The weekly miner. [volume] (Butte, Mont.) 1878-1881, 1880-01-20
SUPREME COURT DECISION.
In the Supreme Court OF Montana Terri
tory, August Term, 1870.

In the Supreme Court OF Montana Terri.
tory, August Term, 1870.
In the matter of the application of VIM. j.
Parks for a writ of habeas corpus. Appeal
from Second District. Deer Lodge county.
OPINION OF THE COURT BY WADE, CHIEF
JUSTICE.
The prisoner comes before this court on a
writ OF hdbeds corpus. 1t appears from the
return to the writ that the petitioner, William
). Parks, is Imprisoned III the Jail of Deer
Lodge county, by the sheriff thereof, under a
commitment from the Police Court Of the
city OF Butte on a conviction for assault and
battery, and that the term of imprisonment
has not yet expired.
In this proceeding the petitioner seeks to
attack the validity of section 2 article ), and
sections 20 and %, article 7, of an Act to in
corporate the town of Butte 9th session
laws, PIP. so, Sc, 50 which sections are in the
words following:
SECTION 2. "The City Council shall have
power to appoint all officers except the Po-
lice Magistrate, City Attorney, City Assessor
and Marshal, who shall be nominated by the
Mayor, and by him appointed, by and with
the advice of the City Council, whose term
OF Office shall be for one year, subject to re-
moval as herein provided.'
SEC. 20. "The Police Magistrate shall
have jurisdiction IN all cases of violation of
the city ordinances, and shall have the same
jurisdiction in all civil and criminal proceed
lngs as is now, or shall hereafter be conferred
upon other justices of the peace of this Ter
ritory, and in all courts of this Territory, said
Police Magistrate shall be held to be and is
hereby constituted a justice of the peace"
SEC. %. The Police Magistrate shall be a
justice of the peace in said county, and he
shall have the exclusive jurisdiction of all
offences against the ordinances of said city.
Are these sections of the legislative enact
ment void, because in conflict with the Act
of Congress which provides that "justices of
the peace and all general officers of the
militia in the several Territories shall be
elected by the people in such manner as the
respective legislatures may provided"
Revised statutes U. S. sec. 1856 p. 1929.
l. The Organic Act of the Territory pro-
vldes that the judicial power of the Territory
shall be vested in a supreme court, district
courts, probate courts and in justices of the
peace. And it is further provided that the
jurisdiction of these several courts shall be
as limited by law.
The act does not limit or restrict the num-
WI VI JuoIltCo VI tIlC pcdC6 JlldL lilly UC HAL
in any township, city or village, and as their
jurisdiction depends upon the acts of the leg
lslature and is, as defined by such acts. it was
therefore competent for the legislature to
establish a justice OF the peace court within
and for the city Of Butte to define its iuris-
dictiOn, and under said section 1856, to pro-
vide the manner in which the people should
elect a justice Of the peace.
Is such election, provided for in section 2,
article 8 OF the incorporation Act, or do the
| provisions of such section so far conflict with
section 1886 as to become null and void?
By the Act of Incorporation the Police
Magistrate, who is made a justice of the peace
to every intent and purpose, is nominated by
the Mayor and by him appointed with the
advice and consent Of the City Council.
In order to measure the scope and effect of
this act of the mayor and council, and to
ascertain in fact who acts when q police
magistrate aud justice of the peace is thus
appointed or elected, it will be necessary to
see by what fundamentally they act, who
for, and by what authority.
The Act incorporating the town of Butte
is by its terms made a public Act and there
fore stands Ill an equality with any other
public act of the legislature. Before this Act
became a law, the people Of the whole Terri
tory acted upon it through their representa-
tives in the legislature. And before the Act
had any effect whatever upon the people of
the town of Butte, it was submitted directly
to the qualified voters thereof. who volunta-
rily approved of the same. and thereby awaited
themselves of all the privileges andtook upon
themselves all the burdens and disabilities il
imposed. The people Of the town made this
charter their own act, and therefore whatever
act the charter re luires to be performed.
when performed, thereby becomes the aci Of
the people. by the terms of the chatter TIT
people declared that the mayor and council,
whom they were to elect, should, when
elected, name the police magistrate and jus
tice Of the peace.
Ihus this magistrate is created in the man
ner the people directly prescribe. They adept
a charter and thereby become clothed Will
authority to elect mayor and council, Wiosi
duty they have declared to be to elect A mag
istratt ia tlle manner provided. Therefor" Il
must be held that the people adopted tili>
charter and elected Il mayoranl counciit' there
under for the express purpose OF causing Inc
election of q magistrate i'll The manner Pre-
vided by the charter. Thus the people iIr-
tate who shall be their magistrate. Tlcil
voice is heard twice in the matter. Once il
the adoption of the charter whereby they
create the office, and cnce in the election 6
the mayor and council whose duty they have
declared shall be to name the officer. iI,
Act of Congress c~Ontemnlatcs that the Irgis
lature shall dictate the manner in Whiclt the
people, (meaning the qualified voters) slai
elect this magistrate. The Incorporation
Act submits the question directly to tue Pc"
pie to say how such officer shall be created
and this we hold equivalent to all election b.
the people and a substantial compliance witt
the Act Of Congress.
,. Was this magistrate an officer de fd~ft
and if so, can the title by which he holds hi
office be e%nquired into in tins proceeding?
The general language of the authorities :
thai an officer dc JactO is one who holds al
office and exercises the duties thereof undt
color of right as by virtue OF an appointment
or election the color of title Distinguishing!
him on the one hand from a mere usurper o
a., off.o anI On tba othnr from an oficar H.