Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1905-01-20
A LEGAL QUESTION.

We nave VtNH requested 10 give our
opinion as TO the contention Of an at
torney engaged IN the shockley case IN
reference TO the jurisdiction OF the city
courts in cases Of preliminary examn-
alton, The position that he takes Is, as
we understand It. that the Constitution
OF the state limits this authority, by a
provision in article 5. section q as fol-
lows:
Judges OF the Supreme court, dis
trict courts, and justices Of the peace
shall be consoryators OF the peace and
may hold preliminary examinations In
cases OF felony
And he further cites article I, section
20, which says.
THE provisions Of this Constitution
are mandatory and prOhibltory, un-
less by express words they are declared
to be otherwise"
on these grounds he argues that the
city courts have no constitutional pow
or to SIT az committing magistrates In
preliminary examinations for felony.
lie concludes that no other courts
than those mentioned may ex-
ercise that authority There are
great differences Of opinion among
lawyers on this subject az there
usually are on points Of law that APP
pear capable OF various interpretations
In ORDER TO get at Tho bottom Of this
subject, we viii have to cite the statute
establishing the city courts and also
some provisions OF the Constitution,
Section II OF Chapter l09 Laws OF
Utah Of 1901, provides that,
"The city court shall have exclusive
ORIGINAL Jurisdiction ~ cases arising
under, or bv reason Of the violation Of
any city ordinances and shall have the
game powers and Jurisdiction az ius-
tees OF the peace Ia an other criminal
actions. and the judges ~ said courts
shall be MAGISTRATES with all powers
and jurisdiction Of Justices OF the peace
az magistrates
Section Of Chapter 1875 Laws OF
Utah OF 1903 provides that,
"The code Of civil and criminal pro-
cedure relating to Justices courts shall
be the code Of procedure ~ said mu-
niclnal court excent as otherwise pro-
vided for in this act"
All this goes 10 show that the nten-
ton OF the Legislature I'm passing these
provisions was 10 endow tho city courts.
M they are called, with all the author
ity vested In those courts which are
known as Justices OF the peace. The
question may be raised had the Legis-
lature authority under the Constitution
TO do this? Section 1 OF Article 8 Of
that instrument says,
"The judicial power Of the state shall
be vested In the Senate. sIiine as
court ~ imnaachmont IN Supreme
court. I'm district courts IN justices OF
the ueaca and such other courts Infer
Tor 10 the Supreme court as may be
established by law"
This appears to give the Legislature
all the authority necessary IN the prem-
lses The city courts, so called, are In
reality by law made the same as JUS
tloes Of the peace clothed with oil the
authority vested I'm such courts II Is
further provided in the Constitution
that prosecutions which were former
ly required to be preceded by lndict-
ment by a grand jury, Shan be prose-
cuted by Information, after examlna-
tlon and commitment by a magistrate,
unless the examination be waived by
the accused" etc footnote to this
provision says; ANY court may hold
preliminary examination in case Of
felony. (Sec Section 10, Article 1, state
ConstItution)
It appears to us that Il would be a
very strained and narrow construction
Of the Constitution which would eX-
clude, as committing magistrates In
preliminary examinations for felony
courts endowed by statute with such
powers in common with other courts.
and which are necessary to give prop
en- scope TO their jurisdiction. Il IL evil
dent that city courts are intended TO be
Justices courts, administering I'm 'ty
ordinances as wen as the laws OF the
state, and therefore be az fully au-
thorj2cd 70 conduct preliminary exam
nations IN cases Of felony as are the
courts technically known as Justices
Of the peace.
No doubt the matter win be iudlcially
determined, and we win he very much
surprised II a different opinion to this
shall be rendered The effects Of a de-
cision that city courts are not COM
hitting magistrates I'm the full sense Of
the term. would be TO upset a great
many cases that have been decided and
ON which convictions have been had
and sentences are being suffered, This
may be OF minor consideration, but as
matter Of public policy would not
probably be ignored We must wait
and see,