State Ex Rel. Money Service Co. v. Stuart

*371 HATCHER, PRESIDENT: In tbis proceeding the petitioner seeks to prohibit the enforcement of a judgment obtained on a summons of which the justice had no knowledge prior to issuance but which was issued by a clerk under general direction from the justice to sign his name to all official papers. It is Hornbook law that a public officer cannot delegate a discretionary power. Throop on Public Officers, sec. 571; 46 C. J., subject Officers, sec. 291; 6 R. C. L., subject Constitutional Law. So we look to the statutes relating to the issuance of a summons by a justice to ascertain if the act involves any discretion. These statutes show that before a summons is issued a justice should determine (1) whether the action sought to be brought is within his general and territorial jurisdiction; (2) whether he is under any statutory disability to act; (3) whether the process should be directed to a regular or a special constable; (4) whether the summons is prepared in form or in substance as the statute directs; (5) whether the security for costs or security on a bond is good, where security is required at the institution of the action; (6) whether the person is credible where an oath is offered to secure an order or a warrant of arrest; and (7) in such case whether the complaint states an offense. Consequently it appears that the issuance of every summons involves the discretion of the justice. The writ will therefore issue. Wnt issued.