State ex rel. Conrad v. Cotten

JOHNSON, J. This is a mandamus proceeding brought bv the relators, the prosecuting attorney of Henry county and the constable of Windsor township in that county, against S. J. Cotten, a justice of the peace of said township. The appeal is by defendant from the peremptory writ. The facts are not in dispute. A criminal proceeding had been instituted against one E. H. Thurman wherein he was charged with the illegal sale of liquor. The case came on for trial before defendant, as justice of the peace, and the prosecuting attorney demanded a jury. Thurman then [170] filed an affidavit alleging that the relator constable was biased and prejudiced against him. He asked that the justice appoint a disinterested person as elisor to summon the jury. The application was sustained by defendant who announced that an elisor would be appointed. The prosecuting attorney declined to proceed further and withdrew. On motion of Thurman, defendant dismissed the case for want of prosecution. This suit then was begun. The command of the writ is that defendant reinstate the cause on his docket, issue a venire for a jury, place the same in the hand of the relator constable for service “and proceed with the trial of said cause as in case of a trial for misdemeanor.” The parties agree that the sole question for our determination is whether defendant had the power to appoint an elisor. That question must be answered in the negative. Justice courts being purely statutory may exercise only such powers as the Legislature has expressly conferred on them by statute. [Enlow v. Newland, 22 Mo. App. 581; Carr v. Railroad, 108 Mo. App. l. c. 391; Brownfield v. Thompson, 96 Mo. App. 340; Loomis v. Railway, 17 Mo. App. 340.] The statutes contain no provision for the appointment of an elisor by such inferior courts. Section 1599, Revised Statutes 1899, applies only to circuit courts and is not extended to include justice courts by section 2780, which provides: “All proceedings upon the trial of misdemeanors before justices of the peace shall be governed by the practice in criminal cases in courts of record so far as the same may be applicable, and in respect to which no provision is made by statute.” Obviously this language does not refer to the power to appoint a temporary officer of the court. Since defendant was without authority to make the appointment and no. other question is presented for our solution, it follows that the judgment must be affirmed. All concur.