McDermont v. Dinnie

• Decision Date: 23 November 1896
• Court: North Dakota Supreme Court

69 N.W. 294

6 N.D. 278

F. H. MCDERMONT v. JOHN DINNIE, et al

Supreme Court of North Dakota

November 23, 1896

Appeal from District Court, Grand Forks County; Templeton, J.

Application by F. H. McDermont against John Dinnie, as mayor, and Frank A. Brown, as city auditor, of the City of Grand Forks, for a writ of mandamus. From a judgment for plaintiff, defendants appeal.

Reversed.

Order set aside, and order entered discharging the alternative writ and dismissing the proceeding.

Bangs & Fisk, for appellants.

The jurisdiction attempted to be conferred upon municipal courts cannot be conferred under the constitution. Sections 85, 113 Const. The powers of police magistrates are expressly conferred, defined and enumerated in the constitution and this jurisdiction cannot be wiped out or superceded by legislation. Platteville v. Bell, 28 N.W. 404; United States v. Hudson, 7 Cranch. 32; Marbury v. Madison, 1 Cranch. 137; Pomeroy Const. Law, 760; Cooley Const. Lim. 27, 100; Endlich on Interpretation, § § 151, 522; California v. S. P. Ry. Co., 157 U.S. 229. Where a constitutional provision is self executing and needs no legislation to give it full force and operation it controls in the matter and no legislative act can modify repeal or affect it. This principal has been applied in many cases to provisions creating courts and defining their powers. Peo. v. Bradley, 60 Ill. 370; Ex parte Snyder, 64 Mo. 58; Miller v. Wheeler, 33 Neb. 765, 51 N.W. 137; State v. Hall, 66 N.W. 642; Sevinsky v. Wagus, 76 Md. 335; Campbell v. Campbell, 22 Ill. 664.

Burke Corbet and Tracy R. Bangs, for respondent.

OPINION

BARTHOLOMEW, J.

Section 2209 of the Revised Codes reads as follows: "A municipal court is hereby established in each incorporated city of this state, having a population of five thousand inhabitants or over. Such municipal courts shall have in addition to the jurisdiction hereinafter conferred, exclusive jurisdiction of all violations of ordinances of the city in which it is established and from the time of its creation all the jurisdiction and the powers heretofore exercised by police magistrates in such cities shall cease. Such court shall be a court of record and have a clerk and a seal, and its jurisdiction shall be coextensive with the limits of the county in which such city is situated. In actions in which there are two or more defendants, if one defendant is served with process within the county, the other defendants may be served at any place within the state." Section 2210 reads: "Such court shall exercise such jurisdiction as is or may hereafter be conferred by law in civil and criminal actions upon county courts having increased jurisdiction, and in addition thereto it shall have and exercise the same jurisdiction as is now conferred upon police magistrates and justices of the peace." Section 2213 reads: "A judge of such court shall be elected by the qualified electors of such city at the general city election held in April, 1896, and thereafter at the general election for city officers in each even numbered year, and the person receiving the highest number of votes at such election, shall be declared duly elected." At the city election held in the City of Grand Forks, in Grand Forks County on April 6, 1896, the electors voted for judge of the municipal court of said city, and the plaintiff, McDermont, received a majority of the votes so cast. Subsequently, and within the time required by law, he took the oath of office, and tendered to the city council his bond as such judge, and thereafter at the end of each month he presented to the proper city officials the necessary vouchers for his salary as such judge. The city officials refused to draw any warrants for such salary, and this proceeding is brought to compel by mandamus the issuance of such warrants; the defendants being the mayor and auditor of said City of Grand Forks. The defendants answered, raising certain questions of fact as to the qualifications of the city, under the statute, to elect such judge, and also alleging the unconstitutionality of the statute creating the office. The matter was tried by the court, and plaintiff prevailed. The entire evidence and proceedings are brought to this court for review. We shall concern ourselves only with the constitutional questions raised.

Section 85 of our state constitution reads: "The judicial power of the State of North Dakota shall be vested in a Supreme Court, District Courts, county courts, justices of the peace and in such other courts as may be created by law for cities, incorporated towns and villages." Section 110 provides for the establishment of county courts, and § 111 prescribes the jurisdiction of such courts, and provides the manner in which such jurisdiction may be increased by a vote of the electors of the county, and declares that, when such jurisdiction is so increased, "then said county court shall have concurrent jurisdiction with the District Court in all civil actions where the amount in controversy does not exceed one thousand dollars, and in all criminal actions below the grade of felony, and in case it is decided by the voters of any county to so increase the jurisdiction of said county court the jurisdiction in case of misdemeanors arising under state laws which may have been conferred upon police magistrates shall cease." Section 112 provides for the election of justices of the peace, limits their numbers, prescribes their jurisdiction, and declares: "The legislative assembly shall have power to abolish the office of justice of the peace and confer that jurisdiction upon judges of county courts or elsewhere." Section 113 reads: "The legislative assembly shall provide by law for the election of police magistrates in cities, incorporated towns, and villages, who in addition to their jurisdiction of all cases arising under the ordinances of said cities, towns and villages, shall be ex-officio justices of the peace of the county in which said cities, towns and villages may be located. And the legislative assembly may confer upon said magistrates the jurisdiction to hear, try and determine all cases of misdemeanors, and the prosecutions therein shall be by information." It will be observed that police magistrates and their courts are provided for and established by the constitution. This being the case, the legislature is powerless to legislate the one or the other out of existence. This proposition is admitted in terms by the counsel for respondents, and, being elementary, no authorities need be cited. The term "police magistrate" or "police justice" has a definite and well-understood meaning. Allen, J., in Wenzler v. People, 58 N.Y. 516, thus defines it: "A police justice is a magistrate charged exclusively with the duties incident to the common-law office of a conservator or justice of the peace, and the prefix 'police' serves merely to distinguish them from justices having also civil jurisdiction." A police magistrate is an inferior judicial magistrate, whose jurisdiction in the absence of constitutional or statutory extensions, is confined to criminal cases arising under the ordinances and regulations of a municipality. Hence a court presided over by such magistrate was never a court of record, never had a seal, or was entitled to a clerk. It will be observed, also, that § 113 of the constitution confers absolutely upon police magistrates a certain jurisdiction, to-wit: jurisdiction of all cases arising under the ordinances of said cities, towns, and villages, and also the jurisdiction of county justices of...