The weekly miner. [volume] (Butte, Mont.) 1878-1881, 1880-01-13
THE RgIT"TE POLICE MAGISTRATE


In the matter Of the application of VIM. J.
Parks for L writ Of hdJe0s corpus.
The above case was decided in the Supreme
Count Wednesday, Wade, c. j., delivering
tie opinion Of the Court. We quote from the
opinion as follows: 'The prisoner comes
before this court Oh a writ Of hdbe0s corpus.
1t appears from the return of the writ that
the petitioner, VIM. j. Parks. is imprisoned in
the ia,l of Deer Lodge county, under commit
ment from the Police Court Of Butte, on Il
conviction for assault and battery, and that
the term of imprisonment has not yet eX-
PRED"
In this proceeding petitioner seeks TO attack
the validity of sections =, 20 and - of article
7, Of an ACT to incorporate the Town of
Butte. The salient points in them are, first
That the police magistrate shall be nominated
by the Mayor and by him appointed, by aud
with the advice of the city council. Second,
That the police magistrate shall have jurisdic-
ton in ali Eases of a violation of the city
ordinances, and in all civil and criminal pro-
ceedings shall have the same jurisdiction as
justices Of tile peace; and third, That the
police magistrate is reconstructed q justice Of
the peace"
The opinion proceeds: Are these sections
void because in conflict with section 1856 Of
the Revised Statutes Of The United States,
which provides that justices of the peace in
the several Territories shall be elected by the
people in such manner as the respective Leg
islatures may provide -"
l. "The Organic Act Of the Territory pro-
vides that the judicial power of the Territory
shall be vested in the Supreme Court. district
couIts, probate courts and in justices of the
peace, and that the jurisdiction of these sew
eral courts shall be as limited by law. +
1t was, therefore, competent for the LegiSla-
ture to establish a justice of the peace court
in and for the city of Butte, to define its juris-
diction, and under said section (1S56) to pro-
vide the manner in which the people should
elect a justice of the peace. BY the
act of incorporation the police magistrate,
who is made Il justice of the peace to every
intent and purpose, is nominated by the May
or and by him appointed, with the advice and
consent of the Council"
Tho opinion then proceeds to show that be-
fore the act incorporating the tow of Butte be-
came effective the people of the whole Territory
acted Upon it through their representatives in
the Legislature, and that it was also submit
ted to and approved by the qualified voters of
Butte that by the charter SO approved the
people declared that the Mayor and Council.
whom they were to elect, should, when elect
ed, name the police magistrate and justice OF
the peace. Thus this magistrate is created in
the manner the people describe" The Court
therefore holds that the selection of the mag
istlate by the Mayor and Council is "eQuiv-
alent to an election by the people and a sub
stantial compliance with the act of Congress-
The second and third subdivisions of the
opinion are to the effect that even though the
magistrate was not all officer de iure, yet tina
that having been appointed to the office by
"virtue of a public act of the Legislature, ir
full force" he thereby became an officer IL
factO, which being true. his judgments vii
be as unqucstionable III the collateral pro
ceeding by habeds corpus, as if he were
magistrate de .itre. " The application
for discharge is therefore denied and the pris
oner Observation-Disclosures
Il know I'm losing ground, sir" fearful.
: murmured the pale-tace freshman, " Butt it i
, not my fault, sir. If were to study on Sun
day, as the others do, | could keep up witt
;. my class, sir-indeed | could but l promise
. mother he never to work on the Sabbath
and | can't sir. ne-ne-ver" and his emotiol
:, ~overpowering him, he pulled out his handkel
g chief with such vigor that he brought on
with it a small flask, three faro chips and
e eucher deck, and some how or other the pre-
Il lessor took no more stock in that freshman