#### Stromburg *vs*Earick.

Error to the Jefferson Circuit.

Assumpsit.

*Case*131.

The appeal was to the Circuit demaúdedlnThe over£5 beins

A Justice of the impose Afines where he has no jurisdiction, receive and retain is liable6 tó the party paying as andreceived, to pártyUfined. 6

Peace rendering *579judgment for fines, to justify their act, must, when sued, *produce the record,*or show its loss by some inevitable casualty.

*578*Justices of the Peace. Jurisdiction. Fines and. forfeitures.*

*July*2.

Judge Marshall

delivered the opinion of the Court.

. This case commenced by warrant from a Justice of the Peace, in which Stromburg demanded from Earick $2Q as a debt due by account. The Justice having rendered judgment for the defendant, the plaintiff took the case by aPPea^ío the Circuit Court, which, according to decisions heretofore rendered, referring the jurisdiction on appeal to the sum demanded by the warrant, was the proper tribunal. ,

On the trial in the Circuit Court, it appeared that the warrant was brought for the rocovery of *‡10*which had been paid by the plaintiff to Earick, a Justice .of the Peace, in discharge of a fin.e inflicted or demanded by Earick, as for failing to exhibit a license as a pedler in the city of Louisville, and which Earick still retained ; and as there was no other pretext forreceiving or retaining the money, the question is whether the proceedings of Earick as shown in this case furnish a sufficient ground for so doin g. • ■

If instead of paying the money for the fine/the person or property of Stromburg had been taken by order or wr't ^rorn the Justice, and an action of trespass had been. brought therefor, against the Justice( he could only have ° . D justihed by-showing a conviction ol some offence over which he had jurisdiction. 'And so as we apprehend in. the present’ case, the Justice can maintain his- right to retain for the public, the money which undoubtedly belongs to the the plaintiff unless it has been legally taken from him, by showing a similar conviction. And this as we think has not been done. , '

*1.*In the first place there is no wriiten conviction,'nor any other memorandum in writing evidencing the judg*579mentor any part of the proceeding. And we are strongly inclined to the opinion, both on the ground of policy and of authority, that unless the want of such memorial be properly attributable to some inevitable casualty, which could hardly be the case, it should be deemed absolutely essential for establishing the justification in a proceeding against the Justice, *(See Philips on Evidence by Cowan & H.,*2 *part*1012, *et seq.*It is the general duty of Justices in this State to make a record or minute of their judgments; and we know of no authority for excepting judgments for fines or penalties, of which, as it is their duty to render an account to the public, it would seem to be peculiarly proper, that they, should make out and.preserve a regular memorial.

—But if the record is proven to have been *lost*it must be clearly proved that there was a conviction of an offence of which the Justice hadjurisdiction, to constitute a defence for the Justice.

-2. But waiving this point, and conceding that there may be a valid judgment for afine or penalty without writing, and that it may be proved orally and with the same effect as if a record were made of it, still it can be available as a defence to no greater extent than if it were in writing, and must be subjected to the same tests. The admission of parol testimony to establish the conviction itself, gives great advantage to the defendant, in the latitude of expression, and of inference which belongs to that sort of evidence. But it must at least be shown that the party was convicted, of an offence of which the Justice had jurisdiction. If the Justice had jurisdiction over the offence, and the accused was before him for trial, any mistake of judgment either upon the fact or the law, might be proper ground for quashing or reversing the conviction, but could not invalidate it in any collateral, proceeding.

In the present case, Earick himself was sworn, and detailed-on oath the nature and ground of the proceeding. From his statement as well as from the other testimony, it appears' clearly that Stroniburg, being said or supposed to be a pedler in the city-of Louisville, was fined by Earick for refusing to exhibit to Johnston, another Justice, his license to exercise the calling.of a pedlerin the city, when required to exhibit it by Johnston. This being the distinct ground of the conviction, and these, the only facts upon which Earick adjudicated, the enquiry is *580whether these facts constitute'an offence under any law which Earick was authorized to administer, or in other' words, whether they show a case in which he had juris-diction.-

fi’aVé-Justices'of cify of Louisville on^ pedlers Cfor their license, ford iefiis?ngheto thi^jurisdietSiv the-act of 1838,-was-it not tiansferred to thePoLoeCourt?"

But by the- By-fines may be^su-ed for before a Peace in- the' nameof t-heeity.

Assuming what is by no means certain upon the evidenee, that Earick- decided that Stromburg was a pedler, and conceding that as to that matter his-decision howev-er erroneous, is to- be taken as conclusive in- the present case; still the question is whether the refusal’ of Stromburg- to exhibit a1 license on the requisition' of a Justice, was an1 offence, and if it was, whether Earick- as a ■ Justice of the Peace, had jurisdiction to try and punish for it.

An- act of January 1814, (2 *Stat.*Laws, 1259,) denoun-ces a. fine'of ten-dollars against any pedler for failing or' tefusing to present his license upon- the requisition of a ^ust>ce-; But under this act the proceeding'and-fine must undoubtedly be in’the name'and behalf of the Commonwealth1.-' And by an act of-1838, the Police Court of Louisville is invested with -exclusive jurisdiction of all pleas of the Commonwealth-,-arising-within -the city .of , , T . , , . Louisville.- So that the Just-rce had'no jurrsdrction to.rn£¡ct penalty under the act of IB'14. . And we do- not perceive'that the case can be- brought unde.r any other le-gislative1 enactment with regard to pedlers.-

But by the 18th section of the - charter of Lou.isviile,(1828,).-penalties for the infraction-of tbé by laws of the-cBy, niay sued f°r the'name of the city and rebovr ,ered before any Justice of the Peace.- And if there wére *tixiy*vakd by-law of the -city -d'enounciñg- a penalty for' fapj¡.n.g.- to exhibit the license-to a-Justice ofthe Peace, EarioR might have had jurisdiction- over the offence; We do not, however,-find any by-law or ordinance ¿mongtheact's'of the city of Louisville, denouncing a penalty for -such failure, or making it an offence, nor is it alledged that there is any by-law-of that- character.

The ordinance relating to pedlers and hawkers, requires them to obtain license, for'which twenty dollars aire to be paid, and inflicts a-penalty of *$20*for pedling and hawking goods &c without license. The.same ordinance commands the City Inspector, Marshal and Watchmen to require of pedlers and hawkers the production of their *581license, to show by what authority they aré exercising their calling, and in case of refusal to- show the license when thus required, a penalty of ten dollars is inflicted.

It is-in the povver of the city officers alone to call on hawkers and pedlers for an exhibition of their license to-sell.

One Justice of the Peace has no authority to fine a pedler for failing to exhibit his license, to another Justice.

Waiving any consequence to be deduced from the fact that this ordinance does not apply to vendors of goods in stores, and that there is neither proof nor adjudication that Stromburg offered'.goods, upon any street, alley, wharf or lot, or part of a'lot in the city, but only a statement that he put his goods in a store and had sold some in. the city, and was stated to be a pedler; we think it obvious that the failure to exhibit a- license upon the requisition of a Justice of the Peace, is not an offence punishable by fine, within either the letter or the spirit of the ordinance. A Justice of the Peaee may as a Judge,pronounce the sentence of the law against any pedler or hawker who shall, in violation of this ordinance, either exercise his calling in the city without license, or refuse •to exhibit his license upon requisition by the proper offu cer.. The Justice has no other office to perform in the execution of this ordinance. But it is the duty of the' city officers named, whenever they see a hawker or pedu ler in the 'exercise of that calling, to enquire into his authority, in order that they may see that he is not violating the laws of the city; and it is hi's duty to satisfy them, and thus to terminate inquiry by'exhibiting his license if he have one.

The conviction in this case was not for hawking and pedling without lecense, nor for failing to exhibit a license to any one authorized to demand'd, but for failing to exhibit a license upon the requisition of a .Justice of the Peace. It might as well have beep for failing to exhibit it to -the Sheriff cf the county, or the Mayor of the city, or the Governor of the State. The conviction, therefore, does not purport io be of any offence denounced by- the ordinance; and if the subject of pedling within the city of Louisville and the power of granting license therefor, and denouncing penalties for pedling without license, be not withdrawn, from the operation of the general laws of the State, and subjected to the local legislation of the city, and if, therefore, the failure to exhibit a license for *582periling within the city of Louisville, upon the requisition of a Justice of the Peace, be a penal offence, it is an of-fence against the Commonwealth and not against the city, and a Justice of the Peace, though an officer of the Commonwealth, has no jurisdiction over it. We suppose, however, that this matter is placed entirely under the legislation of the city, subject to the general limitations placed upon its legislative faculties, and subject to be controlled and superseded by the action of the State Legislature directly upon it. This question need not be, and is not decided in this case. For if it be conceded, that the conviction is for an offence under the State laws, it is one over which the Justice had no jurisdiction ; and if the State laws do not apply, *the*conviction with the aid of all the evidence in the case, shows no offence nor any facts from which an offence for which the penalty could be inflicted, can bé implied. The charge and proof of a failure to exhibit a license upon the requisition of Justice Johnston, made no case whatever for the’ jurisdiction of Justice Earick, and gave him no jurisdiction to pronounce any judgment against the accused. The conviction pronouncing Stromburg guilty of such a charge, and fining him therefor, is therefore, wholly void, and affords no protection to the Justice who pronounced it.

*Green*for plaintiff; *Guthrie*for defendant.

In every view of the case, we are satisfied that the proceeding and judgment, if it ean be so called, against Stromburg,, furnishes no ground for receiving or withholding his money as a finé or forfeiture, either to the State or the city of Louisville, and no defence to this action for recovering it back from the Justice who had wrongfully and without authority,, condemned him to the payment of the fine and received it from him.

Wherefore, the judgment is reversed and the cause remanded for a,new trial. ' , .