Atchison

• Citation: 14 P. 229,36 Kan. 593
• Court: United States State Supreme Court of Kansas
• Decision Date: 11 June 1887
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LEVI T. RICE

14 P. 229

36 Kan. 593

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LEVI T. RICE

Supreme Court of Kansas

June 11, 1887

Error from Shawnee Superior Court.

ACTION brought by Rice against The Railroad Company, to recover damages alleged to have resulted from an unwarranted criminal prosecution and imprisonment begun and carried on by the defendant against the plaintiff. Trial at the April Term 1885, and verdict and judgment for plaintiff for $ 3,000 damages, and for costs. The defendant brings the case here. The material facts appear in the opinion.

Judgment reversed and cause remanded.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

Waters & Chase, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

I. One of the principal questions urged by counsel for the plaintiff in error in this case, and one to which they have devoted ten pages of their brief, is whether the superior court of Shawnee county was, at the time of the trial of this case, or indeed at any time, a valid court. It is claimed that it never was a valid court, and this upon the ground that the act of the legislature creating it is unconstitutional and void; and it is claimed that such act is unconstitutional and void for the reason that the court was to continue in existence from March 13, 1885, up to the first Monday of April, 1887, without any provision being made for the selection of a judge of such court except by an appointment by the governor. (Laws of 1885, ch. 140.) We think that the act is constitutional, and that the court was valid; and in support of this opinion, we would refer to the reasoning in the case of Matthews v. Comm'rs of Shawnee Co., 34 Kan. 606, 9 P. 765, et seq., and the provisions of the constitution there cited.

II. The next question presented for our consideration, and one to which counsel for plaintiff in error have devoted thirteen pages of their brief, is, whether the court or magistrate before whom the proceedings out of which the cause of action in this case arose was a valid court or magistrate at the time and place when and where such proceedings were instituted. On this question, counsel for the respective parties occupy different positions from those which they occupied upon the other question. On this question, counsel for plaintiff in error, defendant below, claim that the action of the court or magistrate before whom such proceedings were instituted was at all times, in all places, and in all respects, legal and valid; while counsel for the plaintiff below claim that such court or magistrate had no power or jurisdiction whatever to act at the time and place when and where such action was had. This action was instituted for the recovery of damages alleged to have resulted from an unwarranted criminal prosecution and imprisonment instituted and carried on by the plaintiff in error, defendant below, against the defendant in error, plaintiff below. It appears that during the months of June and July, 1883, one L. C. Hartman was a justice of the peace of Dodge township, Ford county; that Hamilton county was attached to Ford county for judicial purposes; that the plaintiff below, Levi T. Rice, was then at Coolidge, in Hamilton county, in the employment of the defendant below, the railroad company; that on June 29, 1883, the defendant below, through its agents, procured the said justice of the peace to go to Coolidge, a distance of about 115 miles from his office, and there to entertain a complaint made by one of the company's agents against the plaintiff below and seven others, charging them with grand larceny, to administer the necessary oath, and to then and there issue his warrant for the arrest of said persons so charged; and that the plaintiff, along with the others, was so arrested, and taken to Dodge City, and there imprisoned in the county jail until July 2, 1883, when he was discharged.

The real question now presented is, whether a justice of the peace has jurisdiction outside of his own township, and 115 miles from his office, but in a county attached to his own county for judicial purposes, to entertain a criminal "complaint" made under § 36 of the criminal code, and then and there to "examine on oath the complainant and any witness produced by him," and if from the evidence given to the justice by such complainant and any other witness or witnesses so produced, it has been made to "appear that any such offense has been committed," to then and there as a "court or justice" "issue a warrant" "requiring the officer to whom it shall be directed, forthwith to take the person accused and bring him before some court or magistrate of the county, to be dealt with according to law; and in the same warrant" to "require the officer to summon such witnesses as shall be therein named to appear and give evidence on the examination."

About all that is necessary for the decision of this question is to refer to the following decisions made by this court, and to the following sections of the constitution and the statutes, to wit: Wilcox v. Johnson, 34 Kan. 655, 659, 9 P. 610; Phillips v. Thralls, 26 id. 780; Morrell v. Ingle, 23 id. 32; Comm'rs of Marion Co. v. Barker, 25 id. 258, 260. Section 36 of the criminal code above referred to reads as follows:

"SEC. 36. Upon complaint made to any such magistrate that a criminal offense had been committed, he shall examine on oath, the complainant and any witness produced by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed, the court or justice shall issue a warrant, naming or describing the offense charged to have been committed, and the county in which it was committed, and requiring the officer to whom it shall be directed forthwith to take the person accused and bring him before some court or magistrate of the county, to be dealt with according to law; and in the same warrant may require the officer to summon such witnesses as shall be therein named, to appear and give evidence on the examination."

Section 4, article 9 of the constitution in effect declares that justices of the peace are township officers.

Section 9, article 3 of the constitution provides for electing at least two justices of the peace in each township, and further provides that that number may be increased.

Section 11, article 3 of the constitution requires justices of the peace to reside in their respective townships during their terms of office.

Section 3 of the general township act makes the township the locality territorially which elects justices of the peace. (Comp. Laws of 1885, ch. 110, P 6421.)

Section 4 of that act requires that justices shall reside and hold their offices in the townships for which they shall have been elected, as the constitution does.

Sections 35, 36 and 37 of that act clearly show, by providing for more than two justices in a township, and by other provisions, that it was not intended that they should be perambulatory.

Section 1, chapter 140 of the Laws of 1877, reads as follows:

"SECTION 1. That any justice of the peace in any organized county to which any unorganized county is or may be attached for judicial purposes, and in which there shall be no justice of the peace, shall, in all criminal matters where a felony or misdemeanor is charged, have the same jurisdiction over such unorganized county, and of offenses committed therein, as in such organized county; and their processes may be served by the sheriff or any constable of such organized county, and the offender be brought for hearing, and witnesses compelled to attend before such justice, the same as in cases arising in such organized county." (Comp. Laws of 1885, ch. 83, § 1a.)

Section 2 of the general justices criminal act, declares that the offender must be brought before the justice for trial. (Comp. Laws of 1885, ch. 83, § 2.)

Sections 5 and 7 of that act use the expressions: appear before the justice, and attend before him.

Section 12 requires the jurors to appear before such justice; and it is the same way all through the civil code relating to justices.

In 1883 Hamilton county was an unorganized county, attached to Ford county for judicial purposes. (Laws of 1881, ch. 99, § 3.) And an unorganized county attached to another county for judicial purposes is in effect a township of such other county. (Laws of 1883, ch. 143, § 1.) And, as before stated, every township must have at least two justices of the peace, and may have more. (Const., art. 3, § 9; Gen. Township Act, § 4.)

We think it follows from the foregoing decisions and the sections of the constitution and statutes cited, that justices of the peace must perform all their official acts within their own townships, and that whenever they wander beyond the boundaries of their own townships, and into the jurisdiction of justices of the peace of other townships they cease to be justices of the peace, and any attempted official acts there performed are mere nullities. There are two sections of the statutes which tend to support the inference that justices of the peace may in some cases perform duties outside of their townships, but within their respective counties. These statutes are § 1 of the act relating to oaths, and § 7 of the act relating to criminal procedure. These statutes mention justices of the peace as "justices of the peace in their respective counties," and not as justices of the peace in their respective townships. We do not, however, think that the inference that might be drawn from these last-mentioned sections can overturn or destroy the unavoidable implications that must arise from the constitution and the other statute...