State ex rel. Rice v. Simmons

Ellison, J.

The statute quoted provides for two justices of the peace in each township of the state, and its evident meaning and purpose is to provide for an additional justice in such townships as contain an incorporated town or city of more than two thousand inhabitants, or which contains a town or city of more than one hundred inhabitants, having a medical spring within the boundaries, or within five hundred yards thereof. The required population of the town of the first instance, and the existence of a medical spring in the second, is sufficient to authorize the appointment of an additional justice. That portion of the section relating to medical springs is an amendment, and the cause of the amendment was probably the recognition by the legislature that a town containing a medical spring, though of less inhabitants than two thousand, would likely have a transient population sufficient to call for an additional officer.

The point is made that Sarcoxie is organized as a city of the fourth class, and that it is, therefore, not included within the word “town,” as used by the statute. It is true that the statutes of this state in classifying cities, towns and villages, distinguishes them by class. Revised statutes, 1879, page 868; but, notwithstanding this, we are not of the opinion that the words of the section under consideration were used with reference to such distinction.

We find the case of Van Riper v. Parsons, 40 New J. L. 1, so fully and satisfactorily covering this point, that we transcribe the language of the court in that case. The contention in that case was that the word, “towns,” as used in the constitution, did not embrace cities. The court said: “ But this argument is founded on the false basis of looking only at the letter of the law, and turning away from its spirit. It is true that if the letter of the law is absolutely unambiguous and definite and were susceptible of but a single meaning, the clause would have to be read in such sense, no matter to what futility it might lead. But such is not the. case ; the word “town,” has no such fixed signification as this, for though in its narrower sense it denotes something other than a city, in its broader scope it comprehends such a municipality. Mr. Tomlyn, in his law dictionary, under the title, “Town,” says: “Under the name of a town or village, boroughs, and, it is said cities are contained, for every borough or city is a town.” Lord Coke, in 1 Inst., 116, showing the capaciousness of the term, has this language: “And it appeareth by Littleton, that a town is a genus, and a borough is the species.” Bouvier’s definition of the word “city” is, “ a town incorporated by that name.” These authorities suffice to show that the term in question is sufficiently classic to take in, when put to some of its uses, the institution denoted by the term “ city.” Nor is the force of this consideration countervailed by the fact that some of the local governments in this state are incorporated under the designation of towns, and that others by the same means, are denominated cities.” Pell v. Newark, Ib. 550; Anderson v. City of Trenton, 42 N. J. L. 487; State v. Goldstucker, 40 Wis. 124.

II. We are furthermore of the opinion that the circuit court should not have entered upon an inquiry as to whether there was a medical spring within five hundred yards of the town of Sarcoxie. The statute has designated the county court as the tribunal in which such matter is to be determined ; its action in that respect is judicial and cannot be disturbed, where its record discloses that it has determined, in a legal manner, the matters committed to its jurisdiction. The effect of the action of the circuit court below is, that it has heard the testimony and tried, de novo, the matters determined by the county court, and which the latter court, under the statute, alone has power to determine ; such determination, too, being final. State ex rel. v. Goodwin, 5 S. W. Rep. (Texas) 678; State ex rel. v. Weatherby, 45 Mo. 17; State ex rel. v. Lingo, 26 Mo. 496; Scott v. Crews, 72 Mo. 261.

The record disclosing that the proceedings in the county court were regularly, had, resulting in the appointment of the defendant to the office of justice of the peace, the judgment will,

with the concurrence of the other judges,

be reversed.