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Docket Number

No. 7247.

Advocates

E.G. Elliott, of Boise, for appellant. A city ordinance in conflict with the state law is unconstitutional and void. Article 12, Section 2, Idaho Constitution; In re Ridenbaugh, 5 Idaho 371, 49 P. 12; Mix v. Board of County Commissioners, 18 Idaho 695, 112 P. 215, 32 L.R.A., N.S., 534; In re Snyder, 10 Idaho 682, 79 P. 819, 68 L.R.A. 708; State v. Frederic, 28 Idaho 709, 155 P. 977; State v. Bird, 29 Idaho 47, 156 P. 1140. An unconstitutional and void act, or ordinance, is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. Dumas v. Bryan, 35 Idaho 557, 562, 207 P. 720; State v. Malcom, 39 Idaho 185, 226 P. 1083; Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178. The fact that the plaintiff was discharged and the cause against her dismissed by the Police Magistrate on motion of the City Attorney established a want of probable cause and proved and established a prima facie case for her on malicious prosecution. Nettleton v. Cook, 30 Idaho 82, 87, 163 P. 300, L.R.A. 1917D, 1194; Peasley v. Puget Sound Tug Barge Co., 13 Wn.2d 485, 125 P.2d 681, 688; Martin v. Corscadden, 34 Mont. 308, 86 P. 33; Noblett v. Bartsch, 31 Wn. 24, 71 P. 551, 96 Am. St.Rep. 886. It is error, in an action for malicious prosecution, to permit defendant to testify as to his personal feeling of no malice towards plaintiff. Such testimony is a conclusion of law and inadmissible. Ross v. Kerr, 30 Idaho 492, 167 P. 654; Nichols Applied Evidence, Vol. 3, page 2963. While the rule is well settled that the plaintiff has the burden of establishing want of probable cause, slight proof thereof is all the law requires to make a prima facie case. Douglas v. Kenney, 40 Idaho 412, 233 P. 874; Brown v. Selfridge, 224 U.S. 189, 32 S.Ct. 444, 56 L.Ed. 727, 729. Maurice H. Greene, Fred M. Taylor, and C. Stanley Skiles, all of Boise, for respondents. The defendant in a malicious prosecution case may testify as to his motive in causing the plaintiff's arrest. Ross v. Kerr, 30 Idaho 492, 167 P. 654; Schubkegel v. Gordino, 56 Cal.App.2d 667, 133 P.2d 475; Richter v. Neilson, 11 Cal.App.2d 503, 54 P.2d 54. If the criminal complaint is dismissed voluntarily, the fact of dismissal does not raise a presumption of a lack of probable cause in making the arrest. Fowler v. Ruebelmann, 65 Idaho 231, 142 P.2d 594. As a defense to the action for malicious prosecution, defendants did not have to prove Mrs. Clark guilty of the offense charged but only that they had probable cause. Luther v. First State Bank, 64 Idaho 416, 133 P.2d 717; Moore v. Durrer, 127 Cal.App. 759, 16 P.2d 676. Statements made to the officers by third persons are admissible on the issue of probable cause. Carpenter v. Sibley, 15 Cal.App. 589, 119 P. 391; Selvester v. Kennedy, 137 Cal.App. 250, 30 P.2d 63; 18 R.C.L. 36, Sec. 21; 38 C.J. 405. The provisions of the Special Charter of Boise City were continued in force under the constitution of the State of Idaho. Article XXI, Section 2, Idaho Constitution; Hoffer v. City of Lewiston, 59 Idaho 538, 85 P.2d 238; Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234. The Mayor and Council of Boise City have been granted the full power to define what shall constitute vagrancy and the punishment therefor. As to definition: Article XIII, Section 2, Idaho Constitution, Section 11 of an act to incorporate Boise City, approved January 11, 1866, and as amended by H.B. 64, 1901 Sess.Laws; Section 4-1501, Boise City Code of 1936. As to punishment: Sec. 21, Act of January 11, 1866, H.B. 64, 1901 Sess.Laws; Chapter 215, 1939 Sess.Laws. An arrest without a warrant for a misdemeanor committed in the arresting officer's presence is lawful. I.C.A. § 19-603.

Judges

BUDGE, Justice. AILSHIE, C.J., (dissenting).

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Smart Summary

Summary of Opinion — No. 7247 (June 14, 1946)

Factual and Procedural Background

Plaintiff-appellant Alice E. Clark sued respondents (including Ethel G. Alloway and other Boise City police officers) in the District Court, Third Judicial District, Ada County, alleging two causes of action: (1) maliciously and unlawfully procuring her arrest on September 3, 1944, for vagrancy (seeking $15,000 actual and $5,000 punitive damages), and (2) falsely imprisoning her after that arrest (seeking like damages). Respondents admitted they were police officers, that Alloway and Sherman arrested Clark for violation of sec. 4-1501, Boise City Code, 1936 (begging as a business), that a criminal complaint was filed by the Boise City Chief of Police, and that Clark was held in custody on that charge which was later dismissed by the police judge on motion of the city attorney.

The action was tried to a jury (after motion dismissing the complaint as to defendant Gunderson was granted). The jury returned a general verdict for the defendants on both causes of action. Judgment was entered for defendants and the plaintiff appealed. The majority opinion affirms the judgment; a dissenting opinion (Chief Justice Ailshie) disagrees as to the ordinance's validity and notes a discrepancy in Exhibit "G".

Legal Issues Presented

Whether appellant established the elements of malicious prosecution — specifically termination in her favor, malice, and want of probable cause — sufficient to warrant recovery.
Whether there was false imprisonment (i.e., whether appellant's arrest and detention were without adequate legal justification or probable cause).
Whether the Boise City Ordinance No. 1354 (defining vagrancy and prescribing punishment) was a valid municipal enactment and could be received in evidence despite differences from the state statute.
Whether certain evidentiary rulings and jury-instruction rulings at trial constituted reversible error (including admission of defendants' testimony on malice, admission of third-party statements bearing on probable cause, propriety of questions to jurors about insurance, and admission of witness testimony for impeachment and probable-cause purposes).
Whether an arrest without warrant for a misdemeanor committed in the arresting officer's presence was lawful under I.C.A. § 19-603 despite restrictions on nighttime arrests for misdemeanors in sec. 19-607, I.C.A.

Arguments of the Parties

Appellant's Arguments

Appellant contended she was an evangelist, pastor and missionary for religious and charitable organizations, soliciting funds for such organizations rather than engaging in begging as a business.
She argued her arrest and imprisonment on the charge of begging as a business were malicious and without probable cause.
She challenged the admission of the ordinance (Exhibit "G") on grounds it conflicted with state law and was therefore void and inadmissible.
She asserted trial errors including improper evidentiary rulings and errors in instructions, and objected to respondents testifying about absence of malice.

Respondents' Arguments

Respondents maintained the evidence established appellant was not engaged in genuine religious or charitable solicitation but was begging as a business in violation of sec. 4-1501, Boise City Code.
They argued probable cause existed for the arrest at the time she was taken into custody, there was absence of malice, and no wrongful detention occurred.
They defended admission of the municipal ordinance as within the city's charter authority to define vagrancy and fix punishment, and contended differences from the state statute did not render the ordinance invalid.
They justified evidentiary rulings: defendants could testify as to lack of malice; third-party statements to officers were admissible on probable cause; impeachment testimony and exhibits were properly admitted; and questioned assignments of error were not prejudicial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Ridenbaugh, 5 Idaho 371, 49 P. 12	Cited in argument that a city ordinance in conflict with state law is unconstitutional and void (supporting Article 12, Section 2, Idaho Constitution).	Referenced among authorities presented by appellant's counsel; court considered municipal authority and did not adopt appellant's view that ordinance was void.
Mix v. Board of County Commissioners, 18 Idaho 695, 112 P. 215, 32 L.R.A., N.S., 534	Cited in support of the proposition regarding conflict between local ordinance and state law.	Included in authorities discussed by appellant; court addressed constitutionality of ordinance and concluded municipal charter authorized ordinance.
In re Snyder, 10 Idaho 682, 79 P. 819, 68 L.R.A. 708	Cited in the same context regarding local ordinances versus state law.	Placed among cited authorities; court ultimately upheld ordinance under Boise's special charter authority.
State v. Frederic, 28 Idaho 709, 155 P. 977	Cited in discussion of local ordinance validity versus state law.	Cited by counsel; court treated municipal authority under charter as sufficient to sustain the ordinance.
State v. Bird, 29 Idaho 47, 156 P. 1140	Cited regarding conflict between local ordinance and state law.	Referenced among authorities; court concluded Boise's charter authorized definition and punishment of vagrancy.
Dumas v. Bryan, 35 Idaho 557, 562, 207 P. 720	Expresses the rule that an unconstitutional and void act or ordinance is not a law and confers no rights.	Cited by appellant's counsel; court considered the contention but sustained the ordinance as valid under the charter.
State v. Malcom, 39 Idaho 185, 226 P. 1083	Cited along with Dumas for principle about void ordinance being no law.	Referenced by counsel; court did not accept appellant's assertion that the ordinance was void for conflict with state law.
Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178	United States Supreme Court authority cited for the principle that an unconstitutional act is inoperative.	Cited by appellant's counsel; court considered municipal powers and concluded ordinance was valid under the local charter.
Nettleton v. Cook, 30 Idaho 82, 87, 163 P. 300, L.R.A. 1917D, 1194	States that discharge and dismissal by magistrate on motion of city attorney establishes want of probable cause and makes a prima facie case for malicious prosecution (as argued by appellant's counsel).	Cited by appellant's counsel; court noted dismissal was voluntary and relied on authority that such dismissals do not necessarily establish want of probable cause.
Peasley v. Puget Sound Tug Barge Co., 13 Wn.2d 485, 125 P.2d 681, 688	Cited in support of the proposition that dismissal by magistrate establishes lack of probable cause (as presented by appellant's counsel).	Included among authorities cited by appellant; court applied rule that voluntary dismissal does not raise presumption of lack of probable cause.
Martin v. Corscadden, 34 Mont. 308, 86 P. 33	Cited in relation to dismissal establishing lack of probable cause.	Referenced by counsel; court relied on authority that dismissal by prosecutor does not necessarily create presumption of lack of probable cause.
Noblett v. Bartsch, 31 Wn. 24, 71 P. 551, 96 Am. St.Rep. 886	Cited regarding dismissal by magistrate and probable cause.	Included in appellant's authorities; court treated the police-court dismissal as a voluntary dismissal that does not prove want of probable cause.
Ross v. Kerr, 30 Idaho 492, 167 P. 654	Cited for the proposition that it is error to permit defendant to testify as to personal feeling of no malice (appellant's counsel) and elsewhere for the contrary proposition allowing prosecutor's testimony as to motive.	The court resolved the issue by holding a person who caused a prosecution is entitled to testify as to whether he was influenced by malice and cited authorities supporting that rule.
Douglas v. Kenney, 40 Idaho 412, 233 P. 874	Cited for the rule that although plaintiff has burden to show want of probable cause, slight proof suffices to make a prima facie case.	Cited in summary of law on burden of proof for lack of probable cause; court applied general principles regarding burden and sufficiency of evidence.
Brown v. Selfridge, 224 U.S. 189, 32 S.Ct. 444, 56 L.Ed. 727, 729	Cited regarding the quantum of proof needed to make out prima facie case of want of probable cause.	Referenced by appellant's counsel; court reviewed burden-of-proof principles and found evidence sufficient to support verdict for defendants.
Schubkegel v. Gordino, 56 Cal.App.2d 667, 133 P.2d 475	Cited by respondents for the proposition that defendant may testify as to motive in causing arrest.	Used to support admission of defendants' testimony about absence of malice; court allowed such testimony.
Richter v. Neilson, 11 Cal.App.2d 503, 54 P.2d 54	Cited by respondents for same proposition regarding testimony about motive.	Supporting authority for court's ruling allowing defendants to testify on motive and absence of malice.
Fowler v. Ruebelmann, 65 Idaho 231, 142 P.2d 594	Cited for the rule that voluntary dismissal of criminal complaint does not raise presumption of lack of probable cause.	The court relied on this authority in holding the police-court dismissal did not establish lack of probable cause.
Luther v. First State Bank, 64 Idaho 416, 133 P.2d 717	Cited for the proposition defendants need only prove probable cause (not guilt) and to define probable cause (quoting Luther for definition).	Used in describing elements of malicious prosecution and the definition of probable cause applicable to the case.
Moore v. Durrer, 127 Cal.App. 759, 16 P.2d 676	Cited for the rule that as a defense to malicious prosecution, showing probable cause suffices.	Relied on by respondents and considered by the court in evaluating sufficiency of defense evidence.
Carpenter v. Sibley, 15 Cal.App. 589, 119 P. 391	Cited to support admissibility of statements made to officers by third persons on issue of probable cause.	Court admitted testimony of third-party complaints (Hickman) as bearing on probable cause, citing Carpenter as authority.
Selvester v. Kennedy, 137 Cal.App. 250, 30 P.2d 63	Cited for same rule on admissibility of third-party statements to officers bearing on probable cause.	Applied in admitting third-party statements relevant to probable cause.
Hoffer v. City of Lewiston, 59 Idaho 538, 85 P.2d 238	Cited to show provisions of Special Charter of Boise City were continued in force under the state constitution.	Court relied on charter-history authorities to conclude Boise's charter conferred power to define vagrancy and fix punishment.
Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234	Cited regarding continued force of special charter provisions.	Included among authorities supporting municipal power under charter; court used that historical basis to uphold ordinance.
State v. Hart, 66 Idaho 217, 157 P.2d 72	Cited for the proposition that an arrest without a warrant for a misdemeanor committed in the arresting officer's presence is lawful.	Court applied sec. 19-603 and State v. Hart to hold appellant's arrest lawful because offense was found to have been committed in officer's presence.
Ross v. Hixon, 46 Kan. 550, 26 P. 955, 12 L.R.A. 760, 26 Am. St.Rep. 123	Cited for the proposition that a plaintiff must allege and prove all facts necessary for malicious-prosecution action and that jury decides conflicts as to probable cause.	Cited in the court's explanation of plaintiff's burden and in holding the jury resolves conflicting evidence as to probable cause.
Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223, 10 Am.St.Rep. 322	Cited for a near-accurate definition of probable cause as belief based on sufficient circumstances to reasonably induce such belief.	Used in the court's discussion and definition of probable cause applied to the facts.
Frost Co. v. Coeur d'Alene Mines Corporation, 63 Idaho 20, 115 P.2d 928	Cited for the rule that where evidence is conflicting and there is substantial evidence to support the verdict, appellate court will not disturb it.	Applied in upholding the jury verdict on conflicting evidence supporting probable cause and absence of malice.
Territory v. Evans, 2 Idaho 425, 17 P. 139	Cited for the principle that the entire charge should be considered together and appellate court will not disturb verdict if charge fairly presents the law.	Invoked in reviewing the sufficiency and fairness of the instructions as a whole and declining to disturb the judgment.
State v. Schieler, 4 Idaho 120, 37 P. 272	Cited along with Territory v. Evans on the standard for reviewing jury instructions.	Used to support court's conclusion instructions as a whole fairly presented the law.
People v. Chun Heong, 86 Cal. 329, 24 P. 1021	Cited on the same principle of reviewing instructions as a whole.	Included among authorities supporting appellate deference to comprehensive instructions.
People v. Etting, 99 Cal. 577, 34 P. 237	Cited for the same instructional-review proposition.	Used in concluding no prejudicial error in instructions given or refused.
Malcolm v. Hanmer, 64 Idaho 66, 127 P.2d 331	Cited for the procedural rule that assignments of error not discussed or briefed will not be considered.	Applied in refusing to consider appellant's assignment regarding juror questions about insurance where appellant did not brief the point.
Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585	Cited to show that permitting or refusing questions about insurance is within trial court's discretion.	Referenced in upholding trial court's discretion and declining reversal on that basis.
Beasley v. Bond, 173 OkL. 355, 48 P.2d 299	Cited similarly for discretionary control over juror examination on insurance matters.	Used to support court's denial of reversal for refusal to permit those juror questions.
Berry v. Park, 185 Okl. 118, 90 P.2d 425	Cited with other authorities on juror-question discretion.	Applied in upholding trial court's exercise of discretion on juror questioning.
Fritchman v. Chitwood Battery Co., 134 Kan. 727, 8 P.2d 368	Cited for same discretionary principle regarding juror examination.	Used by court in rejecting assignment of error not briefed.
State v. Johnston, 62 Idaho 601, 113 P.2d 809	Cited to justify admission of testimony (Hickman) for impeachment and as bearing on probable cause.	Court relied on Johnston to support admissibility and non-prejudicial nature of the testimony.
State v. Reding, 52 Idaho 260, 13 P.2d 253	Cited in support of admissibility rulings and non-prejudicial error analysis.	Applied in upholding admission of evidence similar in import to that introduced for probable-cause determination.
34 Am.Jur. p. 742, § 62	Secondary authority stating that abandonment, dismissal by prosecuting attorney, or dismissal without hearing will not constitute evidence of want of probable cause.	Quoted and applied to hold the police-court dismissal was not evidence of lack of probable cause.
City of Seattle v. Chin Let, 19 Wn. 38, 52 P. 324	Cited for the proposition that a city has authority to pass ordinances defining offenses within its limits and need not be restricted to the exact words of state law.	Used as persuasive authority in concluding Boise City ordinance could validly define vagrancy and prescribe punishment under charter authority.
State v. Preston, 4 Idaho 215, 38 P. 694	Cited for the proposition that municipal corporations may pass ordinances punishing acts punishable under the Penal Code when authorized by their organizing law.	Relied upon to support the conclusion Boise City had authority under its charter to enact Ordinance No. 1354.
Mann v. Scott, 180 Cal. 550, 182 P. 281	Cited to show that municipalities may enact additional local regulations in aid of general state law when appropriate to local needs.	Used as supporting authority for upholding broader municipal ordinance differing in scope and penalty from state statute.
State v. Quong, 8 Idaho 191, 67 P. 491	Cited among authorities supporting municipal regulatory power in the area of public conduct.	Referenced in the discussion upholding the city's ordinance authority under its charter.
Ex parte Hoffman, 155 Cal. 114, 99 P. 517, 132 Am. St.Rep. 75	Cited as an authority recognizing municipal power to regulate and punish certain conduct within city limits.	Invoked as persuasive authority in support of municipal ordinance validity.
Society Theater v. City of Seattle, 118 Wn. 258, 203 P. 21	Cited among authorities allowing municipal regulation in aid of general law.	Considered persuasive in sustaining municipal ordinance authority.
Portnoy v. Superior Court Etc., Cal. App., 116 P.2d 804	Cited as authority recognizing municipal power to enact local regulations complementing state law.	Referenced in analogous discussion of municipal authority.
Natural Milk P. Ass'n v. City and County of San Francisco, 20 Cal.2d 101, 124 P.2d 25	Cited in support of municipal authority to enact local regulations related to state law.	Used as further persuasive authority in upholding the ordinance.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following steps, based strictly on the text of the opinion:

Elements of Malicious Prosecution: The court reiterated the well-established elements a plaintiff must plead and prove in a malicious prosecution action: (1) that there was a prosecution, (2) that it terminated in favor of the plaintiff, (3) that the defendants were the prosecutors, (4) that defendants acted from malice, (5) that there was a want of probable cause, and (6) the amount of damages. The court cited Russell v. Chamberlain and Luther v. First Bank of Troy for these propositions.
Burden of Proof and Probable Cause: The court emphasized that the plaintiff bears the burden of proof on each element. It discussed definitions of probable cause, quoting authorities that probable cause is a belief based on sufficient circumstances to reasonably induce belief in a person of ordinary prudence and quoted Luther for an applicable definition. The court noted that where evidence on probable cause is conflicting, the jury determines credibility.
Evaluation of the Evidence: The trial record was voluminous and contained direct conflicts on every material issue. The jury returned a general verdict finding probable cause and absence of malice. The court found the evidence, though contradictory, sufficient to support the verdict and declined to disturb it under the principle that substantial conflicting evidence supporting a verdict will not be disturbed on appeal (citing Frost Co. v. Coeur d'Alene Mines Corporation).
Admissibility of Defendants' Testimony on Motive: Addressing assignments that defendants should have been barred from testifying they harbored no malice, the court held a person who caused a prosecution is entitled to testify as to whether he was influenced by malice in instituting the prosecution and cited multiple authorities supporting that rule.
Lawfulness of Arrest: Appellant argued the arrest was unlawful under sec. 19-607, I.C.A., because it was a misdemeanor. The court cited sec. 19-603, I.C.A., which permits a peace officer to arrest without warrant for an offense committed in his presence, and concluded the jury's finding that the offense was committed in the officer's presence made the arrest lawful (citing State v. Hart).
Evidentiary Rulings: On various evidentiary assignments, the court upheld rulings: (a) third-party statements (Hickman) were admissible as bearing on probable cause; (b) striking of certain testimony about police-court happenings was proper where hearsay or otherwise inadmissible; (c) impeachment testimony was admissible and not prejudicial; and (d) a voluntary dismissal of the criminal complaint in police court did not in itself raise a presumption of want of probable cause (citing 34 Am.Jur. § 62 and Fowler v. Ruebelmann).
Validity and Admission of Municipal Ordinance (Exhibit "G"): Appellant argued the ordinance conflicted with state statute (noting differences in wording and penalty) and was therefore void. The court examined Boise City's special charter authority (Art. 21, § 2 of the Idaho Constitution and the charter provisions) and historical statutory and ordinance enactments. The court concluded the Mayor and Council were granted authority to define vagrancy and provide for punishment, cited Idaho and out-of-state authorities (including City of Seattle v. Chin Let and State v. Preston), and held that a municipal ordinance somewhat broader in scope and with a different penalty is not necessarily unconstitutional where the charter confers such power. The court therefore permitted admission of Ordinance No. 1354 and sustained its validity under Boise's special charter.
Instructions and Overall Fairness: The court reviewed the instructions given, offered, and refused, concluding that viewed as a whole they fairly and correctly presented the law, and found no prejudicial error in the charge to the jury.
Disposition: Finding no prejudicial error and concluding the evidence supported the jury verdict that there was probable cause and absence of malice, the majority affirmed the judgment and awarded costs to respondents.

Holding and Implications

Holding:

Judgment affirmed. The appellate court affirmed the district court judgment in favor of respondents on both causes of action (malicious prosecution and false imprisonment). Costs were awarded to respondents.

Implications:

The jury's finding of probable cause and absence of malice was sustained because there was substantial, though conflicting, evidence to support it; therefore the appellate court declined to disturb the verdict.
The court upheld the admission and validity of Boise City Ordinance No. 1354 under the city's special charter authority, concluding that municipal power to define and punish vagrancy existed notwithstanding differences between the ordinance and the state statute.
The court affirmed trial-court evidentiary rulings: defendants may testify regarding absence of malice; third-party statements to officers are admissible on probable-cause issues; a voluntary dismissal of a criminal complaint does not necessarily establish lack of probable cause; and disputed evidentiary and instructional rulings did not constitute reversible error under the record presented.
No broader or novel legal principle was announced by the majority beyond applying established rules to the facts; the direct effect is the affirmation of the judgment and costs to respondents. The opinion contains a dissent (Ailshie, C.J.) expressing disagreement about the ordinance's validity and noting a discrepancy in Exhibit "G".

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CLARK v. ALLOWAY et al.

BUDGE, Justice.

Appellant's complaint, filed in the District Court for Ada County, set forth two causes of action. The first seeks damages in the sum of $15,000 actual and $5,000 punitive damages, alleged to have been sustained by reason of the acts of respondents in maliciously and unlawfully procuring her arrest, September 3, 1944, on a charge of vagrancy. The second cause of action seeks to recover damages in the same amounts from respondents for having falsely imprisoned appellant after her arrest on said charge.

Respondents, in their answer, deny all the allegations of the complaint, except they admit they are police officers; that respondents Alloway and Sherman arrested plaintiff for the violation of sec. 4-1501, Boise City Code, 1936, of begging as a business; that a criminal complaint was filed against her on that charge by the Boise City Chief of Police; that she was held in custody upon said charge, which was subsequently dismissed by the police judge on motion of the city attorney.

The cause was tried to the court and jury. At the close of all the evidence appellant moved to dismiss the complaint as against defendant Gunderson, which motion was granted. The jury returned a verdict in favor of the remaining defendants on both causes of action. Judgment was entered on the verdict, hence this appeal.

The testimony is voluminous, consisting of 434 pages. It might be here observed that there is a direct conflict upon every material issue of fact.

The primary contention of appellant upon which she bases her right of recovery is that at the time of her arrest she was, and had been for a considerable period of time, engaged as an evangelist pastor and missionary for various religious and charitable organizations; that her solicitation of funds was for these organizations; that she was not engaged in begging as a business; that her arrest and imprisonment on the charge of begging as a business was malicious and without probable cause.

On the other hand, respondents have bottomed their defense upon the ground that the evidence clearly establishes the fact that appellant was not engaged in religious or charitable work in soliciting funds as claimed by her, but was engaged in begging as a business in violation of sec. 4-1501, Boise City Code; that probable cause existed for her arrest at the time she was taken into custody, absence of malice and, as to the second cause of action, no wrongful or unlawful detention.

In limine, actions for malicious prosecution are not favored in law, hence have been hedged about by limitations more stringent than in the case of almost any other act causing damage to another. In order to recover in such an action the plaintiff must allege and prove (1) that there was a prosecution; (2) that it terminated in favor of plaintiff; (3) that the defendants were prosecutors; (4) that they were actuated by malice; (5) that there was want of probable cause; and (6) the amount of damages that plaintiff has sustained. Russell v. Chamberlain, 12 Idaho 299, 85 P. 926, 9 Ann.Cas. 1173, and cases therein cited; Luther v. First Bank of Troy, 64 Idaho 416, at page 421, 133 P.2d 717.

"As it is essential that the plaintiff in his complaint affirmatively allege all the facts necessary to support his action, it follows that he must assume the burden of proof in respect to each of these allegations, and by his evidence establish to the satisfaction of the court and jury that he has been prosecuted by the defendant, that the prosecution has terminated in his favor, that it was malicious, and without probable cause; and if by his evidence he does not make out a prima facie case upon all of these issues, he must fail." Ross v. Hixon, 46 Kan. 550, 26 P. 955, 12 L.R.A. 760, 26 Am. St.Rep. 123, Note at page 153.

"To sustain an action for malicious prosecution, there must be a concurrence of malice and want of probable cause. Neither, however clearly established, will support an action in the absence of the other." Ross v. Hixon, supra, 26 Am.St. Rep., Note, page 149.

Numerous definitions of probable cause have been given. A definition sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish. It may be nearly accurate to say that probable cause consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation. Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223, 10 Am.St.Rep. 322.

"Probable cause as is applicable to this action is (the existence of such facts or circumstances as would excite the belief of a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.)" Luther v. First Bank of Troy, 64 Idaho 416, 420, 133 P.2d 717, 719.

The rule seems to be well established that where the evidence bearing upon the question of probable cause is conflicting, it is the province of the jury to determine which of the witnesses speak the truth. Ross v. Hixon, supra, 126 Am. St. Rep., Note, page 141.

The jury by its general verdict found probable cause for the arrest of plaintiff, and absence of malice. The evidence is sufficient, though contradictory, to support the verdict.

"False imprisonment is the unlawful restraint by one person of the physical liberty of another," or more exactly, "the direct restraint by one person of the physical liberty of another without adequate legal justification" or without probable cause. (11 R.C.L. 791.) The jury found upon conflicting evidence there was probable cause for plaintiff's arrest and detention. The rule is well established in this jurisdiction that where the evidence is conflicting, and there is substantial evidence to support the verdict, it will not be disturbed on appeal. Frost Co. v. Coeur d'Alene Mines Corporation, 63 Idaho 20, at page 28, 115 P.2d 928.

We will now consider appellant's assignments of error alleged to have occurred during the trial to determine whether or not the trial judge committed reversible error.

Appellant has assigned 18 specifications of error. We will direct our attention to such of them as we consider material, but not in the order in which stated in the brief.

Assignments numbered 7 to 11, inclusive, are predicated upon the proposition that the court erred in permitting respondents to testify, over objection, as to whether or not they were influenced by malice in instituting proceedings against appellant. They all testified, in effect, that at no time did they entertain malice or ill will toward appellant or seek to injure her. The burden was on appellant to establish each and every allegation of her complaint, that is, both lack of probable cause and malice, such proof in an action of this character is indispensable. (38 C. J. § 146, p. 475.)

A person who caused a prosecution against another, and who was sued for malicious prosecution, is entitled to testify, in the action against him, as to whether or not he was influenced by malice in instituting the prosecution. Autry v. Floyd, 127 N.C. 186, 37 S.E. 208; Coleman v. Heurich, 13 D.C. 189, 2 Mackey 189; Spalding v. Lowe, 56 Mich. 366, 23 N.W. 46; Turner v. O'Brien, 5 Neb. 542; McCormack v. Perry, 47 Hun [N.Y.], 71; Greer v. Whitfield, 4 Lea [Tenn.] 85; Sherburne v. Rodman, 51 Wis. 474, 8 N.W. 414. See, also, City of Los Angeles v. McCollum, 156 Cal. 148, 103 P. 914, 23 L.R.A., N.S., 378, Note at page 393; Fleet v. Tichenor, 156 Cal. 343, 104 P. 458, 34 L.R.A., N.S., 323; 34 Am.Jur. § 138, p. 783.

It is urged by appellant that since the offense was a misdemeanor only, under the provisions of sec. 19-607, I.C.A., the arrest was unlawful. Said section provides, inter alia: "If it [offense] is a misdemeanor the arrest can not be made at night, unless upon the direction of the magistrate, indorsed upon the warrant."

Section 19-603, I.C.A., provides:

"A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:

"1. For a public offense committed or attempted in his presence. * * *"

The offense with which appellant was charged was committed in the presence of the arresting officer as established by the evidence and found by the jury, and was therefore lawful. State v. Hart, 66 Idaho 217, 157 P.2d 72.

Appellant strenuously urges the court erred in giving and refusing to give certain instructions. We have carefully examined all the instructions given, and instructions offered and refused. The instructions given, when considered as a whole, fully and fairly covered the issues and contain no prejudicial error.

"Where * * * the entire charge, will be considered together, and, if it fairly and correctly presents the law bearing upon the issues tried, the appellate court will not disturb the judgment." Territory v. Evans, 2 Idaho 425, 17 P. 139; State v. Schieler, 4 Idaho 120, 37 P. 272; People v. Chun Heong, 86 Cal. 329, 24 P. 1021; People v. Etting, 99 Cal. 577, 34 P. 237.

In specification of error No. 1 appellant complains the court erred in sustaining an objection to plaintiff's counsel questioning jurors as to whether or not they were stockholders in any insurance company or organization which had for its business the insuring of persons against damages for false imprisonment or malicious prosecution.

We do not find any reference to the above assignment in appellant's argument in her brief nor in her Points and Authorities. This court has repeatedly refused to consider assignments of error that are not discussed nor briefed. Malcolm v. Hanmer, 64 Idaho 66, at page 82, 127 P.2d 331, and cases therein cited. However, it might be here observed the action of the trial court in permitting or refusing the asking of questions relating to insurance companies is a matter within the court's discretion. Unless abused, that discretion will not be interfered with on appeal. Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585; Beasley v. Bond, 173 OkL. 355, 48 P.2d 299; Berry v. Park, 185 Okl. 118, 90 P.2d 425; Fritchman v. Chitwood Battery Co., 134 Kan. 727, 8 P.2d 368.

The court did not err, as urged in assignment No. 5, in denying the motion to strike all the testimony of the witness Ross Hickman. It was admissible, first, for the purpose of impeaching the plaintiff on material matters; second, it went to the question of probable cause, and third, it was not prejudicial error, for the reason that evidence of similar import and to the same effect was admitted without objection. State v. Johnston, 62 Idaho 601, at page 611, 113 P.2d 809; State v. Reding, 52 Idaho 260, at page 266, 13 P.2d 253.

Hickman testified that appellant used a tambourine in making her solicitations upon numerous occasions when the Salvation Army was holding its street meetings. Appellant testified that she had never used a tambourine in soliciting contributions. It was admissible upon the issue of probable cause, for the purpose of showing whether or not the police officers had cause to believe that Mrs. Clark's solicitations were for business purposes rather than religious or charitable purposes. Hickman, prior to Mrs. Clark's arrest, had complained to the officers that appellant was soliciting contributions at the times and in the manner above stated. Statements made to an officer by a third person are admissible upon the ground of probable cause. Carpenter v. Sibley, 15 Cal.App. 589, 119 P. 391; Selvester v. Kennedy, 137 Cal.App. 250, 30 P.2d 63.

Assignment of error No. 2 is predicated upon the action of the court in sustaining an objection, on redirect examination of appellant, as to what the city attorney said to her with reference to certain exhibits. The objection was properly sustained for the reason that it was hearsay as to defendants.

In assignment No. 3 it is urged the court erred in striking certain testimony elicited from Mr. Elliott as to what happened in the police court on the charge against appellant. Assignment No. 4 is to the same effect. The court committed no error in its rulings on these matters.

The criminal proceeding in the police court was never tried on the merits, but was voluntarily dismissed. The rule applicable is stated in 34 Am.Jur. p. 742, § 62, as follows:

"According to the weight of authority, an abandonment of the prosecution by the complaining witness, a discontinuance at the instance of the prosecuting attorney, a dismissal by the magistrate or court without a hearing of all the evidence, and other similar terminations of a criminal proceeding whereon an action of malicious prosecution has been based are not regarded as constituting evidence of want of probable cause, and they raise no presumption thereof. * * *" Fowler v. Ruebelmann, 65 Idaho 231, 142 P.2d 594, 596.

There was no prejudicial error, as contended in assignment No. 6, in the action of the court in sustaining the objection to the question asked witness Hickman, namely, "Do you feel that the information you had received from these various sources was sufficient information to justify you in signing a complaint against Mrs Clark?" The witness never signed a complaint and, at most, it would be but a conclusion.

Assignment of error No. 12 raises the question of whether or not the court erred in overruling appellant's objection to the introduction of defendants' exhibit "G", a certified copy of Ordinance 1354 of Boise City, defining and providing the punishment for the crime of vagrancy.

Appellant's objection is bottomed upon the proposition that Exhibit "G" "is incompetent, irrelevant and immaterial, and not in conformity with the state law covering this misdemeanor and is in conflict with the state statute and is, therefore, no justification for these defendants in this case, and not admissible in evidence."

A comparison of sec. 17-4601, I.C.A., and Ordinance 1354, Exhibit "G", discloses they differ in the following particulars: The ordinance deletes the word "healthy"; second, the ordinance fixes the punishment at a fine of "not less than Ten nor more than One Hundred Dollars", while the statute fixes the punishment as "imprisonment in the county jail not exceeding ninety days."

It is contended by appellant that these are material variances and therefore fatal to the ordinance. Furthermore, it is contended the ordinance is a local and special law for the punishment of crimes and misdemeanors, which the Legislature may not pass, nor delegate to a municipality the authority to pass, and it denies equal protection of the laws, and for these reasons is void and unconstitutional.

With this contention we are not in accord. Boise is a Special Charter city. Art. 21, sec. 2 of the Constitution provides: "All laws now in force in the Territory of Idaho, which are not repugnant to this Constitution, shall remain in force until they expire of their own limitation or be altered or repealed by the legislature." Wiggin v. City of Lewiston, 8 Idaho 527, 69 P. 286; Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234; Boise City Nat. Bank v. Boise City, 15 Idaho 792, 100 P. 93; Kessler v. Fritchman, 21 Idaho 30, 119 P. 692; Hoffer v. City of Lewiston, 59 Idaho 538, 85 P.2d 238.

Section 2, art. 12 of the Constitution provides: "Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its character or with the general laws."

Prior to statehood Boise City Charter (sec. 11, Act of January 11, 1866) authorized the Mayor and Council "to provide for the support, restraint and employment of vagrants and paupers." October 6, 1882, the Mayor and Council enacted Ordinance No. 58 defining the crime of vagrancy. This ordinance was amended March 10, 1897, by Ordinance No. 200; it was amended again by Ordinance 1144, passed October 28, 1914. Prior to the last amendment the word "healthy" was included in the ordinance. Likewise, prior to the 1914 amendment the charter provision relating to vagrancy was broadened by sec. 37, House Bill 64, 1901 Sess. Laws, p. 109. That amendment, now sec. 42(13) of the Charter, as amended by Chap. 215, § 6, 1939 Sess. Laws, reads, in part, as follows: "To define what shall constitute vagrancy, and provide for the support, restraint, punishment and employment of vagrants and paupers; * * *." Under the statute above cited the Mayor and Council were authorized to define vagrancy and to fix the punishment therefor.

In City of Seattle v. Chin Let, 19 Wn. 38, 52 P. 324, 325, the following language is used: "We think that the city had authority to pass the ordinance in question, and that it was within the powers conferred by the charter and general law of the state. The reasoning of the respondent would lead to the conclusion that the council, in drafting ordinances defining offenses committed within the limit of the city, should be restricted to the particular offenses created by the general laws of the state, and also to the particular words and terms used by the legislature in defining such offenses. We think the right of the city to enact the ordinance in question was in no wise affected by the existence of section 139, supra."

The fact that the ordinance in question is somewhat broader in scope than the general statute, and provides a different penalty, it does not necessarily follow that the ordinance is unconstitutional.

In State v. Preston, 4 Idaho 215, 38 P. 694, this court said, quoting from the second syllabus: "Municipal corporations may pass ordinances for the punishment of and may punish for the same acts as are punishable under the Penal Code, when authorized so to do by the law under which such towns and villages are organized."

Quoting from the same case, 4 Idaho at page 220, 38 P. at page 695, from Cooley's Constitutional Limitations, 6th ed., 239: "'Indeed, an act may be a penal offense under the laws of the state, and further penalties under proper legislative authorities be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other.' * * * 'And where the terms of the incorporating act clearly include the power, such result would appear to be unquestionable.' The legislature of this state has conferred on towns and villages, under proper ordinances or by-laws, authority to punish vagrants and persons found without visible means of support or some legitimate business, and the ordinance in question is clearly within the authority so conferred."

In Mann v. Scott, 180 Cal. 550, 182 P. 281, 283, the court said: "Where the Legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipality with subordinate power to act in the matter may make such new and additional regulations in aid and furtherance of the purpose of the general law as may seem fit and appropriate to the necessities of the particular locality, and which are not in themselves unreasonable." 19 R.C.L. sec. 110, pp. 803-4; State v. Quong, 8 Idaho 191, 67 P. 491; Ex parte Hoffman, 155 Cal. 114, 99 P. 517, 132 Am. St.Rep. 75; Society Theater v. City of Seattle, 118 Wn. 258, 203 P. 21; Portnoy v. Superior Court Etc., Cal. App., 116 P.2d 804; Natural Milk P. Ass'n v. City and County of San Francisco, 20 Cal.2d 101, 124 P.2d 25.

Finding no prejudicial error, the judgment must be affirmed, and it is so ordered. Costs to respondents.

HOLDEN and MILLER, JJ., and BUCKNER, D.J., concur.

AILSHIE, C.J., (dissenting).

I am unable to agree to an affirmance of the judgment in this case. I think the ordinance in question (No. 1354), discussed in the majority opinion, is in conflict with the constitution and laws of the state.

I also call attention to the fact that exhibit "G", to which reference is made in the majority opinion, does not seem to correspond with section 4-1501, Boise City Code 1936 (printed and certified) dealing with the same subject.

"Ordinance No. 1354
By the Council
An ordinance amending Ordinance No. 1144 passed by the council and approved by the Mayor on the 28th day of October, 1914 defining vagrancy and providing a penalty for the violation thereof.
Be it ordained by the Mayor and City Council of Boise City, Idaho:
Section 1. That Ordinance No. 1144, passed by the Council and approved by the Mayor of Boise City, Idaho, on the 28th day of October, 1914, be, and the same is hereby amended to read as follows:
Section 2. Every person without visible means of living, who has the physical ability to work, and who does not for the space of ten days seek employment, nor labor when employment is offered him; every beggar who solicits alms as a business; every person who roams about from place to place without any lawful business; every idle or dissolute person, or associate of known thieves, who wanders about the streets at late or unusual hours of the night, or who lodges in a barn, shed, shop, outhouse, or place other than such as is kept for lodging purposes, without the permission of the owner or party entitled to the possession thereof; every lewd and dissolute person, who lives in and about houses of ill-fame, or solicits for the purpose of prostitution or lewdness upon the streets, alleys or public places of the city, and every common prostitute and common drunkard, is a vagrant, and upon conviction in the Police Court of said city shall be punished by a fine of not less than Ten nor more than One Hundred Dollars.
Section 3. This ordinance shall be in force and take effect ten days after its passage, approval and publication.
Passed the Council of Boise City, Idaho, this 9th day of May, 1922.
Approved by the Mayor of Boise City, Idaho, this 9th day of May, 1922.
Approved. Eugene B. Sherman, Mayor. Attest:
Angela Hopper
Angela Hopper, City Clerk".

CLARK v. ALLOWAY