People v. Curley

• Decision Date: 01 December 1880
• Parties: THE PEOPLE EX. REL. C. C. HOWELL v. CURLEY.
• Court: Colorado Supreme Court

5 Colo. 412

THE PEOPLE EX. REL. C. C. HOWELL v. CURLEY.

Supreme Court of Colorado

December, 1880

Mr THOMAS GEORGE, for relator.

Mr. C S. THOMAS, for respondent.

STONE J.

This is an original proceeding by quo warranto, to determine the authority of the defendant to exercise the office and functions of a court or magistrate under the title of police judge of the city of Leadville. The complaint alleges in substance that the defendant usurps the office and franchise of police judge of the city of Leadville; that as such assumed judicial officer he causes arrests to be made under warrants issued by him; that he imposes fines and costs, and commits to prison in case of non-payment; that he declares his purpose to continue such acts; that he is wholly without right to exercise such power; that he claims power for such exercise from the city council of Leadville; that said city of Leadville has never been organized according to law; that such city council has no legal existence and no power to appoint a police judge; that there is no law of the State or ordinance of that city providing for a police court, or any system of procedure or practice for such court.

The answer denies all usurpation, and avers a right in the defendant to hold and exercise the office; that he was duly elected police judge by the city council; that he qualified according to law, and still lawfully holds and exercises the office; that if the city of Leadville was not duly organized pursuant to law, it is now too late to raise that question.

Upon the hearing it was stipulated by counsel for the relator and the defendant respectively, that the city of Leadville has since its organization, exercised, and still exercises the rights and powers of a municipal corporation, and has had, and still has in office a board of municipal officers exercising the duties of their respective offices, and that the legality of the organization of the municipality has not been legally denied or questioned for more than one year since such organization.

The stipulation, under section 2743 of the General Laws of the State, disposes of the question involving the legality of the formation and organization of the city as a municipal corporation.

The essential question is, has the defendant lawful authority to exercise the functions of a judicial officer, to hold a court, entertain jurisdiction of offenses, issue process, try accused persons, impose penalties and inflict punishment? If he possesses such authority, whence is it derived?

The provisions of law directly affecting this question are these:

I. Constitution, Art. VI, Section I. The judicial power of the State shall be vested in a Supreme Court, District Courts, County Courts, justices of the peace, and such other courts as may be created by law for cities and incorporated towns.

Section 26. The General Assembly shall have power to provide for creating police magistrates for cities and towns, who shall have jurisdiction of all cases arising under the ordinances of such cities and towns.

These two sections embrace all the direct declarations of the Constitution on the subject.

II. The General Laws, Chap. C. Section 2658. Appeals shall be allowed from the judgment of any justice of the peace, or mayor, or police magistrate, to the county court, in cases arising under this act, or the ordinances of any city or town, as in other cases.

Section 2661. Any and all justices of the peace and police magistrates shall have jurisdiction in all cases arising under the provisions of this act, or any ordinance passed in pursuance thereof, or the city council may designate one justice of the peace who shall have such jurisdiction exclusively.

Section 2720. In cities of the second class, the city council may elect a solicitor and a police judge.

The following provisions have an indirect bearing on the question:

Constitution, Art. V, Section 25. The General Assembly shall not pass local or special laws regulating the practice of courts of justice, the jurisdiction and the duties of justices of the peace, police magistrates or constables.

Constitution, Art. VI, Section 28. All laws relating to courts shall be general and of uniform operation throughout the State, and the organization, jurisdiction, powers, proceedings and practice of all the courts of the same class or grade shall be uniform.

Section 2714 of the General Laws, provides, inter alia, that in cities (of the first class) 'The city council may elect a city attorney or solicitor, a marshal, a police judge and a city engineer. Each of said officers shall have such powers and perform such duties as are prescribed in this act, or by general laws, or by ordinance of the city not inconsistent herewith.'

From a consideration of these provisions of law, it will be seen that the creation of police judge, or the establishment of a court for a city or incorporated town with a judicial officer, under the designation of police judge, comes within the purview of the constitutional provisions above quoted.

It also appears that the legislature has, by general law, conferred upon cities of the class to which Leadville belongs, authority for the election of an officer in the mode and under the name by which the defendant claims to have been appointed and designated.

But here the legislature stopped, and has failed to define the powers of a police judge, to establish his jurisdiction, or provide a mode of procedure for the exercise of judicial functions. These are essentials of a court. To create a judicial officer, by name merely, without defining his duties and providing the manner of their exercise, does not constitute a court.

It is contended by counsel for defendant that a 'police judge' is comprehended in the term 'police magistrate,' and that as the latter has an established jurisdiction, the former is in contemplation of law invested with the same powers.

Upon examination of all that our laws contain respecting police magistrates, we are forced to conclude that this contention of defendant is untenable. Precisely what a police magistrate is under our statute, has nowhere therein been very clearly defined. The first General Laws of the Territory relating to towns and cities, provided that actions arising under the ordinances of any town incorporated under that statute (1868), should be brought before any justice of the peace residing within the town, or if there were none such, then before any justice of the peace of the county, 'or other court of competent jurisdiction.' By 'other court' was evidently meant some one already established by existing law, such as the probate court. R. S. p. 615, Secs. 1 and 5.

Section 9 of the act relating to the city of Denver, approved February 13, 1874, provides that the city council may 'designate in such manner as they may determine, one person resident within said city, upon whom, by the laws of the Territory, shall have been conferred the jurisdiction of justice of the peace, and such person when so designated by the city council, shall have jurisdiction in all cases arising under this act and the ordinances of the city of Denver, except,' etc. A subsequent section of the same act (Ses. Laws, 1874, p. 288) authorizes the arrest of persons 'committing any offense against the laws of the Territory or the ordinances of the city,' and bringing such persons 'before a police magistrate or other competent authority for examination,' and refers to the process therefor, 'issued by any police magistrate or by any justice of the peace in criminal matters within the limits of the city.'

Next comes the constitutional provision, referring to 'police magistrates for cities and towns,' and thereafter the State statute (Sec. 2661, G. L.) that 'any and all justices of the peace and police magistrates shall have jurisdiction in all cases arising under the provisions of this act, or any ordinances passed in pursuance thereof, or the city council may designate one justice of the peace who shall have such jurisdiction exclusively.'

This provision of the State laws would seem to have been borrowed in substance from the similar provision in the act cited above relating to the city of Denver.

The word magistrate itself is a generic term, including many public civil officers, executive and judicial, from the president of the United States down to justices of the peace. A police magistrate, without other legal definition, supposes some officer of the State, or some municipal division thereof, invested with authority-executive or judicial, relating to the administration of police or municipal laws. The persons referred to in section 2661, as police magistrates, are not defined to be officers distinct from ordinary justices of the peace, except in so far as they may, as such justices of the peace, have been designated or appointed by the city council to have exclusive jurisdiction of cases arising under the ordinances of such city. For since the law has provided no mode of creating a police magistrate except by the election of an ordinary justice of the peace, and since by the express terms of the statute all justices of the peace are vested with jurisdiction of all cases arising under the ordinances of cities and towns, it follows that all justices of the peace are equally police magistrates, and may equally exercise such function, unless one such shall have been appointed by the city council to have and exercise exclusive police jurisdiction.

A police magistrate, therefore, under existing laws in this State, must be a justice of the peace, duly elected and qualified primarily, and as such becomes a police magistrate ex officio.

In the agreed statement of facts filed in this case, it is admitted that the defendant at...