Commonwealth v. Posson

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LATHROP, J.
• Citation: Commonwealth v. Posson, 182 Mass. 339, 65 N.E. 381 (Mass. 1902)
• Decision Date: 24 November 1902
• Parties: COMMONWEALTH v. POSSON.

182 Mass. 339

65 N.E. 381

COMMONWEALTH v. POSSON.

Supreme Judicial Court of Massachusetts, Berkshire.

November 24, 1902

COUNSEL

Mark E. Couch, for appellant.

John F Noxon, Dist. Atty., for the Commonwealth.

OPINION

LATHROP J.

The two questions which the defendant seeks to raise in this case are whether a complaint to a district court can be sworn to before a clerk pro tempore of that court, and whether, if it can be so sworn to, the clerk protempore can issue the warrant of the court, as was done in this case, or should issue his own warrant. Whether the latter question is fairly open to the defendant, we have some doubts, as the defendant could not do more in the superior court than renew the plea and motion made in the district court, and because, in the plea and motion, he not only did more than this, but did not have the record amended, and mistrepresented the fact that the complaint was made to the district court, and stated in his motion to dismiss in the superior court that the complaint was made to the clerk of the district court. As however, the attorney for the government has presented no argument on any technical ground, and has argued the questions stated in the beginning of this opinion, we proceed to consider them.

1. If the clerk pro tempore had authority to receive the complaint, he had authority to issue a warrant. St. 1893, c. 396, § 44, provides: 'Clerks of district and police courts, where the office of clerk is established by law, may receive complaints, administer to complainants the oath required thereto, and issue warrants, including search warrants, or summonses, returnable as required in case of such processes issued by said courts.' Section 6 of the same chapter provides: 'In case of the absence, death or removal of a clerk, the justice may appoint a clerk pro tempore, who shall have and exercise all the powers and perform all the duties of the clerk, and act until the clerk resumes his duties, or the vacancy is filled by appointment of the governor.' It seems to us plain that, construing the two sections together, a clerk pro tempore under section 6 has the powers given to clerks under section 44.

2. We see nothing in St. 1893, c. 396, which supports the defendant's contention that, where a clerk of a court issues a warrant under section 44, he is to issue his own warrant, returnable to the court. It is true that under other statutes this is the necessary inference. Thus St. 1877, c 211, § 1, which took away the power of a justice of the peace, not designated and commissioned as a trial justice, to try civil cases, or receive complaints, or issue warrants, contained the following proviso: 'Provided, however, that any justice of the peace who shall also be a clerk or assistant clerk of any municipal, district or police court, may receive complaints and...