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possessed of lands, and learned in the law.2
III. MANNER OF SELECTING IN UNITED STATES.-In most of the United States, justices of the peace are chosen at the general election. In the following
In the following States and territories the justices are elected: Alabama, Arkansas,4 California, Colorado, 6 Connecticut,7 Dakota, Georgia, Illinois, 10 Indiana,11 Iowa,12 Kansas,13 Kentucky, 14 Louisiana, 15 Nichigan, 16 Minnesota, 17 Nississippi, 1 Missouri,19 Nebraska,20 Nevada,21 Notu Jersey, 22 Not Nicxico,23 Now York,24 North Carolina,25 Ohio,26 Orcgon 27 Pennsylvania, 28
1. 18 Henry VI, ch. II; Holt, C. N. 16. In each township four justices, P. (Eng.) 458. See also 39 Vict., ch. 24. who hold for four years.
who hold for four years. Const. Mich. 2. 13 Rich. II, ch. 7.
(1850), art 6, § 17; i Mich. Stats. 3. Two for each precinct, who hold (How. Ann.), p. 53. for four years. Const. Ala., art. 6, 17. In each town, at the stated town § 13, Code, $ 754.
meeting, two justices, who hold two 4. One for every two hundred votes, years.
years. Rev. Stats. Minn., p. 109.
. . but two in every township, however 18. And hold two years. Const. Miss., small, hold for two years. Dig. Stat- art. 6, § 23; Rev. Code Miss., § 118. utes Ark., $$ 4016, 4017.
19. In each municipal township, two 5. In their respective townships or justices (cities and incorporated towns cities, and hold their office two years. may have more than two justices) hold 2 Code Cal., § 10113.
for four years.
I Rev. Stats. Mo., 6. A justice in each precinct, who $$ 2807, 2813, 2816, 2805. holds for two years. Gen. Stats. Colo., 20. In and for such districts as may be 8 666, p. 274.
provided by law. Const. Neb., art. 7. And hold office for two years. 6, § 18, 2. Gen. Stats. Conn., pp. 240, 373 to 375, 21. And are township officers, hold 381, 607.
for two lears. 2 Comp. Laws Nev., 8. By the voters of the county and 98 2216, 2620. hold for two years. 2 Levissees, Da- 22. At annual meetings of the townkota Code, p. 375.
ship and wards in the counties, hold one 9. In each militia district, hold for year. Rev. Stats N. J., p. 534. four years, unless removed. Code of 23. In such manner as the legislature Ga., $ 435; Hinton v'. Lindsay. 20 Ga. prescribes. Comp. Laws New Mex
ico, p. 60. 10. In and for such districts as are or 24. And hold four years. Rev. Stats. may be provided by law. Const. Ill. N. Y., p. 358. (1870), art. 6, $$ 21, 28; 1 Rev. Stats., 25. llere justices are elected by the pp. 135, 137.
general assembly and are not required 11. In each township, and hold four to give official bonds. 1 N. C. Code, years. Const. Ind. (1851), art. 7, § 819. § 14; Rev. Stats., § 174, p 26. As to 26. A competent number in each justice's bond, see State 7". Flinn, 3 township, who hold three years. Const. Black. 72. Also Kress z'. State, 65 Ind. Ohio (1851), art. 4, § 9. 106; and Dietricks 7'. Shaw, 43 Ind. 175. 27. One in eich election precinct, who
12. In each township two justices, who holds two years. Gen. Laws Oreg., p. hold two years.
Rev. Code Iowa, 695. $ 389. p. 84, and $ 590, p. 162.
28. And hold five years. Const. Pa., 13. In each township two justices, who art. 5, $ 7. hold two years.
Const. of Kansas, ait. 29. If trial justices, they hold three 3, § 1, 9; Phillips '. Thralls, 26. Kan. ye.rs. Pub. Stats. R. I., pp. 20, 74, 75, So; Wilcox t. Johnson, 34 Kan. 655. 519.
14. In each justice district designated 30. The constitution of 1868 provided by the county court of the county, two that a competent number shall be justices, who hold for four years. chosen in each county by the voters Gen. Stats. Ky., p. 376.
thereof as the general asseinbly directs. 15. In each police jury ward, and hold In 1870 the legislature authorized the two years.
governor, with the consent of the
Tennessee, Texas,2 Vermont,3 Virginia,4 West Virginias and
IV. QUALIFICATIONS.—To be eligible to the office of justice of the peace, the person must be a citizen of the United States, a male13 citizen of the State in which he is elected or appointed, must be of good moral character, and generally must reside in the subdivision of territory to which the office is appurtenant, 14 and must have his office located within that territory 15 A justice is disqualified to try a case when he is related to either of the parties to the suit, and this relationship which disqualifies differs in different States. 16
senate, to appoint trial justices with Wilcox v. Johnson, 34 Kan. 655. If full jurisdiction usually exercised by the justice holds his office elsewhere justices for each county, to hold for two he may be, by mandamus, compelled to years. Const. S. Car., art. 4, § 21; Rev. remove to the lawful territory. State Stat. S. Car., p. 194.
v. Shropshire, 4 Veb. 411; Hall v. Peo1. Two in each civil district. Three ple, 57 Ill. 307; People v. Halsey, 37 N. at the county seat and more in the Y. 348; Hamilton '. State, 3 Ind. 458; larger towns and cities. They hold six State v. Judge, 7 Iowa 186. As to who years. M. & V. Code Tenn., 99 389 to may be relator, see further, People v. 394 and 5829.
Halsey, 37 N. Y. 348; State v. Bailey, 2. Two for each precinct, who hold 7 Iowa 390; County Com. v. State, i Pasch. Laws Texas, pp.
II Ill. 202. Contra, Heffner v. Com., 285, 286.
28 Pa. St. 108; People 7'. Regents, 4 3. By the freemen of the towns and Mich. 98; People 7. Inspectors, 4 hold one year. Const. Vt. (amended), Mich. 187; Arberry v. Bearers, 6 Tex. 18, 19; Rev. Stat. Vt., p. 47.
457; Sanger 7. Com., 25 Me. 291; 4. And hold for three years. Const. Mitchel z'. Boardman, 79 Me. 469; BobVa., art. 7, 9 2.
bett v. State, io Kan. 9. 5. And hold four years. Rev. Stat. 16. Disqualified by Relationship.-If W. Va., ch. 73, § 2.
related to a party in interest, though 6. Four in each township, two annu- ignorant of the interest
, it has been ally at town meeting, and hold two held the justice has no jurisdiction, years. Rev. Stat. Wis., pp. 285, 286. and in issuing an execution on a judg7. And hold for seven years.
Const. ment rendered under such circumMe., art. 5, pt 1, § 8.
stances, he is a trespasser. Birdsall v. 8.' And hold for two years. Rev. Fuller, u Ilun (N. Y.) 204. But the Code Md., p. 520.
relationship must be so near as to raise 9. By and with the advice of council. of itself evidence of partialty. EgglesThey hold for three years. Pub. Stat. ton z'. Smiley,17 Johns. (N.Y.) 133, 191; Mass., p. 863
Carman 7'. Newell, i Den. (N. Y.) 25. 10. And hold for seven years if they The relationship which disqualifies is behave well. Const. Del., art. 6. § 24. held to include sister in law. Foot v.
. 11. As many as he deems necessary. Morgan, i llill (N. Y.) 654. Or son in
. They hold four years subject to removal law. Rivenburgh 7'. llenness, 4 Lans. by the governor. Const. Florida (1875), (N. Y.) 208; Watterson z'. Ramsey, 2 art. 6. 15.
Pa. County Ct. 137. Brother or son or 12. They hold five years. Const. N. son in law. See The Complete Digest II., art. 75.
See also Murfree's Justice, (1887), "January to June," p. 1589. Practice, schedule "A" to g 8, from In Connecticut, the justice is disquali. which the above synopsis is taken. fied where he or his son, father, 13. Anonymous, 107
Mass. 604; brother, father in law, son in law, partOpinion of Sup. Ct., 62 Me. 596; Mur- ner, clerk or student, or any other free's Justice, Practice, $$ 9, 10, Il. person occupying the same office, shall
14. Murfree's Justice, Practice, 9 act as attorney, or shall have drawn up 15. Phillips v. Thralls, 26 Kan. 780; the declaration or complaint.” Pub.
V. DE JURE OR DE FACTO JUSTICES. —A justice of the peace may be a de jure or a de facto officer.1 " The distinction between a de jure and a de facto officer is well settled and understood. Justices in common with other officers may be merely de facto justices, if their title to their offices is defective, but their possession and exercise of the function of the office is acknowledged and understood.''2
VI. Ex OFFICIO JUSTICES.—In some States, the acts incorporating cities make mayors or other city officers justices of the
Acts Conn. (1887), ch. 50, p. 686. See and in favor of third persons, and to also p. 681, where the justice is dis- protect innocent parties who have qualified on reaching seventy years of trusted to the apparent title of an offiage. See generally Edwards v. Rus- cer. People v Albany etc. R. Co., 38 sell, 21 Wend. (N. Y.) 63; Travis v. How. Pr. (N. Y.) 228, 267; S. C., 2 Lans. Jenkins, 30 How. Pr. (N. Y.)_152; (N. Y.) 459; 57 Barb. (N. Y.) 204. Spear v. Robinson, 29 Me. 531; Daw- If a person is sued for an act done by son v. Wells, 3 Ind. 398. After final himself
, and for the doing of it he jusv judgment, held, too late to object that tifies as an officer, he may show, in the plaintiff and the justice are brothers in first instance, by parol evidence, that at law. Rector v. Drury, 4 Chand. the time, he was such officer de facto, (Wis.) 24.
for such evidence is prima facie eviSee generally De Facto OFFI. dence that he is such officer de jure. CERS, vol. 5, p. 93 et seq.
Willis 2. Sproule. 13 Kan. 257; Brown 1. Rheinhart v. State, 14 Kan. 318; v. Connelly, 5 Blackf. (Ind.) 390.
5 Laver W. McGlatchin, 28 Wis. 454; There can be no de facto officer State v. Bloom, 17 Wis. 521; State v. when there is no office to fill. Messmore, 14 Wis. 163; Pool 7'. Perdue, In re Hinkle, 31 Kan. 717; Leach v. 44 Ga. +5+; İlinton v. Lindsay, 20 Ga. People, 118 Ill. 157; People v. Veuve, 746; People v. Stevens, 5 Hill (N. Y.) (Cal.), 3 Pac. Rep. 862. An officer de 616.
facto must be in the actual possession of 2. Murfree's Justice, Practice, § 13.- the office and have the same under his A person clected justice of the peace, control. If the officer de jure is in but who has neglected to take the of- possession of the office, no other person ficial oath or give the official bond, is, can be an officer de facto for that office. nevertheless, in office by color of title, Two persons cannot be officers de and his acts are valid as regards the pub- facto for the same office at the same lic and third persons, and binding on time. M'Cahon v. Leavenworth Co. the parties to the action brought before 8 Kan. 437, him, yet he could not recover his fees, The legality of the appointment or and he would be a trespasser if he en- of the election of the justice cannot be forced the payment rendered in the attacked collaterally. Baker v. State, action against the property of the de- 66 Wis. 42; State v. Brooks (La.), 2 S. fendant. In such a case he would be a Rep. 498, Hamlin
Rep. 498, Hamlin v. Dingman, 41 de facto, but not a de jure, justice. How. Pr. (N. Y.) 132; s. C., 5 Lans. Greenleaf v. Low, 4 Den. (N. Y.) 168; (N. Y.) 61. Snyder 2. Schram, 59 How. Pr. (N. As to the rights of the de jure officer Y.) 404; People r'. Cook, 8 N. Y. 67, against intruders, and when they can 84: s. c. 59 Am. Dec. 463; Weeks v. be enforced, see Bier v. Gorrell, 30 Ellis, 2 Barb. (N. Y.) 320; Riddle v. W. Va. 95; Selby v. Portland, 14 Bedford Co., 7 S. & R. (Pa.) 386; Oreg. 243; Hannon v. Grizzard, g6 People 2. Peabody, 6 Abb. (N. Y.) Pr. N. Car. 293; Andrews v. Portland, 79 234; Morton v. Lee, 28 Kan. 286. See Me. 384. also Farrier v. State, 48 N. J. L. 613; But an oath administered by a de People v. Colerick (Mich.), 34 N. W. facto justice cannot be made the basis Rep. 683; People v. Webber, 86 111. 283. of a prosecution for perjury, yet the de But there can be no officer de facto as fendant must rebut the presumption against the people in an action by the that the officer is a de jure justice. people to try the title to the office. The Biggerstaff v. Commonwealth, 11 Bush doctrine of de facto officers applies to (Ky.) 169.
peace, ex officio. But, in such cases, the termination of the officer's term as city officer extinguishes his authority as a justice, and his jurisdiction is limited to the city's territory, and is, generally, limited to criminal causes, or misdemeanors. In other States it is decided that the mayor or other city officer of a city cannot exercise the functions of a justice of the peace. In Georgia, a notary public is, ex officio, a justice for his district.
VII. BOND OF JUSTICES.—In nearly all the States a justice is required, by statutory enactment, to execute an official bond before
, entering upon the discharge of his official duties. Yet in some States an official bond is not required. 6 The penalties of the bonds are not uniform in the various States, and the conditions of the bonds vary considerably.8
VIII. BREACH OF THE BOND.—Generally, if the condition of the bond is to faithfully discharge the duties of the office, it is broken only by gross negligence. An error in judgment or unskillfulness is not a breach of the bond.9 There is no distinction between the liability of principal and the sureties on the bond.10
1. Dunham e'. Solomon, i Harr. (N. Kansas, a bond must be executed with J.) 50. It is held in Indiana that with sufficient sureties conditioned "to pay on
limits a mayor has jurisdic- demand, to each and every person who tion and powers of a justice, but as a may be entitled thereto, ali sums of general rule an action may be brought money as the said justice may become before him upon a contract made or a liable to pay, on account of moneys tort committed without the city, if de- which may come into his hands by fendant lives in the city. Wabash etc. virtue of his office.” Comp. Laws Kan. Co. v. Lash, 103 Ind. 8o.
(1885), ch. 110, § 19, p. 986. 2. Honeyman's Practice (N. J.), $ 8. In K’insas, see preceding note. 23; Weeks v.
v Forman, i llarr. (N. J.) In Texas, faithful payment of public 237.
The constitutionality of the and private money to the person enright to confer power upon the mayor, titled to it. i Pasch. Laws Tex., art. etc., to try civil causes, has been ques- 1175, p. 285. In Illinois, to secure the tioned, but sustained. Hutchins v. discharge of their duties. Ill. Rev. Scott, 4 Halst. (N. J.) 218; McGear v.
v Stat., pp. 135 to 137. In 0.lio, see Rev. Woodruff 4 Vroom (N. J.) 218. As
As Stat. Ohio, $ 579, p. 30, Supplement. In to mayor's authority to deputize a jus- Indiana, see Rev. Stat. ind. p. 271. tice to act in case of his absence or in- Statet. Flinn, 3 Blackf. (Ind.) 72. ability, see County v. City of Los Also Kress v. State, 65 Ind. 206; WideAngeles, 65 Cal. 282.
ner v. State, 45 Ind. 244. In New 3. Edenton r. Wool, 65 N. Car. 379; Jersey, for the payment on demand, Wilmington 2'. Davis, 63 N. Car. 582. to the person authorized to receive the
4. Pool 2. Perdue, 44 Ga. 454; Hinton same, of all moneys that come into v. Lindsay, 20 Ga. 746.
his hands as justice during his term. 5. Murfree's Justice. Practice, § 8 Rev. Stat. N. J., p. 535, § 10. Ileneyschedule A and statutes cited. See the man's Practice (N. J.), p. 34. statute of the several States.
9. Alexandria 2. Coise, 2 Cranch 6. Rev. Code Md. (1978), p. 520; I (U. S.) 363; Knell v. Briscoe, 49 Md. Code N. Car. (1883), § 819.
414. But see Kress v. State, 65 Ind. 106. 7. In Mlinois, not less than $2,000. io. Seaver v. Young, 16 Vt: 658. As 1 Ill. Rev. Stat., pp. 135, 137. In Iowa, between claimants he who first sues $500. Rev. Code Iowa, § 678. In New and obtains judgment is entitled to the Fersey, not less than $500, nor more whole penalty, if his claim amount to than $3,000, as judges of common pleas so much, to the exclusion of the others. may deem sufficient, or any three of Christman v. Commonwealth, 17 S. & them. Rev. Stat. X. J. 535, § 10. In R. (Pa.) 381.
While the surety is liable only for acts of the principal done subsequent to the time of the giving of the bond, yet he is liable for money coming into the principal's hands before he executes the bond, when the money is in the principal's hands, at the time the bond is given.2
The acts of the justice are either judicial or ministerial, and the discrimination between them is very important because of the consequence of an error in their performance, yet the distinction is not clearly marked. And as a justice is called upon to perform many acts judicial and ministerial, he should have a knowledge of their difference. A judicial act is “the act of a public functionary, who, being clothed by law with authority to act in the premises, and having jurisdiction of the subject matter and the persons to be affected, exercises his judgment and discretion, not merely obeying a prescribed formula which leaves him no alternative, and pronounces a decision which must be obeyed by the parties interested, or issues an order which must be carried into effect by other officials.” 3 And whenever a justice acts within the scope of his jurisdiction he is not liable, however erroneous his acts may be. But being invested with special and limited jurisdiction he must, at his peril, keep within his prescribed authority, for if he exceeds his jurisdiction he is answerable to anyone who is injured thereby.5
A ministerial act is “one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the acts being done.
If a ministerial duty is annexed to a judicial office, and the officer perform that duty wrongfully, whether by mistake or fraud, he is liable to the party injured.?
1. Jeffers v. Johnson, 3 Harr. (N. J.) Marshalsea Case, 10 Coke 65. See also 382.
title Courts, vol. 4, p. 449. Respecting 2. State v. Van Pelt, 1 Ind. 304. cases of doubtful jurisdiction see title 3. Murfree's Justice, Practice, $ 975. JUDGE.
4. Clark 7. Spicer, 6 Kan 440; Yates 5. Truesdell v. Combs, 33 Ohio St. v. Lansing, 9 Johns. (N. Y.) 394, note 186. Cohoon v. Speed, 2 Jones (N. and cases cited; Evans z'. Foster, i N. Car.) 133; Clark zi. May, 2 Gray H. 377; Lining 2. Bentham, 2 Bay (S. (Mass.) 410; Knowles z'. Davis, 2 Allen Car.) 1; Steele v. Dunham, 26 Wis. 396; (Mass.) 61; Lange v. Benedict, 73 N. Barhyte z'. Shepherd, 35 N. Y. 242; Y. 12, 27. Jordan 7. Hanson, 49 N. H. 202; Kib- 6. Murfree's Justice, Practice, § 975; 2 ling v. Clark, 53 Vt. 379; Lange z. Ben- Bouv. Law Dict., p. 237. edict, 73 N. Y. 12; Mangold 7'. Thorpe, 7. Beaurain v. Scott, 3 Campb. 358; 33 N. J. L. 134. But see Kress v. State, Holden v. Smith, 14 Q. B. 841; Taylor 65 Ind. 106.
7. Doremus, 16 N. J. L. 473; Stewart v. English Cases.-Barnardiston v. Soame, Cooley, 23 Minn. 347; Fox zł. Meacham, 2 Lev. 114; Floyd 2. Barker, 12 Coke 6 Neb. 530. 23; Garnett v. Ferrand, 6 B. & C. 611; A ministerial act is to be carefully Dicas v. Brougham, 6 C. & P. 249; Brit: distinguished from a judicial act, for tian v. Kennaird, 1 B. & B.441; Groen- "not all acts performed by a judicial ofvelt v. Burwell, I Ld. Raym. 454; ficer are therefore judicial, since such Ackerley v. Parkinson, 3 M. & S. 411; an officer may be enjoined by law to