Weir v. Allen , 47 Iowa 482 ( 1877 )

Seevebs, J".

I. If the replevin proceedings were legal, and the liquors thereunder legally seized and taken from the constable, in whose possession they were by virtue of the criminal proceedings before the police justice, then it is possible, and it may be conceded, that plaintiffs are entitled to the aid of a court of equity, to restrain the defendants from proceeding with said criminal action, until the right of the plaintiffs to seize the liquors in the replevin suits was determined. That the proceedings before the police justice were in their nature criminal, was determined in The State v. Certain Intoxicating Liquors et al., 40 Iowa, 95.

Ordinarily, at least, the trial of a criminal action cannot be arrested by the commencement of a civil action, either at law or equity, but no determination of this question is made.

. „ „T1T 1. CRIMINAL on/quoraevin seized. II. If it be conceded the police justice had jurisdiction, and the information and all the proceedings were in strict accord with law, then, as we understand, the 7 7 7 liT101-8 m question were in the custody of the law, and they cannot be taken therefrom by virtue of the replevin proceedings. This was ruled in Funk & Hardman v. Israel, 5 Iowa, 438, and in The State v. Harris et al., 38 Iowa, 242.

__-intox- - uOTs^rlsdioti°n. III. It is insisted that as the city of Muscatine was incorporated by a' special charter, the police justice has no jurisdic-; ^on or power to hear and determine the causes commenced before him. The first position of counsel is that Sec. 1544 of the Code in substance provides that justices of the peace are the only officers who can try and determine informations charging the illegal sale of intoxicating liquors, or that the same are kept for sale. The section referred to in express terms without doubt confers the requisite power on justices of the peace. But it does not expressly or by implication declare that no other officer has the same power and jurisdiction. In other words, Sec. 1544 does not declare that justices of the peace have exclusive jurisdiction in such cases. The real question, then, is whether the power to hear and determine such questions has been conferred on police justices in cities acting under special charters. The negative of" this proposition is maintained by counsel for the appellants. It is conceded, as we undei’stand, that the requisite power and jurisdiction were confex*red on such police justices by chapter 12 of the laws of 1870. The second section of said chapter confers on police justices in cities acting under special charters all the powers and jurisdiction possessed by police justices under sections 1117, 1118, 1119 and 1120 of the Revision, in cities incorporated under the general incorporation law, and it is not disputed that police justices in the last named cities had, under the aforesaid sections of the Revision, the power and jurisdiction to hear and determine informations filed before them for violations. of the statute against the unlawful sale, or the keeping for sale, of intoxicating liquors. It is, however, insisted that the aforesaid sections of the Revision have been repealed or modified and changed by the Code, and that under section 47 of the latter the same must be regarded as no longer in force. The sections in the Code corresponding to the aforesaid sections of the Revision are 543, 544, 545 and 546. These sections are not literal trancripts of those in the Revision, but it is doubtful whether they are not substantially the same. It is unnecessary, however, to rest a determination of the question presented on such fact, if it be one. Chapter 12 of the laws of 1870 confers, as has been said, on police justices in cities acting under special charters “all the powers and jurisdiction,” * * * as are now provided in the aforesaid sections of the Revision. Thus, in legal contemplation, the sections of the Revision were made part and parcel of said chapter 12 of the laws of 1870. Being thus incorporated therein, their subsequent repeal, if such be the case, by the adoption of the Code, in no manner affects them as a part of said chapter, unless the latter has also been repealed or modified. There is not, nor can there be, any pretence this has been done. No such claim is made by counsel, but only that the repeal (if such be the case) of the aforesaid sections, of the Revision repeals or renders null and void the said chapter 12. Eor. the reasons stated, we are unable to concur in this position of counsel.

3 _.'_. information. IY. Section 1544 of the Code, under which the information was filed, provides that the same shall be made by any “ credible resident of the county.” By reason of the failure 0f (foe information to so state, it is insisted the police justice had no jurisdiction. In this view we do not concur, and it has been ruled in The State v. Thompson, 44 Iowa, 399, that such au objection is not á sufficient ground of demurrer, or to quash the information. It cannot, therefore, be a jurisdictional question. Having disposed of all matters suggested by counsel, the result is the ruling of the district judge must be

Affirmed.