#### The People ex rel. Moses Saloom, Relator, *v.*Edgar A. Whitney, Sheriff, Defendant.*

(County Court, Franklin County,

April, 1898.)

Villages — Exclusive jurisdiction, of a police justice as against a town justice of the peace — Power of the legislature.

A justice of the peace of the town of Malone has no power to hear, try or determine a charge for a criminal offense, committed in the village of Malone in said town, while there is a police justice present in said village who is given by its charter, (Laws of 1897, chap. 414, "" §§ 180, 182), exclusive jurisdiction over such' matters in said village. The legislature has power to create municipal corporations and pro*265vide them laws, and, to that end, may define the limits of such a corporation, may create the office of police justice, to be elected within such limits, and it may define the powers and duties of such justice.

The defendant was arrested for an alleged assault, committed upon the person of his wife within the corporate limits of Malone village. The warrant for his arrest was issued hy Justice of the Peace Martin elected as such for the town of Malone, before whom the relator was arraigned, tried, convicted and sentenced to pay a fine of $25, stand committed until paid, not exceeding twenty-five days. This matter comes before me upon the return of the sheriff to a writ of *habeas corpus*granted upon the petition of the relator.

R. M. Moore, for relator.

Frederick G. Paddock, district attorney, for defendant.

*

 Received too late for insertion in proper place.— [Reporter.

Beman, J.

The jurisdiction of justices of the peace in the several towns in this state extends over the entire territory of the towns in which they are respectively elected to such office, and such officials have criminal jurisdiction within such territory as is provided by law (Code of Orim. Proc., §§ 56, 62, 147 and 156), and may issue warrants for the arrest of any persons charged with the commission of any crime within the boundaries of their respective counties. The office of justice of the peace is created by the Constitution, article 6, section 17. The powers and duties conferred and devolving upon such justices of the peace are vested in them through legislative enactments, and the legislature has authority, without conflicting with the provisions of the Constitution, to limit, restrict or curtail such authority as is now vested in such justices of the peace, according to law.

The legislature has authority also to create municipal corporations, and to provide laws for their government. To that end it has authority to define their limits and to create the office of magistrate or police justice to be elected within such corporate limits, and to define their powers and duties. The legislature of the state of Mew York has created a municipal corporation known as Malone village, and a police court has been established, and a police justice elected therein under like authority. At the time of the issuing of the warrant for the arrest of the relator, his arraignment, trial and conviction before the magistrate, there existed a Police Court and an acting police justice within said corporate lim*266its of Malone village, having jurisdiction of the offense with which the relator was charged. By and under the authority of chapter 414, Laws 1897, sections 180 and 182, the police justice of said Malone village had exclusive jurisdiction to hear,- try and determine the complaint and charge *lpid*against the relator before the magistrate convicting him.

The warrant for the arrest of the relator when issued should have' been made returnable before such police justice, and the exercise of any authority or jurisdiction over the defendant or the proceedings' against him, beyond the issuing of such warrant, was contrary to the statute in such case, made and provided, and. above cited. Hence it may be clearly seen that the conviction, sentence and imprisonment of the relator'were contrary to sections 180 and 182 of the above-cited statute, and were without authority of.law.

After carefully reading such cases as have been cited by counsel upon the argument of this matter and especially the case of People ex rel. Burby v. Howland, reported in 17 App. Div. page 165, and recently affirmed by. the Court of Appeals (155 N. Y. 270), whole it is held that while the legislature has. not the authority to abolish' the office of justice of the peace in towns by direct legislation, still it holds that the legislature has authority to Emit ■ or alter the jurisdiction of such officer or abolish the town organization altogether. Matter of Gertum, etc., v. Supervisors of Kings County, 109 N. Y. 170. The decision of the ■ court in the above case arises from an entirely different condition of facts, and the propositions presented to the court in that case are not involved in this. That decision does not in any manner .question or impugn the constitutionality of chapter 414 of the Law's of 1897, as to the authority conferred' upon .a police justice acting' within the corporate limits of the village in winch he is elected, and limiting the jurisdiction and authority of justices of the peace in towns where like municipal corporations exist.

With these views,’ I am clearly of the opinion that a justice of the peace within the town of Malone has no authority to hear, try or determine a charge for. a criminal offense committed in the village of Malone, wrhen there is a police justice present in said village having the ability to act as such.

The writ should be sustained and the prisoher discharged. It is so ordered.

Ordered accordingly.