The weekly miner., 1879-08-19
THE STATUS OF OUR POLICE COURT.

For some time past references have been
M lie to doubts entertained respecting the
legality of any actt! undertaken by oGl
city Police Court as a Justice Court, do'bts
; which took practical form in the writ OF
Mabcax co1lu* applied for before Judge Gal
brallh last week in the case OF the Territory
rs Parks, which case was tried in our Police
Court under the Territorial statutes, Us al-
ready reported in the MINER The matter hav-
ing thus been brought openly before the puhlic
it may be interesting to explain why it is that
the validity ofour Police Courts action in the
premises has been doubted, yes. passed upon
negatively, by fully three-tourths of our law
yers us we'll as by almost the entire number
of laymen who have given the matter any at
tention. Briefly, then, the Police Court has
not been looked upon as a Justice Court be-
cause the Act of the extra session of our
Legislature, under which the Police Court
was organized, and under whose authority it
been regarded as in direct conflict will, the
Congressional enactnlents by which provision
is made for the election of Justices OF the
Peace In the Territories. For the full un-
derstandng Of the su1ject We reproduce the
sections, both OF the Revised Statutes of the
U. s. and Of the : Ac, to Incorporate the
Town of Bu:te,' which have any bearing ON
the matter 1t will be seen tl,a: the former
prescribe the manner in which Justices OF
the Peace must be elected in the Territories,
while the latter declares our Police Magistrate
to be 's constituted Il Justice of the Peace F" by
virtue of the Act then passed by our Terri
torial Legislature.
Section 1856 OF the Revised Statutes Of the
United States, to be found in the Provisions
common to all the Territories" prefxed to
the laws Of the eleventh regular session of
the Montana Legislature, reads as follows:
"Justicrs Of the Peace and all general Off
GERS Of the militia in the several Territories
shaN be elected by the people, in such manner
as the respective legislatures may provide by
law"
This looks plain enough; but Sec. 1857 of
StS oAhC otAtutCo S,OUo VII w Say
"All township, district and county officers,
except Justices Of the Peace and general off,
GERS Of the militia, shall be appointed or
elected in such MANNER AS may be provided
by the Governor and Legislative Assembly of
each Territory.''
Here We find Justices of the Peace specially
excepted in the statute declaring that certain
other officers may be appointed or elected,
the inference plainly being that the shall be
of the preceding section is to be Interpreted
as must be, Very frequently shall be" can
be Interpreted to mean "mav be-" hut the
clincLer afforded by the wording Of Section
1857 tenders 1t clear that Section 1856 is to
be interpreted to mean "Justices of the
Peace - must be elected by the people,
So much, then, for the Revised Statutes.
1t we turn now to our City Charter for the
manner in which our Police Magistrate is to
be elected, as we'll as for the authority under
which he assumes the functions Of IL Jlstict.
OF the Peace, we find, first in Sec. 2 Of Art. Y.
the manner in which the Police Magistrate is
to 0e appointed (elected is not the word used)
to office. This section is in these words
" The City Council shall have power to APP
point al! officers, except the Police Magistrate,
City Attorney, City Assessor and Marshal,
who shall be nominated by the Mayor, and
by him appointed, by aud with the advice Of
the City Council" Next, on Sec. 20 Of Art.
VII, We find the clause in virtue Of which
he is invested with The powers Of = Justice of
the Peace. 1t is worded as follows: "Thc
Police Magistrate shall have jurisdiction il.
all cases Of violation Of the city ordinances,
and shall hare the same jurisdiction IN all
ciril and criminal proceedings os is noe, or
shall hereafter be, conferred upon OTHER Jus
tices Of the Peace Of this Territory, and in
all courts OF this Territory said Police Mag
istls,,e Shall be held to bc and is hereby con-
stituted Justice Of the Peace"
Here Ne have the contiic: OF authority, il
conflict there be. The y. 5. statutes declare