirely the complaint actually made to the police justice, and held that the existence of probable cause for the prosecution was established by proof of certain acts of the plaintiff on the occasion in question, concerning which no complaint was made.
The only proof of the complaint actually made against the plaintiff is contained in the testimony of the defendant Han-neman; and he testified positively that he only stated to the justice the language which the plaintiff had addressed to him. lie did not complain that the plaintiff had done any other act which violated any city ordinance.
Had the prosecutor complained truly to the justice that the plaintiff had violated any ordinance — as that he disobeyed, or incited the peddler to disobey, the lawful commands of the marshal, or made a riot or disturbance in the streets, or aided in gathering a crowd which obstructed the streets unlawfully, we might have a very different question to determine. But no such complaint was made. The complaint was for using opprobrious language to the prosecutor, which the magistrate erroneously believed was wanton or obscene within the meaning of the ordinance, and for that alone. We think no case has been cited which holds that, in an action for malicious prosecution, probable cause therefor is established by proof that, although the act complained of was not an' offense, the accused had committed an offense not complained of.
The case we have here is this: The prosecutor complained to the police justice that the plaintiff had addressed insulting language to him — stating the language truly, — and desired to prosecute him if the language was a violation of any city [277] ordinance. It was not in fact a violation of any ordinance, but the justice advised the prosecutor that it was a violation of the ordinance imposing a penalty for the use of wanton or obscene language. The justice drew up the complaint charging the plaintiff, in terms, with having violated that ordinance, and the prosecutor swore to the complaint. The justice thereupon issued his warrant for the apprehension of the plaintiff, who was arrested and brought before him, and was afterwards tried for the offense charged, and acquitted.
Prima faoie there was an entire want of probable cause for the prosecution; but, to supply that want, the defendants, when sued for malicious prosecution, were permitted to show that, on the occasion of the speaking of the words, the plaintiff violated some ordinances of the city for the violation of which no complaint was made to the magistrate. And the jury were instructed, substantially, that such proof supplied the element of probable cause, and was fatal to the action.
Numerous cases, both English and American, were cited on the argument to support the proposition, that if a prosecutor fully and truly states the facts of which he complains, to his counsel or to a magistrate, and such counsel or magistrate advises him that the facts show that some particular crime has been committed by any person, he may safely rely on the advice, and prosecute such person for the crime. If it turns out that the counsel or magistrate mistook the law — if the facts stated do not constitute the crime charged, or any crime,— the prosecutor will be protected in an action brought against him for malicious prosecution. Stated in another form, the proposition is, that a full and honest statement of the facts by the prosecutor to his counsel or the magistrate, and the mistake of the counsel or magistrate as to the legal inference to be drawn from the facts, stand for probable cause, the existence of which is fatal to an action for a malicious prosecution. These cases are cited in the briefs of the learned counsel for the defendants, and it is unnecessary to repeat the citations. To these, [278] however, should be added Bennett v. Black, 1 Stew. (Ala.), 494; Wills v. Noyes, 12 Pick, 324; Dennis v. Ryan, 65 N. Y., 385; Smith v. Zent, 59 Ind., 362; McCarthy v. Kitchen, id., 500.
The rule seems to be settled, that, under the circumstances above stated, the advice of counsel learned in the law is a protection to the prosecutor. But whether the same rule applies if the erroneous advice is given by a person not learned in the law, is a question upon which there is a conflict of authority. It seems to us that the question should be resolved in the negative. A prosecutor who procures the arrest of a citizen on a charge of crime which has not been committed, should not be allowed to shield himself from responsibility for his act on the plea that some person who is not presumed to be any more familiar with the law than he is, erroneously advised him that a given state of facts showed the accused guilty of the crime charged. In a doubtful case, the prosecutor should not rely upon such an adviser, but should obtain the advice of the proper law officer (in this case the city attorney), or of some counsel duly admitted to practice in the courts as one learned in the law. There is no evidence that the police justice belongs to this class.
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Lyon, J.
A discussion of all the alleged errors assigned will not be attempted, for the reason that we find material error in the charge of the learned circuit judge to the jury, which must necessarily work a reversal of the judgment.
It was not claimed by any one on the argument of this appeal, that the language addressed by the plaintiff to the defendant Hanneman was a violation of the ordinance under which the plaintiff was prosecuted. • It was virtually conceded by the learned counsel for the defendants, that it was not, and the jury were so instructed. The ordinance was intended to prevent lewd and lascivious language and conduct, and the words “ wanton or obscene ” are used therein in that sense. It does not extend to opprobrious and insulting language, which, although tending to a breach of the peace, is not lewd or lascivious.
The jury were instructed that, although the prosecutor and the magistrate were mistaken in thinking the plaintiff had violated that particular ordinance, still, if he had actually vio[276] lated any kindred ordinance of the city, the defendants may show, in defense of this action, the real substantial cause the ;prosecutor had m mind, to defeat the claim that the prosecution was without probable cause. And further, that the defendants, having knowledge of all the facts, are not responsible for the mistake of the magistrate.
The infirmity in the instructions is, that they ignored entirely the complaint actually made to the police justice, and held that the existence of probable cause for the prosecution was established by proof of certain acts of the plaintiff on the occasion in question, concerning which no complaint was made.
The only proof of the complaint actually made against the plaintiff is contained in the testimony of the defendant Han-neman; and he testified positively that he only stated to the justice the language which the plaintiff had addressed to him. lie did not complain that the plaintiff had done any other act which violated any city ordinance.
Had the prosecutor complained truly to the justice that the plaintiff had violated any ordinance — as that he disobeyed, or incited the peddler to disobey, the lawful commands of the marshal, or made a riot or disturbance in the streets, or aided in gathering a crowd which obstructed the streets unlawfully, we might have a very different question to determine. But no such complaint was made. The complaint was for using opprobrious language to the prosecutor, which the magistrate erroneously believed was wanton or obscene within the meaning of the ordinance, and for that alone. We think no case has been cited which holds that, in an action for malicious prosecution, probable cause therefor is established by proof that, although the act complained of was not an' offense, the accused had committed an offense not complained of.
The case we have here is this: The prosecutor complained to the police justice that the plaintiff had addressed insulting language to him — stating the language truly, — and desired to prosecute him if the language was a violation of any city [277] ordinance. It was not in fact a violation of any ordinance, but the justice advised the prosecutor that it was a violation of the ordinance imposing a penalty for the use of wanton or obscene language. The justice drew up the complaint charging the plaintiff, in terms, with having violated that ordinance, and the prosecutor swore to the complaint. The justice thereupon issued his warrant for the apprehension of the plaintiff, who was arrested and brought before him, and was afterwards tried for the offense charged, and acquitted.
Prima faoie there was an entire want of probable cause for the prosecution; but, to supply that want, the defendants, when sued for malicious prosecution, were permitted to show that, on the occasion of the speaking of the words, the plaintiff violated some ordinances of the city for the violation of which no complaint was made to the magistrate. And the jury were instructed, substantially, that such proof supplied the element of probable cause, and was fatal to the action.
Numerous cases, both English and American, were cited on the argument to support the proposition, that if a prosecutor fully and truly states the facts of which he complains, to his counsel or to a magistrate, and such counsel or magistrate advises him that the facts show that some particular crime has been committed by any person, he may safely rely on the advice, and prosecute such person for the crime. If it turns out that the counsel or magistrate mistook the law — if the facts stated do not constitute the crime charged, or any crime,— the prosecutor will be protected in an action brought against him for malicious prosecution. Stated in another form, the proposition is, that a full and honest statement of the facts by the prosecutor to his counsel or the magistrate, and the mistake of the counsel or magistrate as to the legal inference to be drawn from the facts, stand for probable cause, the existence of which is fatal to an action for a malicious prosecution. These cases are cited in the briefs of the learned counsel for the defendants, and it is unnecessary to repeat the citations. To these, [278] however, should be added Bennett v. Black, 1 Stew. (Ala.), 494; Wills v. Noyes, 12 Pick, 324; Dennis v. Ryan, 65 N. Y., 385; Smith v. Zent, 59 Ind., 362; McCarthy v. Kitchen, id., 500.
The rule seems to be settled, that, under the circumstances above stated, the advice of counsel learned in the law is a protection to the prosecutor. But whether the same rule applies if the erroneous advice is given by a person not learned in the law, is a question upon which there is a conflict of authority. It seems to us that the question should be resolved in the negative. A prosecutor who procures the arrest of a citizen on a charge of crime which has not been committed, should not be allowed to shield himself from responsibility for his act on the plea that some person who is not presumed to be any more familiar with the law than he is, erroneously advised him that a given state of facts showed the accused guilty of the crime charged. In a doubtful case, the prosecutor should not rely upon such an adviser, but should obtain the advice of the proper law officer (in this case the city attorney), or of some counsel duly admitted to practice in the courts as one learned in the law. There is no evidence that the police justice belongs to this class.
The rule which we adopt is so clearly stated by Judge Cooley, in his late treatise on the law of torts, that we cannot do better than to quote his language. He says: “It may perhaps turn out thaf the complainant, instead of relying upon his own judgment, has taken the advice of counsel learned in the law, and acted upon that. This should be safer and more reliable than his own judgment, not only because it is the advice of one who can view the facts calmly and dispassionately, but because he is capable of judging of the facts in their legal bearings. A prudent man is therefore expected to take such advice; and when he does so, and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case -of probable cause, provided the disclosure appears to [279] have been full and fair, and not to have withheld any of the material facts. But the advice must be that of a person accepted and licensed by the courts as one learned in the law and competent to be adviser to clients and the court; and if one chooses to accept and rely upon the opinion and advice of a justice of the peace or other layman, he may do so in aid of his own judgment, but it cannot afford him any protection.” p. 183. The learned author cites the following cases, all of which, it is believed, sustain the doctrine of the text. Olmstead v. Partridge, 16 Gray, 381; Beal v. Robeson, 8 Iredell, 276; Straus v. Young, 36 Md., 246; Burgett v. Burgett, 43 Ind., 78; Stanton v. Hart, 27 Mich., 539; Murphy v. Larson, 77 Ill., 172.
The instructions which the judge gave the jury directly conflict with the above rule, and must, therefore, be regarded as erroneous.
II. It is claimed on behalf of the defendants, that the prosecution of the plaintiff for violating the ordinance is not ended, and hence that this action for a malicious prosecution cannot be maintained. This position is founded on the assumption that the police justice had no power to render judgment for or against the plaintiff until he had been acquitted or convicted by the verdict of a jury. On the authority of The State v. Lockwood, 43 Wis., 403, this might perhaps be a correct position, if the proceeding against the plaintiff for violating the ordinance is a criminal prosecution. But we think it is not. No law in force when that prosecution was instituted, made it a criminal offense to use wanton or obscene language within the corporate limits of the city of Columbus. The use of such language there gave the city a right of action against the offender to recover a prescribed penalty therefor. Under the charter of the city (Laws of 1874, ch. 57), an action to recover such a penalty may be commenced either by summons or warrant. But whether commenced by the one process or the other, the pleadings and judgment are the same. In either [280] case it is nothing more than a civil action to recover a penalty. Hence, it was competent for the magistrate, as in other civil actions, to act upon the stipulation of the parties, and to determine the action and render final judgment therein.
It may be here observed, that the late revision of the statutes contains the following salutary provision: “Any person .... who shall use in reference to and in the presence of another, or in reference to or in the presence of any member of his family, abusive or obscene language, intended or naturally tending to provoke an assault or any breach of the peace, shall be punished by imprisonment in the county jail not more than three months, or by fine not exceeding one hundred dollars.” R. S., 1041, sec. 4398.
III. We fail to find, in the bill of exceptions, any evidence tending to show that the defendant McConnell in any manner advised or instigated the prosecution of the plaintiff; and no good reason is perceived why the judgment should be disturbed as to him. But there appears to be some evidence tending* to show that the defendant Fox instigated the prosecution. The statute (R. S., 800, see. 30 Tl) authorizes us to reverse or affirm the judgment as to all or any of the parties; and this necessaiily includes the power to revei’se as to one party and affirm as to another. Cairns v. O’Bleness, 40 Wis., 469.
The judgment of the circuit court must be affirmed as to the defendant McGonnell; and as to the other defendants it must be reversed, and the cause remanded for a new trial.
RvArr, C. J.
It is not easy to understand whether the English rule, that mistake in law of the magistrate excuses a complainant, goes to probable cause or to malice, or to both. But, however the rule may be interpreted, there are reasons why it should not be held here; reasons which appear to make it quite inapplicable.
Justices of the peace in England are very generally chosen [281] from large landed proprietors, generally graduates of one of the universities. There, in addition to general culture of high order, they have some instruction in the law. Blackstone’s Commentaries were lectures delivered at Oxford to the students of that university; therefore called by Horne Tooke, “ a good gentleman’s law-book.” And the clerks of the peace and justices’ clerks are very generally attorneys. They are sometimes what are called stipendiary magistrates, who are understood to he very generally barristers.
Justices of the peace here are very generally laymen, rarely men of liberal education or of any knowledge of the law. They are perhaps not often more competent to form a judgment than those who bring complaints before them. For, while justices of the peace have generally higher fitness for the office in England than here, suitors before them here are very generally persons of better education and greater intelligence than there.
Though the office of justice of the peace is such here, as Coke said it was in England, “ for the tranquility and quiet of the realm, as no part of the Christian world hath the like, if the same be duly executed,” yet it is sounder in principle and safer in practice to hold here that mistake in law of a lay justice of the peace is not justification in actions for malicious prosecution.
By the Court. — Judgment affirmed as to the defendant McConnell/ and as to the other defendants, judgment reversed, and cause remanded for a new trial.