Sacramento daily record-union., 1889-09-04
JUSTICE HENRY ALL RIGHT.
JUDGE ARMSTRONG DECIDES THAT HE
HOLDS OFFICE LEGALLY.
An Interesting and Comprehensive De
cision Determining an Impor-
tant Question.


son, recently convicted in the Superior
Court of robbing Thomas Davis, near the
American river bridge, a motion was made
by the defendants attorneys, ]. C. Tubbs
and W. A. Anderson, for arrest of judg-
ment on the ground that there had been no
legal holding ofthe defendant, he having had
his preliminary examination before W. A.
Henry. Township Justice of the Peace. The
points of the motion were fully stated in the
RECORD UNION at the time of its hearing.
The question involved is important, mas
much as its determination affects the valid
ity of the acts of one of the municipal tri-
bunals. After argument by the defendants
counsel, and by District Attorney Bruner
for the people. Judge Armstrong took the
matter under advisement. Yesterday he
rendered the following opinion:
Section of Article VI. of the Constitu-
| ton of California provides that 'the Legis-
| lature shall determine the number of
Justices OF the Peace to be elected in town.
ships, incorporated cities and towns, or
cities and counties, and shall fix by law
| the powers, duties and responsibilities of
justices of the Peace" Pursuant to that
provision of the Constitution, the Legisla-
ture. by an amendment to Section 103 of
| the Code of Civil Procedure, provided that
| there should be in each township of the
| various counties one Justice of the Peace,
| to be elected by the qualified electors of the
| township; and that in cities having 10000
and not more than 20 600 inhabitants there
should be one Justice of the Peace, and in
cities having 10000 and not more than
10G, 600 inhabitants two Justices of the
Peace, to be elected in like manner by the
electors of such cities, respectively.
The objection to the validity of the ex-
animation of the defendant in this case was
that Justice Henry, before whom examina-
| ton was had, had been appointed by the
Board of Supervisors as the successor to
Justice Brown, deceased. Brown had been
elected by the people as Township Justice
of the township of Sacramento. 1t is
claimed that inasmuch as there is no town
ship organization in the city OF Sacramento,
there could be no Township Justice of the
Peace. The power of the legislature, how
ever to provide for Justices of the Peace
does not depend upon the organization of
| township governments. The Legislature
has the power to authorize the eletion or
appointment of Justices of the Peace within
a district of county called a township,
ton or not 1t will be observed that the
Constitution does not make it a condition
precedent that there shall be an organized
township government to this exercise of
| the legislative function to create the office
of Justices of the Peace. The Court cannot
affect to be ignorant of the fact that though
this State has been in existence for more
| than a quarter of century, there never has
| been any systematic organization of town
ship governments; yet the power of the
Legislature to appoint Justices of the Peace
or to provide for their election within a
particular district has never been ques-
| toned. 1t is now too late to question that
power.
am of the opinion that Justice Henry
is Justice de jlTe; but if not, he is JUS
tice de fdctO and, so far as these proceed
ings are concerned, his acts are as valid as
if he were q Justice de jure. Our Supreme
Court has broken down the barrier which
seemed to mark the partition between acts
of ajudicial officer de tdcto and those of a
ministerial officer. 1t will be conceded
| that in England, from whence we derive
Our system of jurisprudence, judges and
| other judicial officers received a commits
| sion for particular term and for none
other. Therefore it was that in that coun-
try, under those laws, there could be no
such thing as Judge de .facto, because,
when the time had expired for which he
had his commission to hold a term of
Court, upon the face of his commission he
| had no other functions to perform. But in
this country, where judicial officers are
elected for prescribed terms of office, the
same as ministerial officers, the reason for
the distinction ceases. The old maxim is
that where the reason ceases the law also
ceases. In the case of the People against
oil fhn
whether a County Judge acting de fdcto
with the Associated Justices who were
elected constituted Court of Sessions.
That case arose on an appeal from a con-
viction for manslaughter. The Court there
said: There is nothing in the point that
the Court of Sessions in which tn indict-
ment was found was not legally organized.
The Convention at which the Associate
Justices were elected was presided over by
a person who was then acting as County
Judge, and the fact that it was afterward
determined that another person had been
legally elected to that Office did not render
his official acts illegal and invalid"
Under the then existing statute which
created the Court of Sessions that Court
was constituted of the County Judge and
two Associate Justices. The Associates
were elected by the Justices of the Peace of
the county, and the Convention was as
sembled by the County Judge 1t was
there held that the act of the County Judge
in presiding at the Convention of Justices
was de fdctO valid.
But the question was more directly pre-
sented in another case, where the convic.
ton was of murder in the first degree. and
the defendant, as in the case at bar, moved
in arrest of judgment. The second point
in that case is the only one that is material
here to be considered. 1t was that, sd-
mittiDg the act in question to be constilu-
tional, so far as the creation of the Fifteenth
Judicial District is concerned, the Governor
had no power, under the Constitution, to
appoint and commission a Judge of the
Court thereby created, as required and di-
rected by the sixth section of said Act"
1t was decided in the first volume of the
California Reports that the Governor haC
no authority to appoint Judge to an Office
created by the Legslature-that is, to make
an appointment for the first term; but
that he could only appoint to fill vacancies
which might occur after the office had
been filled by election. That doctrine was
affirmed in several cases. lastly in the
eighth California.
Mr.. Anderson--"Is that the rule now p"
The Court-"That is the rule now
MIR. Anderson-"How was it in the iu-
stances where the Governor appointed
Judges OF the superior Court in the lower
counties of this State where new Courts
were created by the Legislature
The Court-"The Governor had no au.
thority to make these appointments.
decided that principle in the Freeman
case"
Mr.. Anderson-"Then the act of the Gov
ernor in making those appointments was
void ~
The Court-"I have no doubt about it.
But the acts of those Judges de facto are
, valid, and that principle has been decided.
In the case to which l now refer the Court
said That the second point cannot be
sustained in this action does not admit of
debate. The person who filled the office of
Judge at the time this was tried was ap-
pointed and commissioned by the Governor
under and in pursuance of the provisions
| of the Act in question. He entered, there
fore, under color of right and title 10 the
! office, and become Judge de racto if not de
jtre, and his title to the office cannot be
questioned in this collateral mode The
People vs. White, "A Wend $50; McIns.ry
VS.. Tanner, 8 Jonn 1873; Hildreth's heirs
VS.. Mclntire's deyisee, l ]. j. Marshall,
206) His title can only be questioned in
an action brought directly for that purpose,
as rarDxyideS in ha 6Ftb or