Tucker v. Banks

ELLETT, Chief Justice: This is another case where a twice-adjudged guilty drunk driver seeks a loophole through which he hopes to escape his just desserts. His first claim is that the city judge pro tempore who originally tried him was not a judge in the city court. Our statute provides that when a city judge is unable to act, the mayor may appoint a judge pro tempore to hold court.1 The statute provides: . the judge pro tempore so appointed shall possess all the qualifications required of the city judge and shall be vested with the same powers and authority. [Emphasis added.] The qualifications of a city judge are set out as follows: No person shall be eligible to the office of judge of the city court who at the time of his election is not a qualified elector and a bona fide resident of the city for which he may not [sic] be elected, nor shall any person be eligible to said office who has not been admitted to practice in, and is not in good standing in, the Supreme Court.2 [Emphasis added.] The section permitting the appointment of a judge pro tempore provides only that the judge possess the same qualifications as that of a city judge. Obviously the reference to being an elector and a resident at the time of election does not apply to one who was not elected. That which is re-, quired of the judge pro tempore is that he be admitted to practice law and that he be in good standing in the Supreme Court. Every judge of a city court shall reside in and hold court in the city for which he is elected, and the city commissioners or city councils of such cities shall provide suitable rooms for holding the city court, together with attendants, furniture, lights and stationery sufficient for the transaction of business, the expenses of which shall be paid out of the general funds of the city treasurer.3 [Emphasis added.] This language is not contained in the statute that sets out the qualifications of judges and, therefore, does not prohibit the appointment of a non-resident attorney to serve pro tempore. Some cities with city courts might not have another resident lawyer, and surely no one would contend that the court could not be manned during the illness of the elected judge. Even if the contention of the drunk-' en driver be correct as claimed, he cannot complain about that in this Court. He took an appeal from the judgment in the city court and had a trial de novo in the district court before a judge and jury for which he does not and could not make any complaint. There he was also found guilty. That legally ends his basis for complaint in this matter for our Constitution clearly provides that the ruling of the district courts on criminal cases appealed from justices’ courts are final,4 except in cases involving the validity or constitutionality of a statute. City courts are ex-officio justice courts; and appeals from city courts in criminal cases are the same as are those from justice courts.5 [15] In this case the guilty plaintiff does not question the constitutionality or validity of a statute; therefore, the ultimate and highest authority to consider the errors claimed as permitted by the Constitution is the district court where the trial de novo was had. Plaintiff’s counsel, being aware of the constitutional prohibition, sought to enlist this Court’s attention by filing a “complaint” wherein he asks us to prevent the district judge who heard the matter on appeal from carrying out the lawful sentence imposed upon his client. This lawyer loophole-tactic must not be condoned. To do so would ignore the constitutional inhibition against appealing from the final rulings of the district court in such cases. Plaintiff makes other claims of error in his complaint. He made the same claims to the district court where all of them were rejected. There is no merit to the complaint and it should be, and is, dismissed. CROCKETT, J., concurs in the main opinion and also in the concurring opinion of HALL, J. Footnotes [1] U.C.A. 1953, 78-4-11. [2] U.C.A. 1953, 78-4-8. [3] U.C.A. 1953, 78-4-10. [4] Utah Constitution, Article VIII, Sec. 9. [5] State v. Lyte, 75 Utah 283, 284 P. 1006 (1930); Salt Lake City v. Perkins, 122 Utah 43, 245 P.2d 1176 (1952).