McNulty v. Connew

Downey, J. This was a proceeding by habeas corpus, on petition of the appellant against the appellee, as keeper of the city prison of the city of Lafayette. The question presented is as to the power of a city judge to take and exercise jurisdiction of actions for violations of the city ordinances, and to commit to prison parties found guilty. On the 2d day of February, 1874, the city council adopted [570] and put in force an ordinance declaring that it was deemed expedient, as a matter of economy, that a city judge, for the city, should be elected, and providing, in the first section, that at the general election for city officers, to be held on the first Tuesday in May, 1875, and at all subsequent elections, there should be elected a city judge. In the second section, it was and is provided, that the city judge so elected shall possess the judicial power and perform the judicial duties that are now possessed and performed by the mayor of the city .under the provisions of sections 17, 18, 19, and 20 of the act of the General Assembly of the State of Indiana, entitled “ an act to repeal all general laws now in force for the incorporation of cities, prescribing their powers and rights, and the manner in which they shall exercise the same, and to regulate such other matters as properly pertain thereto,” approved March 14th, 1867 ; and he shall qualify for his office and give bond in the same manner as the mayor is by law required to qualify and give bond. The other sections of the ordinance fix the compensation of the judge and mayor, and repeal conflicting ordinances. Afterward, on the first Tuesday of May, 1875, Hon. William S. Haggard was elected city judge, and qualified as such. On the 23d day of August, 1875, the appellant was'arrested and arraigned before the said city judge for a violation of.one of the ordinances of the city, and on examination was found guilty and fined. Refusing to pay the amount of the fine and costs, he was committed by the judge to the custody of the appellee, as keeper of the city prison. On his petition, the appellant was brought before Judge "Vinton, on habeas corpus, who, after an examination of the cause of his commitment, remanded him to the custody of the appellee as such prison-keeper. Thus the question is presented, by an appeal to this court, as to the authority of the city judge to take and exercise such jurisdiction. The eighth section of the act of March 14th, 1867, sayS: “The officers' of such city shall consist of a mayor, two eouncilmen from each ward, a city clerk, assessor, treasurer, civil engineer, street commissioner, and marshal, and if the [571] common council deem it expedient for the best interests of the city, a city attorney and city judge.” It is provided in section 17, as follows: “ It shall be the duty of the mayor to see that the laws of the State and the by-laws and ordinances of the common council be faithfully executed within such city; he shall be a conservator of the peace, and, as such, shall have, within the city limits, the powers conferred upon justices of the peace for that purpose; * * he shall hold a city court every day, Sunday excepted, at a place to be furnished by the common council. While sitting as such court, he shall have exclusive jurisdiction of all prosecutions for violations of the by-laws and ordinances of the city and township in which such city is situated; he shall have, within the limits of said city, the jurisdiction and powers of a justice of the peace in all matters, civil and criminal, arising under the laws in this State, and for crimes and misdemeanors his jurisdiction shall be co-extensive with the county in which such city is situated,” etc. There is no provision in the act declaring that when a city judge has been provided for and elected, he shall have and exercise the same jurisdiction thus conferred upon the mayor, either exclusively or concurrently with the mayor, or that he shall have any jurisdiction whatever. In several places in the act, the words “ mayor or city judge ” and “ city judge or mayor ” are used in speaking of certain official duties. See Howard v. Shoemaker, 35 Ind. 111. In the acts, preceding that now in force, of 1857 and 1865, this provision is found, which is wholly omitted in the present statute: “If the common council shall deem it expedient for the interests of such city to cause a city judge to be elected, the same may be done at any general election at which the mayor shall also be elected, and such city judge shall give the like bond as the mayor is herein required to give, and he shall, from and after his due qualification, perform all the judicial duties herein required to be performed by the mayor.” It is impossible for us to find, from anything contained in [572] the act now in force, that the city judge, when elected, is to supersede the mayor in his judicial duties, for the plain reason that there is no language of the act which attempts to express such an intention. Judge Dillon, in his work on Municipal Corporations, vol. 1, sec. 359, says: “ In creating local tribunals, however, and in prescribing their jurisdiction, it is essential that the legislature should keep in view two cardinal considerations: First. That these inferior courts will have only such jurisdiction, and can exercise only such powers, as are expressly given, or necessarily implied. Fair doubts as to the extent of jurisdiction are resolved against the corporation; to this effect are all the authorities. Second. Regard should also be had to constitutional provisions intended to secure the liberty and protect the rights of the citizen.” In School Inspectors, etc., v. The People, 20 Ill. 525, the court said : “ In construing grants of power to inferior courts, nothing is to be held by implication, as granted, unless absolutely necessary to a full exercise of its granted powers.” In Thompson v. Cox, 8 Jones N. C. 311, it is said: “ The powers of a court of limited jurisdiction cannot be enlarged by implication.” In Paine v. Ely, 1 D. Chip. 37, it was held, following the language of Blackstone, that “ particular jurisdictions derogating from the general jurisdiction of the courts of common law are ever taken strictly, and cannot be extended farther than the express letter of their privileges will warrant.” The doctrine of the cases in this court is the same. The Board of Commissioners, etc., v. Markle, 46 Ind. 96, and authorities there cited. We have seen that there is nothing in the statute which authorizes the city judge to supersede the mayor in his judicial functions and duties. The statute, as we have seen, requires the mayor u to hold a city court every day, Sunday excepted,” and provides, that a while sitting as such court, he shall have exclusive jurisdiction of all prosecutions for violations of the by-laws and ordinances of the city,” etc. As the city judge does npt supersede the mayor in his judicial duties, and as the [573] mayor must hold a court every day, except Sundays, and has, while sitting, exclusive jurisdiction of cases for violations of the city ordinances, we think it pretty clear that the city judge had no jurisdiction to arraign, try, and commit the appellant. If this construction shall result in the existence of a judicial officer without any causes to try, it must be attributed to oversight on the part of the legislature in failing to say what jurisdiction he shall have. No jurisdiction is expressly conferred upon him, and, according to the authorities cited, he can have none by implication, except when necessary to carry out that expressly given. The section of the city ordinance attempting to confer jurisdiction upon the judge is wholly inoperative for such purpose. It can. have no other effect than that of showing that the city council supposed that without it such jurisdiction would not exist. It is urged by counsel for appellee that the act of March 14th, 1867, did not repeal that of December 20th, 1865, because in the repealing section, section 94, the act is mentioned as bearing date in 1863, instead of 1865, and that, therefore, the act of 1865 on this subject is yet in force. We think there is nothing in this point. The title of the act of March 14th, 1867, declares the intention of the legislature to repeal all general laws then in force for the incorporation of cities, and to provide a new act on the subject. In the repealing section, the title of the act of 1865 is correctly recited, but the year in which it was approved is given as 1863 instead' of 1865. There was no act with such a title passed in 1863. We think the act intended to be repealed is sufficiently identified, and that it was expressly repealed by the present act. Leard v. Leard, 30 Ind. 171; Shoemaker v. Smith, 37 Ind. 122. The judgment is reversed, with costs, and the cause remanded, with instructions to discharge the appellant from custody.