State v. Bartlett , 35 Wis. 287 ( 1874 )

LyoN, J.

It is stated in the affidavit or petition on which the writ of certiorari was allowed, that the learned circuit judge discharged the defendant in error from the custody of the sheriff on the ground that the -warrant of the mayor conferred no authority or jurisdiction upon Patten to perform the duties of police justice.

A similar question arose in Owens v. The State, 27 Wis., 456. The charter of the city of Mineral Point vests in a municipal court “exclusive jurisdiction of all criminal causes and matters of which a justice of the peace has jurisdiction, when the cause shall originate within the limits of the city,” and provides for the election of a judge of such court. It also provides, “that any justice of the peace in said city shall have jurisdiction of the causes last aforesaid, in case of absence, sickness or other inability of said municipal judge, or in case of a vacancy in such office, until the same shall be filled.” The law was held valid, and, in the absence of the municipal judge, the jurisdiction of a justice of the peace over an action for an assault and battery was sustained. The difference in the two cases is, that in Mineral Point, in the absence of the municipal judge, thé jurisdiction of all of the justices of the peace over such prosecutions is restored, while in Hudson, the jurisdiction of only one of the justices, to wit, the one designated by the mayor, is restored by reason of the absence or other disability of the regularly elected police j ustice. It seems to us that the cases are alike in principle. Hence we conclude that Patten was lawfully acting as police justice when the defendant in error was convicted before him, and when the commitment was issued.

It may be here observed that, nothing appearing to the contrary, we must presume in favor of the jurisdiction of the police justice, that Patten was a duly elected and qualified justice of the peace of the city of Hudson; that there was legal and sufficient cause for the action of the mayor; that the warrant of appointment was in due form; and that such appointment was confirmed by proper authority, if confirmation thereof was essential to its validity.

The fact that Patten was a duly elected justice of the peace of Hudson, and of St. Croix county, is not without significance. But for the exclusive jurisdiction conferred by the charter of that city upon the police justice, Patten would have had jurisdiction of the case under the general laws of the state. The charter provisions which authorize the mayor, in certain contingencies, to designate a justice of the peace to act as police justice, would seem, therefore, to be only a method chosen by the legislature to remove from one of the justices of the city the charter restrictions, and to restore to him the jurisdiction which, but for the charter, he would have under the general laws of the state, by virtue of his election and qualification as a justice of the peace. We perceive no valid constitutional objection to a law which permits the restriction to be removed and jurisdiction restored or conferred in that manner.

But were it conceded that the law under which the mayor acted in designating Patten as the police justice, is invalid, the cases of State v. Bloom, 17 Wis., 521, and Laver v. McGlachlin, 28 id., 364, are decisive of the propositions that he was the police justice de facto, and that, as the result thereof, his right to exercise the office cannot be determined in a collateral proceeding.

A few remarks will suffice in respect to that provision of the charter which purports to take away the right of appeal where, as in this case, the fine imposed is less than twenty-five dollars. That provision relates only to those assaults, batteries and affrays which are not indictable. Our understanding of the law as it now stands, is, that all assaults, batteries and affrays are indictable. If we are correct in this view, there are no criminal actions upon -which the law can operate, and it is a nullity. But were the words “ not indictable ” omitted from the provision, there would still remain an insuperable objection to the validity thereof. It enacts that prosecutions (doubtless meaning criminal prosecutions) for assaults, batteries and affrays, shall be commenced' in the name of the city of Hudson, whereas the constitution (art. VII, sec. 17) ordains that all criminal prosecutions shall be carried on in the name and by the authority of the state of Wisconsin.

Aside from the foregoing objections, it is quite probable that the provision (were there any criminal cases to which it is applicable) would be liable to the same objections as was the statute under consideration in Durkee v. Janesville, 28 Wis., 464. But it is unnecessary to spend more time on the subject. We find nothing in the charter which invalidates the conviction of the defendant in error, or the commitment under which he was held in custody by the sheriff.

It follows from the above views that the circuit judge erred in discharging the defendant in error from custody. The order for such discharge must therefore be reversed, set aside and vacated.

By the Court.— It is so ordered.