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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. Sneed, 84 N. Car. 816. See farther BREACHES OF BOND, supra. "Where his duty is absolute, certain and imperative, contemplating merely the execution of a set task-in other words, is simply ministerial-he is liable in damages to anyone specially injured either by his omitting to perform the task, or by performing it negligently or unskill fully. On the other hand, where his or withheld according to his own judgpowers are discretionary, to be exerted ment as to what is necessary and proper, he cannot be held liable civilly for a neglect to exercise those powers, nor for the consequences of a lawful exercise of them, where no corruption or malice can be imputed, and he keeps within the scope of his authority." Shearman & Redfield on Neg. (1st ed.), § 156. See also Deering on Neg., §§ 228, 229, and cases cited. Truesdell v. Combs, 33 Ohio St. 186. See Bocock v. Cochran, 32 Hun (N. Y.) 521; Mangold v. Thorpe, 33 N. J. L. 134. Granting or refusing an appeal is a judicial act in New Hampshire. Jordon 7. Hanson, 49 N. H. 199. See further Clark v. Spicer, 6 Kan. 440. Compare Kelly v. Bemis, 4 Gray (Mass.) 83, as to liability of justice acting under a statute declared unconstitutional. Allowing a bill of exceptions is a judicial act. Whitzell v. Forgler, 30 Kan. 525. Taxing costs and rendering judgment therefor are judicial acts, and a justice is not liable to county attorney for refusing to tax as part of the costs in a misdemeanor case his fee. State v. Jackson, 68 Ind. 58; or for rendering a judgment for costs in a case wrongfully White v. Morse, 139 Mass. 162. เก Ohio, issuing an execution by the justice is held to be a ministerial act. Carpenter 7. Warner, 38 Ohio St. 416; Contra, Abrams v. Carlisle, 18 S. Car. 242. In Maryland, it is held if a justice acts maliciously, fraudulently and corruptly in discharging judicial duties, he is liable to the party injured, but not for errors or mistakes. Knell v. Briscoe, 49 Md. 414. But in Indiana, justices may be impeached for corrup

tion in office, but they are not civilly liable to a party. Kress v. State, 65 Ind. 106. Compare Kennedy v. Barnett, 64 Pa. St. 141. See Shearman & Redfield on Neg. (1st ed.), ch. 9 and notes; Deering on Neg., 228, 229. See further McClure . State, 37 Ark. 426. As to when the justice is not, but the plaintiff is, liable for wrongful attachment, see Connelly v. Woods, 31 Kan. 359; also Wright . Rouss, 18 Neb. 234. The justice is liable for erroneous judgment when he has no jurisdiction. Estopinal v. Peyroux, 37 La. An. 477. He is liable for imprisoning defendant without judgment. Lanpher . Dewell, 56 Iowa 153. Compare Anderson 7. Park, 57 Iowa 69. Entering judgment is ministerial, and justice is liable for entering judgment for defendant when it should have been for the plaintiff. Christopher v. Van Liew, 57 Barb. (N. Y.) 17.

1. "By a recent ruling in Georgia, that in that State a justice against whom an action for damages on account of a misdemeanor in office is contemplated, is entitled to a written notice one calendar month before the suing out of the process. And unless such notice be given the action cannot be maintained, and a declaration in which the due service of such a notice is not averred is fatally defective on demurrer." Murfree's Justice, Practice, § 1006; citing Collins . Granniss, 67 Ga. 716; Warthen v. May, 1 Ga. (Kelly) 602. And in Georgia the offence of malpractice can be prosecuted only by indictment. Hawkings v. State, 54 Ga. 653.

In Minnesota, no liability, civil or criminal, attache to justice for failure to pay over money until after demand, and it is necessary also to aver the demand. State v. Coon, 14 Minn. 456.

2. State . Seawell, 64 Ala. 225; Cutter v. State, 36 N. J. L. 125; Wilson v. State, 38 Tex. 548; State v. Maires, 33 N. J. L. 142. Compare Collins v. Granniss, 67 Ga. 716; Hawkins State, 54 Ga. 653; State v. Coon, 14 Minn. 456.

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tain number of justices elected and that they shall hold their offices for a certain number of years.1 And in some States the legislature may, by its enactments, provide for increasing or diminishing the number, as the necessity may require.2 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 much in the States; the usual term is two years or four years. Murfree's Justice, Practice, § 8. However, their terms vary from seven years in Maine to two years in California. Rev. Stat. Me. (1883), p. 48; 2 Codes Cal., § 10113.

2. Comp. Laws Kan. (1885), ch. 110, art. 8. "In case the number of justices of the peace in any township shall be decreased, the docket of any such justice, whose office may be vacated, shall be placed in the hands of some justice of the same township," who shall attend to the business. Comp. Laws Kan. (1885), ch. 110, art. 8, § 37; Borton v. Buck, 8 Kan. 302. And it is held in Missouri, that a justice in possession of the docket of his predecessor in office is presumed to be lawfully in possession of it, and that he has power to hear the cases upon it, Kronski v. Missouri etc. Co., 77 Mo. 362; 1 Rev. Stat. Mo. (1879), § 2803.

3. Comp. Laws Kan. (1885), ch. 110, § 5, provides that if there is a vacancy at the time of the annual township election, "such vacancy shall be filled at said election." See Rev. Stat. Ill. (1880), p. 654. See also I Rev. Stat. Mo. (1879), § 2809; State v. Manning, 84 Mo. 661.

4. Borton v. Buck, 8 Kan. 302.

While the expiration of the term for which a person was elected does not create a vacancy, yet it, by reason of the expiration of the term a justice ceases to act, and delivers his books to another justice, the justice to whom the books and papers of the former shall be delivered may proceed to try the cases, and a judgment rendered by the former may be duly certified to by the latter for docketing in the higher

court. Stamm v. Dixon, 49 Wis. 328.

In Kansas, where, by the division of a township, one of its justices is thrown into a different township, there is a vacancy in the original township which may be filled by appointment. Frazer v. Miller, 12 Kan. 459; Odell v. Dodge, 16 Kan. 446. See Wood v. Bartling, 16 Kan. 109. Examine carefully Jones v. Gridley, 20 Kan. 584.

"Justices of the peace shall hold their offices for two years, except when elected to fill a vacancy, and when so elected shall hold during the unexpired term. All township officers appointed to fill vacancies shall hold their office until the next regular township election." Comp. Laws Kan. (1885), ch. 110, §§ 14, 15. A was elected justice for two years and qualified, but during the first year he resigned. B was appointed to fill the vacancy more than thirty days prior to the first succeeding regular election, and at that election was elected justice. Held, that this election of B was only to fill the vacancy, and his term expired at the end of the term for which A was elected. Hale v. Evans, 12 Kan. 562. See also Rev. Stat. Ill. (1880), ch. 79, § 3; 1 Rev. Stat. Mo. (1879), § 2809; State v. Manning, 84 Mo. 661.

The election of a person as justice, and his refusal to qualify, will not create a vacancy in the office, where justices hold until their successors are elected and qualified, but the person filling the office + the time of the election will continue to hold the same. Borton v'. Buck, 8 Kan. 302. See generally Commonwealth v. Hanley, 9 Pa. St. 513; State v. Dilloway, 31 N. J. L. 42; Hendricks v. McLean, 18 Mo. 33; People v. Whitman, 10 Cal. 38; State v. 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 and qualifies for, and enters upon the discharge of the duties of, the office, and has full possession of the books, papers and docket pertaining to the office, and holds over after the expiration of his term of office, refuses, upon demand of his successor in office, to deliver the office or papers, and books, and docket, but retains charge and control of the same, and is generally recognized by the people of his township as a justice, held, that he is a de facto justice, and his acts are valid in so far as the public and third persons are concerned. Morton v. Lee, 28 Kan. 286; 2 Kent's Com. 295; Petersilea v. Stone, 119 Mass. 467; Hildreth v. McIntire, 1 J. J. Marsh. (Ky.) 206; s. c., 19 Am. Dec. 61 and note; Hamlin v. Kassafer, 15 Oreg. 456; People v. Stevens, 5 Hill (N. Y.) 630; Burton . Patton, 2 Jones L. (N. Car.) 124; People v. Sassovich, 29 Cal. 480. The legal remedy for the party out of office to obtain the same is by quo warranto. People v. Common Council, 77 N. Y. 503; s. c., 33 Am. Rep. 659; Boone's Code, Pleading, § 188. It is held, that where cities are authorized to elect justices, and the regular city election is held at a different time from the general election, justices are to be elected at the regular city, and not at the general, election. Ward v. Clark, 35 Kan. 315; Showalter v. Cox, 26 Kan. 120.

The constitutional provision that no person shall hold the office of judge of any court after he attains seventy years of age is held not to apply to a justice of the peace. Keniston v. State, 63 N. H. 37; s. c., 56 Am. Rep. 486; People v. Carr, 100 N. Y. 236; s. c., 53 Am. Rep. 161; People v. Mann, 97 Ñ. Y. 530; s. c., 49 Am. Rep. 556.

Under the New York constitution making the justice's term of office four years, it is held, that the legislature can extinguish a town organization, and thereby shorten the justice's term of office. Gertum v. Supervisors etc., 109

N. Y. 170. See generally Blood v. Mercelliott, 53 Pa. St. 391; Duncombe v. Prindle, 12 Iowa 1; Brandon v. State, 16 Ind. 197. The legislature has power to abolish or destroy a municipal township, and when it does so the township officers must go with it. In re Hihkle, 31 Kan. 712.

A justice may be removed from office for wilful neglect of duty, corruption in office, habitual drunkenness, "incompetency, or any offence involving moral turpitude while in office, or committed under color thereof, or connected therewith." Const. Ala. (1875), art. 7, § 8; State v. Seawell, 64 Ala. 225; Code N. Car. (1883), § 826; Wilson v. State, 38 Tex. 548. And also for gambling. Comp. Laws Kan. (1885), ch. 31, §§ 282 J, 282 K. In some States, however, he is entitled to notice before action civil or criminal can be had against him. State v. Coon, 14 Minn. 456; Warthen v. May, 1 Ga. 602; Collins v. Granniss, 67 Ga. 716.

IOII.

1. Murfree's Justice, Practice, §§ 1010, See Pittsburgh etc. R. Co. v. Fleming, 38 Ohio St. 480.

2. In Missouri, where a vacancy occurred in the office of justice, the county court, or, in the city of St. Louis, the mayor, is authorized to fill the vacancy by appointment, but the term of such appointment extends only until the next general election, and is not for the residue of the original term. State v. Manning, 84 Mo. 661.

In California, it is held that justices of the peace are judicial officers within the meaning of the constitution, and must be elected at the general election. McGrew v. San Jose, 55Cal. 611; People v. Ransom, 58 Cal. 558, 572. Compare People v. Mann, 97 N. Y. 530.

In Ohio, persons appointed to fill vacancies in elective offices hold until their successors are qualified. Such successors must be elected at the first proper election held more than thirty days after vacancy occurs. The governor fills all vacancies. Rev. Stat. Ohio, §§ 11, 12. See also Borton v.

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 Kan. 446; Ward v. Clark, 35 Kan. 315. In California, it is held that the law relating to the election of justices in cities is a general and not a special or local law, and, therefore, is not in contravention of the constitution. Bishop. Council etc. of Oakland, 58 Cal. 572, 576. A justice of a city was elected justice of the town in which the city was situated, and was acting as such town justice when his term of city justice expired. Held. that he might continue as justice of the city until his successor was elected and qualified, although the city charter did not expressly so provide. Platteville 7. Bell, 66 Wis. 326.

Three persons were elected to the offices of justice of the peace at the April election, 1882. One qualified to succeed himself on April 15th, 1882; another failed to qualify, and the incumbent of the third resigned and was appointed to fill the vacancy caused by failure of second one to qualify, and took possession of the books and papers pertaining to the former office. Held, that when the remaining justice qualified he became entitled to the office books and papers pertaining to it formerly held by the appointee. Morris v. State, 94 Ind. 565.

Where a person appointed by the trustees of a village, who had no authority, to fill a vacancy as justice, and he qualifies, he is a de facto justice. Laver v. McGlachlin, 28 Wis. 364. A justice elected for one precinct cannot hold his office in another. Clements v. San Antonio. 34 Tex. 25.

It is held, in Wisconsin, that a justice elected in a village situated in two counties, may be given jurisdiction over both counties. Starkweather v. Sawyer, 63 Wis. 297.

1. In Illinois, when a vacancy occurs in the office of a justice of the peace or constable, by death, resignation, reremoval from the town or precinct, or other cause, if the unexpired term exceeds one year, his his office shall be filled by special election. Rev. Stat. Ill. (1880), ch. 79, § 3.

In Kansas, if an appointment is made

by the governor to fill the vacancy, there may be an election at the next regular election in cities, or general election in country, to select a justice to fill the unexpired term. Odell 7. Dodge, 16 Kan. 446; Comp. Laws Kan. (1885), ch. 110, § 14; 1 Rev. Stat. Mo. (1879), ch. 44 § 2809.

2. "If any public officer, whether State, city, town or township officer, shall be intoxicated while in the performance of any official act or duty, or shall become so intoxicated as to be incapacitated to perform any official act or duty at the time and in the manner required of him in the discharge of the duties of his office, he shall be deemed guilty of a misdemeanor in office and punished by imprisonment in the county jail not exceeding six months, or by a fine of not less than fifty dollars, or by both such fine and imprisonment; and if there be no provision made by law for the removal from office of such officer by impeachment, the court shall adjudge the defendant to have forfeited his office, and declare the same vacant." 1 Rev. Stat. Mo. (1879), ch. 24, § 1642. In Illinois, for the first offence, the fine is $10, for the second offence the fine is $20, and for the third offence forfeiture of office. Rev. Stat. Ill. (1880), ch. 38, § 209. In Kansas, if the justice "shall in any public place within the State be in a state of intoxication produced by strong drink voluntarily taken," or "shall engage or participate in, or shall aid, or assist, or encourage other persons who are engaged in any kind of gambling." etc., shall be adjudged to have forfeited his office, which shall thereupon be declared vacant. Comp. Laws Kan. (1885), ch. 31, §§ 282 j, 282 k.

"It has been held, in Georgia, that a justice who is drunk while presiding in a justice's court in legal session is not therein guilty of 'malpractice' in office

conduct unbecoming an upright magistrate, unless it be specially shown that some wrong or injury was done by him in his official capacity in consequence of his being drunk." Murfree's Justice, Practice, § 1015; citing Hawkins v. State, 54 Ga. 653.

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." 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

(1875), art. 7, § 3, the justice forfeits his office for "wilful neglect of duty, corruption in office, habitual drunkenSee State v. Seawell, 64

ness,

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Ala. 225.

In Virginia, the justice may forfeit his office for drunkenness. Commonwealth v. Mann, I Va. Cas. 308.

not necessary that there should be an express averment that in the one case the officer was entitled by law to no fee, nor in the other what was the amount of the legal fee to which he was entitled. It is sufficient that it be shown to the court that he took that which by law he was not entitled to take. The court is presumed to know in what cases he is entitled to no fee, and to what fees he is in proper cases entitled, and the pleading need not state what is within the judicial knowl1. Bouv. Law Dict., vol. II (11th edge of the court." Murfree's Justice, ed.), p. 97.

An indictment against a justice, as a private citizen for drunkenness, will not sustain a verdict of dismissal from office in Tennessee. Carpenter State, 6 Baxt. (Tenn.) 535

v.

2. American Criminal Law (Desty), § 82. See also 2 Bishop's Criminal Law, §§ 971-977. And for malfeasance or misfeasance the justice may be removed from office. Wilson v. State, 38 Tex. 548; State v. Seawell, 64 Ala. 225; 1 Code N. Car. (1883), § 826. See Wallace v. Commonwealth, 2 Va. Cas. 130; American Criminal Law (Desty), 84 a.

3. EXTORTION, vol. 7, p. 585.

Under an indictment for extortion the justice may show that he received the money under a mistake as to his legal rights. Cutter v. State, 36 N. J. L. 125.

In Illinois, there is an express statute against extortion. Rev. Stat. Ill. (1880), ch. 38, § 211.

"In an indictment against a justice for extortion, it is necessary to allege that the accused took more than the law allowed him, or that he took a fee when the law allowed him none. It is

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Practice, § 1014; citing State v. Maires, 33 N. J. L. 142. But compare Cutter v. State, 36 N. J. L. 125.

In Alabama, it is held that the constitutional provision for the impeachment of justices, and the statute "to provide for the impeachmert and removal from office," create a new jurisdiction and provide the manner of its exercise, and that mode must be followed or the proceedings cannot be sustained. State v. Seawell, 64 Ala. 225.

4. Fugate's Case, 2 Leigh (Va.) 724. See comments on this case, I Bishop Crim. Law, § 971, and in a note to the section it is said: "For neither the people nor the legislature could be presumed to have intended 'that the bench of justice should be contaminated by the presence of a convicted and attainted felon." "

5. In Kansas, "No county attorney, clerk of the district court, or probate judge," can hold the office of justice. Comp. Laws Kan. (1885), ch. 110, § 4.

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