The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1895-11-12
ONE MORE DECISION
Relating to the Jurisdiction of Police
Magistrates.
BY JUDGE GEORGE MlLBURN
The Law Reviewed In an Able Pa
per by the Court of the Sew
enth judicial District
of Montana.

Special Correspondence OF the Stanoafo.
Billings Nov. 9.-An important de-
cision. the first since the coming into
effect of the codes. has been made by
Hon. George r. Mirburn, judge of the
Seventh judicial district. in relation TO
the Jurisdiction of police magistrates
in OWL matters not arising under city
ordinances. The old law gave them
1.-THE same jurisdiction conferred by
law upon justices Of the peace but
in Judge MiIburns opinion a police
magistrate has no power whatever I'M
der the codes, 10 try any civil cause
not arising under the ordinances of the
city of which he may be the police
magistrate.
The question came up in a civil cause
wherein #. B. Connolly sued Fred
West before Alexander Fraser, police
magistrate OF this city. on which 1udg-
ment for plaintiff was given. West
petitioned the district court for "a writ
of review, which was granted.
In the following opinion Judge Mn
burn reviews the law applica bic TO the
case:
The contention OF the petitioner is
that the respondent. who was ait the
time of the rendering Of the judgment
in the aforesaid suit of Connolly vs..
West, lin which suit judgment was rem
dered for the plaintiff by the said po-
lice magistrate claiming to act as
Justice of THE peace in the trial of said
civil cause exceeded his Jurisdiction,
in that, as the petitioner claims. he
had not then any authority under the
laws Of the state of Montana, ito act
in the trial OF civil causes not arising
out of or under the ordinances of the
city of which he was police magistrate.
Both the petitioner and the respondent,
in the argument of counsel. relied upon
subdivision five. OF section 49l1 of the
political code of this state. which went
into effect on the first day OF July,
1895. The whole of section 4911, is as
follows:
SEC. 4911. The police court has con-
current jurisdiction with the justice or
the peace of the following public Of
lenses comm5uted within the county:
/. Petit larceny.
2. Assault and battery. NOT charged
to have been committed upon public
officer in the discharge of his official
duty, or with intent to kill.
3. Breaches of the peace, riots, at
trays, committing wilfull injury 10
property and all misldemeanors punish
able by fine not exceeding five hun
dred dollars, or by Imprisonment not
exceeding six months. or by both such
fine and imprisonment; and,
4. Or proceedings respecting va
grants. lewd or disorderly persons
8. The police Judge shall have the
same Jurisdiction as Is now conferred
by law upon THE justices of the peace
In addition to the jurisdiction herein
conferred.
Such offenses must be prosecuted in
the name of the state of Montana"
1t Dis conceded that this Is the only
section of the code or codes of the
state of Montana possibly setting out
the Jurisdiction of the police court or
OF a police Judge in respect of civil
matters arising under the laws of the
state Of Montana or expressly grant
ing to the police court or police justice
any of the powers of a justice of the
peace. OF course 1t is admitted that
courts OF limited jurisdiction, created,
as they are On this state. can exercise
only the powers which are expressly
and clearly set out in the constitution
or statute.
The petitioner contends that section
4911. aforesaid. pertains in Its entirety
and In each paragraph to criminal
cases and matters arising under the
laws of the state of Montana and tri-
able by such police court or to be
heard by said police Judge; such mat
ters to be prosecuted in the name Of
the state OF Montana. The respondent
on the other hand. claims. among 9TH
er things. that said subdivision five,
referring to the jurisdiction of the po-
lice judge, confers upon the said police
Judge concurrent jurisdiction with a
Justice of the peace ITO try civil actions
under the laws of the state of Mon
tana.
To attempt to maintain the position
OF respondent involves difficulty but
the contention of the petitioner in this
matter as to the construction of sec
ton 49l1 does not involve any particu-
lar inconsistency; the only difficulty
with his position being that It would
require the court. II is held with the
petitioner, to charge the legislatu
with having used inartistic language.
whereas. to hold with the respondent
in his construction of the section and
subdivision. would require the court to
hold that subdivision five should be
taken bodily OUT Of said section 49ll
and carried off and transplanted into
some other part OF these codes. for
that section 49ll begins with Public
Offenses" and ends with Public Of
lenses" TO be prosecuted in the name
OF the state Of Montana. and If we hold
that the police Judge Is to be distin-
gulshed from the police court and that
the Invention of the legislature. by the
act approved at $40 D. m. March Is.
1895. (entf1ed. An act TO amend Sec
lions 1910. 1885. 1886. 3342. 33i3. 33i9, 1857.
1858. 1860. 1861. 1862. 1868. $3.50. subdIvis-
ion so of section 1890. sections 1882.
3425. 342S. 1920. 1863. 3i72. and to repeal
sections 1865. 3403. Of the political code
and TO repeal sections ]. 2. 3, 4. s, 6, z,
8. 3. 10. IL. ~. Is. IL. Is. l6 II, IS. 10, 20,
81 and % OF an act TO amend chapter
D. fifth division of the compiled STAT
utes OF Montana relating to municipal
corporations and amendments dhereto
approved Sept. is. 1887. also amend
menss thereto approved March Il, 1889
approved March z. 1898. was TO add 20
the powers of the police court sitting
as a justice court. those powers which
a justice Of the peace has TO examine
into alleged commission Of felony. Gas
commit cing magistrate.) or TO bind
persons over TO prevent q breach ot
the peace. we will then find that said
section 1911 Is consistent throughout