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general rule, he is not entitled to a notice of the intended action, yet it has been held that the notice is necessary before the suit can be maintained. 1 The justice is criminally liable for extortion and malpractice.2

XVI. VACANCY IN OFFICE OF JUSTICE-1. How Occasioned. In some States, the constitution provides that there shall be a cer

or committing him for trial.” State v. tion in office, but they are not civilly Sneed, 84 X Car. 816. See farther liable to a party. Kress 2'. State, 65 BREACHES OF BOND, upra. “Where Ind. 106. Compare Kennedy z'. Barhis duty is absolute, certain and imper- nett, 64 Pa. St. 141. See Shearman & ative, contemplating merely the execu- Redfield on Neg. (1st ed.), ch. 9 tion of a set task-in other words, is and notes; Deering on Neg., 0 simply ministerialhe is liable in dam- 228, 229. See further McClure 7'. State, ages to anyone specially injured either 37 Ark: 426. As to when the justice is by his omitting to perform the task, or not, but the plaintiff is, liable for by performing it negligently or unskill- wrongful attachment, see Connelly z'. fully. On the other hand, where his Woods, 31 Kan. 359; also Wright ?'. or withheld according to his own judg. Rouss, 18 Neb. 237: The justice is powers are discretionary, to be exerted liable for erroneous judgment when he ment as

to what is necessary and has no jurisdiction. Estopinal z'. Peyproper, he cannot be held liable civilly roux, 37 La. An. 177. lle is liable for for a neglect to exercise those powers, imprisoning defendant without judgnor for the consequences of a lawful ment. Lanpher 7. Dewell, 56 Iowa exercise of them, where no corruption 153 Compare Anderson 2. Park, 57 or malice can be imputed, and he keeps lowa 69. Entering judgment is miniswithin the scope of his authority. terial, and justice is liable for enterShearman & Redfield on Neg. (isting judgment for defendant when it ed.), § 156. See also Deering on Neg., should have been for the plaintiff. 99 228, 229, and cases cited. Trues- Christopher z'. Van Liew, 57 Barb. (N.

' dell v. Combs, 33 Ohio St. 186. See

Y.) 17. Bocock v. Cochran, 32 Hun (N. Y.) 1. “By a recent ruling in Georgia, 521; Mangold v. Thorpe, 33 N.J. L. 134. that in that State a justice against

; Granting or refusing an appeal is a whom an action for damages on acjudicial act in New Hampshire. Jordon count of a misdemeanor in office is con21. Hanson, 49 N. H. 199. See further templated, is entitled to a written Clark v. Spicer, 6 Kan. 440. Compare notice one calendar month before the

, Kelly v. Bemis, 4 Gray (Mass.) 83, as suing out of the process. ,

And unless to liability of justice acting under a such notice be given the action cannot statute declared unconstitutional. Al- be maintained, and a declaration in lowing a bill of exceptions is a judicial which the due service of such a notice act. Whitzell v. Forgler, 30 Kan. 525. is not averred is fatally defective on deTaxing costs and rendering judgment murrer.” Murfree's Justice, Practice, therefor are judicial acts, and a justice 1006; citing Collins 2'. Granniss, 67

§ ; is not liable to county attorney for re- Ga. 716; Warthen 2. May, 1 Ga.

I fusing to tax as part of the costs in a (Kelly) 602.


And in Georgia the misdemeanor case his fee. State v.

offence of malpractice can be prostJackson, 68 Ind. 58; or for rendering a cuted only by indictment. Hawkings judgment for costs in a case wrongfully v. State, 54 Ga. 653. White v. Morse, 139 Mass. 162.

In Minnesota, no liability, civil or Ohio, issuing an execution by the criminal, attache: to justice for failure justice is held to be a ministerial act. to pay over money until after demand, Carpenter z'. Warner, 38 Ohio St. 416; and it is necessary also to aver the deContra, Abrams th. Carlisle, 18 S. Car. mand.

mand. State r'. Coon, 14 Minn. 456. 242. In Marvland, it is held if a 2. State z'. Seawell, 64 Ala. 225; Cutjustice acts maliciously, fraudulently ter v. State, 36 N. J. L. 125; Wilson z'.

)r and corruptly in discharging judicial State, 38 Tex. 548; State v. Maires, 33 duties, he is liable to the party injured, N. J. L. 142. Compare Collins v. but not for errors or mistakes. Knell Granniss, 67 Ga. 716; Hawkins v. Briscoe, 49 Md. 414. But in Indiana, State, 54 Ga. 653; State v. Coon, 14

, justices may be impeached for corrup- Minn. 456.




tain number of justices elected and that they shall hold their offices for a certain number of years. And in some States the legislature may, by its enactments, provide for increasing or diminishing the number, as the necessity may require. And when there is a vacancy, there are enactments providing for filling it.3 A vacancy in the office of justice may be occasioned in several different ways; by death of the incumbent; by resignation; by forfeiture and removal from office; by justice removing from the territory in and for which he was elected ; by changing of the boundary lines of the county, township, city or ward in which the

, justice resides, by reason of which he may come into a different municipal organization; or by refusal or neglect of a person elected to qualify when there is no person holding the office.4

1. Justices' terms of office vary very court. Stamm 2. Dixon, 49 Wis. 328.

, much in the States; the usual term is In Kansas, where, by the division of two years or four years. Murfree's a township, one of its justices is thrown Justice, Practice, g 8. However, their into a different township, there is a terms vary from seven years in Maine vacancy in the original township which to two years in California. Rev. may be filled by appointment. Frazer Stat. Me. (1883), p. 48; 2 Codes Cal., v. Miller, 12 Kan. 459; Odell 2. Dodge, $ 10113

16 Kan. 446. See Wood v. Bartling, 16 2. Comp. Laws Kan. (1885), ch. 110, Kan. 109. Examine carefully Jones v. art. 8. “In case the number of justices Gridley, 20 Kan. 584. of the peace in any township shall be "Justices of the peace shall hold their decreased, the docket of any such offices for two years, except when justice, whose office may be vacated, elected to fill a vacancy, and when so shall be placed in the hands of some elected shall hold during the unexpired justice of the same township,” who term. All township officers appointed shall attend to the business. Comp. to fill vacancies shall hold their office Laws Kan. (1885), ch. 110, art. 8, § 37; until the next regular township elecBorton v. Buck, 8 Kan. 302. And it is tion.” Comp. Laws Kan. (1885), ch. held in Missouri, that a justice in 110, $$ 14, 15. A was elected justice possession of the docket of his prede- for two years and qualified, but during cessor in office is presumed to be law- the first year he resigned. B was apfully in possession of it, and that he pointed to fill the vacancy more than has power to hear the cases upon it, thirty days prior to the first succeeding Kronski v. Missouri etc. Co., 77 Mo. regular election, and at that election 362; 1 Rev. Stat. Mo. (1879), § 2803. was elected justice. Held, that this

3. Comp. Laws Kan. (1885), ch. 110, election of B was only to fill the va§ 5, provides that if there is a vacancy cancy, and his term expired at the end at the time of the annual township elec- of the term for which A was elected. tion, “such vacancy shall be filled at Hale v. Evans, 12 Kan. 562. See also said election." See Rev. Stat. Ill. Rev. Stat. Ill. (1880), ch. 79, 3; 1 Rev. (1880), p. 654. See also i Rev. Stat. Stat. Mo. (1879), § 2809; State v. ManMo. (1879), § 2809; State v. Manning, ning, 84 Mo. 661. 84 Mo. 661.

The 'election of a person as justice, 4. Borton v. Buck, 8 Kan. 302.

and his refusal to qualify, will not While the expiration of the term for create a vacancy in the office, where which a person was elected does not justices hold until their successors are create a vacancy, yet it, by reason of elected and qualified, but the person the expiration of the term a justice filling the office at the time of the elecceases to act, and delivers his books to tion will continue to hold the same. another justice, the justice to whom Borton ?'. Buck, 8 Kan. 302. See genthe books and papers of the former erally Commonwealth v. Hanley, 9 Pa. shall be delivered may proceed to try St. 513; State v. Dilloway, 31 N. J. L. the cases, and a judgment rendered by 42; Hendricks v. McLean, 18 Mo. 33; the former may be duly certified to by People 2. Whitman, 10 Cal. 38; State v. the latter for docketing in the higher Lusk, 18 Mo. 333.


When the justice goes out of office, it is his duty to deliver to his successor his docket and everything belonging to the office, and his successor completes the unfinished business.1

2. How Vacancy Filled.—In many States, the vacancy in the office of justice of the peace is filled by appointment of a person to fill the unexpired term, and the appointee usually holds the office until his successor is elected and qualified. But in some States the appointment is made by the county court.2 Or the

Where a person is appointed justice N. Y. 170. See generally Blood v. and qualifies for, and enters upon the Mercelliott, 53 Pa. St. 391; Duncombe discharge of the duties of, the office, v. Prindle, 12 Iowa 1; Brandon v. State, and has full possession of the books, 16 Ind. 197. The legislature has power papers and docket pertaining to the to abolish or destroy a municipal townoffice, and holds

after the ship, and when it does so the township expiration of his term of office, officers must go with it. In re Hihkle, refuses, upon demand of his succes- 31 Kan. 712. sor in office, to deliver the office or A justice may be removed from office papers, and books, and docket, but re- for wilful neglect of duty, corruption in tains charge and control of the same, office, habitual drunkenness, "incomand is generally recognized by the petency, or any offence involving people of his township as a justice, moral turpitude while in office, or comheld, that he is a de facto justice, and mitted under color thereof, or connected his acts are valid in so far as the public therewith.” Const. Ala. (1875), art. 7, and third persons are concerned. Mor- § 8; State v. Seawell, 64 Ala. 225; Code ton v. Lee, 28 Kan. 286; 2 Kent's Com. N. Car. (1883), § 826; Wilson v. State, 295; Petersilea v. Stone, 119 Mass. 467; 38 Tex. 548. And also for gambling. Hildreth v. McIntire, i J. J. Marsh. Comp. Laws Kan. (1885), ch. 31, $$ 282 (Ky.) 206; S. C., 19 Am. Dec. 61 and J, 282 K. In some States, however, he note; Hamlin v. Kassafer, 15 Oreg. is entitled to notice before action civil 456; People v. Stevens, 5 Hill (N. Y.) or criminal can be had against him. 630; Burton ?'. Patton, 2 Jones L. (N. State v. Coon, 14 Minn. 456; Warthen

' Car.) 124; People z'. Sassovich, 29 Cal. v. May, i Ga. 602; Collins v. Granniss, 480. The legal remedy for the party 67 Ga. 716. out of office to obtain the same is by 1. Murfree's Justice, Practice, 99 1010, quo warranto. People 2. Common

See Pittsburgh etc. R. Co. v. Council, 77 N. Y. 503; s. C., 33 Am. Fleming, 38 Ohio St. 480. Rep.659; Boone's Code, Pleading, $ 188. 2. In Ilissouri, where a vacancy

It is held, that where cities are au- occurred in the office of justice, the thorized to elect justices, and the county court, or, in the city of St. regular city election is held at a different Louis, the mayor, is authorized to fill time from the general election, jus- the vacancy by appointment, but the tices are to be elected at the regular term of such appointment extends only city, and not at the general, election. until the next general election, and is Ward v. Clark, 35 Kan. 315; Showalter not for the residue of the original term. v. Cox, 26 Kan. 120.

State v. Manning, 84 Mo. 661. The constitutional provision that no In California, it is held that justices person shall hold the office of judge of of the peace are judicial officers within any court after he attains seventy the meaning of the constitution, and years of age is held not to apply to a must be elected at the general election. justice of the peace. Keniston v. State, McGrew v, San Jose, 55Cal. 611; People 63 N. H. 37; s. C., 56 Am. Rep. 486; v, Ransom, 58 Čal. 558, 572. Compare People v. Carr, 100 N. Y. 236; s. c., 53 People v. Mann, 97 N. Y. 530. Am. Rep. 161; People v. Mann, 97 N. In Ohio, persons appointed to fill Y. 530; s. C., 49 Am. Rep. 556.

vacancies in elective offices hold until Under the New York constitution their successors are qualified. Such making the justice's term of office four successors must be elected at the first years, it is held, that the legislature can proper election held more than thirty extinguish a town organization, and days after vacancy occurs. thereby shorten the justice's term of ernor fills all vacancies. Rey. Stat. office. Gertum v. Supervisors etc., 109 Ohio, 99 II, 12. See also Borton v.


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vacancy may be filled by a special election, in some States, or at the next following general election in others. 1

XVII. FORFEITURE OF OFFICE—1. Drunkenness.In many of the States there are statutes making it an offence for a justice to be found intoxicated, and for the offence he forfeits his office.2

Buck, 8 Kan. 302; Odell v. Dodge, 16 by the governor to fill the vacancy, Kan. 446; Ward v. Clark, 35 Kan. 315. there may be an election at the next

In California, it is held that the law regular election in cities, or general relating to the election of justices in election in country, to select a justice to cities is a general and not a special or fill the unexpired term.

Odell 2. local law, and, therefore, is not in Dodge, 16 Kan. 446; Comp. Laws Kan. contravention of the constitution. Bi- (1885), ch. 110, § 14; i Rev. Stat. Mo. shop 1. Council etc. of Oakland, 58 (1879), ch. 44 § 2809. Cal. 572, 576. A justice of a city was 2. "If any public officer, whether elected justice of the town in which the State, city, town or township officer, city was situated, and was acting as shall be intoxicated while in the persuch town justice when his term of city formance of any official act or duty, or justice expired. Hcle, that he might shall become so intoxicated as to be continue as justice of the city until his incapacitated to perform any official act successor was elected and qualified, al- or duty at the time and in the manner rethough the city charter did not expressly quired of him in the discharge of the so provide. Platteville r'. Bell, 66 Wis. duties of his office, he shall be deemed 326.

guilty of a misdemeanor in office and Three persons were elected to the punished by imprisonment in the counoffices of justice of the peace at the ty jail not exceeding six months, or by April election, 1982. One qualified to a fine of not less than fifty dollars, or by succeed himself on April 15th, 1882; an- both such fine and imprisonment; and other failed to quality, and the incum- if there be no provision made by law bent of the third resigned and was for the removal from office of such offiappointed to fill the vacancy caused by cer by impeachment, the court shall failure of second one to qualify, and adjudge the defendant to have forfeited took possession of the books and papers his office, and declare the same vacant.” pertaining to the former office. Held, I Rev. Stat. Mo. (1879), ch. 24, § 1642. that when the remaining justice quali- In Illinois, for the first offence, the fine fied he became entitled to the office is $10, for the second offence the fine is books and papers pertaining to it for- $20, and for the third offence forfeiture merly held by the appointee. Morris v. of office. Rev. Stat. Ill. (1880), ch. 38, State, 94 Ind. 565.

$ 209. In K’ansas, if the justice "shali Where a person appointed by the in any public place within the State be trustees of a village, who had no in a state of intoxication produced by thority, to fill a vacancy as justice, and strong drink voluntarily taken,” or he qualifies, he is a de facto justice. "shall engage or participate in, or shall Laver z'. McGlachlin, 28 Wis. 364. A aid, or assist, or encourage other perjustice elected for one precinct cannot sons who are engaged in any kind of hold his office in another. Clements v. gambling.” etc., shall be adjudged to San Antonio, 31 Tex. 25.

have forfeited his office, which shall It is held, in Wisconsin, that a justice thereupon be declared vacant. Comp. elected in a village situated in two Laws Kan. (1885), ch. 31, §§ 282 j, 282 k. counties, may be given jurisdiction over "It has been held, in Georgia, that a both counties. Stark weather v. Saw- justice who is drunk while 'presiding in yer, 63 Wis. 297.

a justice's court in legal session is not 1. In Illinois, when a vacancy occurs therein guilty of ‘malpractice' in office in the office of a justice of the peace or or conduct unbecoming an upright constable, by death, resignation, re- magistrate, unless it be specially shown removal from the town or precinct, that some wrong or injury was done by or other cause, if the unexpired him in his official capacity in conseterm exceeds

one year,

his office quence of his being drunk." Murfree's shall be filled hy special election. Rev. Justice, Practice, 1015; citing Hawkins Stat. Ill. (1880), ch. 79, $ 3.

v. State, 54 Ga. 653. In Kansas, if an appointment is made In Alabama, by the constitution


2. Malfeasance in Office.—Malfeasance is “the unjust performance

. of some act which the party had no right, or which he had contracted not to do.” 1 And it is said that to constitute official misconduct there must be some evidence of mala fides in the transaction; but that “malice, corruption or evil intent may be inferred as presumptions of fact from the evidence. The officer is liable, even though he be an usurper, for misconduct in office wrongfully assumed.” 2 Extortion is unlawfully taking, by color of office, money or valuable thing not due, or more than is due, or before it is due.3

3. Conviction and Judgment for Felony.--Conviction and sentence for felony forfeits the office of justice of the peace.4

4. Accepting Another Office.--In many States, justices of the peace are forbidden to hold any other office the duties of which may conflict with that of justice; in some States the inconsistent offices are named in the statute, and the accepting by the justice of one of these offices is a forfeiture of his office as justice.5

Ala. 225

(1875), art. 7, § 3, the justice forfeits not necessary that there should be an his office for "wilful neglect of duty, express averment that in the one case corruption in office, habitual drunken- the officer was entitled by law to no ness, etc. See State v. Seawell, 64 fee, nor in the other what was the

amount of the legal fee to which he In Virginia, the justice may forfeit was entitled. It is sufficient that it be

. his office for drunk enness. Common- shown to the court that he took that wealth v. Mann, i Va. Cas. 308.

which by law he was not entitled to An indictment against a justice, as a take. The court is presumed to know private citizen for drunkenness, will in what cases he is entitled to no fee, not sustain a verdict of dismissal from and to what fees he is in proper cases office in Tennessee. Carpenter v. entitled, and the pleading need not State, 6 Baxt. (Tenn.) 535.

state what is within the judicial knowl1. Bouv. Law Dict., vol. 11 (11th edge of the court.” Murfree's Justice, ed.), p. 97.,

Practice, g 1014; citing State v. Maires, 2. American Criminal Law (Desty), 33 N. J. L. 142. But compare Cutter v. § 82. See also 2 Bishop's Criminal Law, State, 36 N. J. L. 125. $$ 971–977. And for malfeasance or In Alabama, it is lield that the constimisfeasance the justice may be removed tutional provision for the impeachment from office. Wilson 2. State, 38 Tex. of justices, and the statute "to provide 548; State v. Seawell, 64 Ala. 225; I for the impeachmert and removal from Code N. Car. (1883), § $26. See Wal- office,” create a new jurisdiction and lace v. Commonwealth, 2 Va. Cas. 130; provide the manner of its exercise, and American Criminal Law (Desty), s that mode must be followed or the pro84 a.

ceedings cannot be sustained. State v. 3. EXTORTION, vol. 7, p. 585.

Seawell, 64 Ala. 225. Under an indictment for extortion 4. Fugate's Case, 2 Leigh (Va.) 724. the justice may show that he received See comments on this case, 1 Bishop the money under a mistake as to his le- Crim. Law, $ 971, and in a note to the gal rights. Cutter 2. State, 36 N.J. L. section it is said: "For neither the peo125

ple nor the legislature could be preÎn Illinois, there is an express statute sumed to have intended that the bench against extortion. Rev. Stat. Ill. (1880), of justice should be contaminated by ch. 38, § 211.

the presence of a convicted and at“In an indictment against a justice tainted felon.” for extortion, it is necessary to allege 5. In Kansas, "No county attorney, that the accused took more than the clerk of the district court, or probate law allowed him, or that he took a fee judge,” can hold the office of justice. when the law allowed him none. It is Comp. Laws Kan. (1885), ch. 110, $ 4. 12 C. of L.-33


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