City of Muscatine v. Steck

Woodward, J. The defendant argues, that whilst by chapter 78 of the acts of 1853,137, a justice of the peace may act in the capacity of a justice for the trial of offences, in case of the absence or.inability of the mayor, yet when he does so act, the absence or inability of the mayor, must be made to appear upon the docket. Such being the provision of the act, he contends that' this not appearing, the justice has not shown his authority to act, and in this view we concur. [507] The plaintiff urges that the error is not made to appear by this motion, and the transcript. In other words, how does it appear that Burgesser was not the mayor, but was acting as a justice, in his place. He signs the proceedings as “ acting mayor,” &c., as before stated. The transcript is certified by “ J. G-. Stein, mayor, and ex. off. jus. peace.” The trial was on the 17th of July, 1857, and the transcript, so signed by Stein, was filed October 13th, 1857. Then, by referring to the act of 1S52-3, we find that provision is made for an absence of the mayor, in respectto two classes, of his duties. In regard to his duties as mayor properly, the council may appoint a president pro tempore, who may. preside, and sign ordinances, warrants, &c. ■ And in regard to his duties as a justice, any other justice of the peace, of the township, may act in his place. In both cases, the absence, or inability of the mayor, is to appear in the act done. It further appears from the charter, (Acts 1850-1, 59), that the mayor is elective in the month of March, and from section 20, that a vacancy is to be filled by the council, by appointment of record. Erom these things, we infer that Burgesser was acting in the place of the mayor, Stein being the incumbent of that office; and this being so, it was essential that he should show, upon his record, the facts which gave him authority to act. But the prosecution suggests that the defendant is not ■ properly in this court, for the reason that section 7 of the. act of 28th of January, 1857, (Acts 1857, 304), provides • that such causes shall be brought to the supreme court by writ of error. This objection would prevail, were it not. that the act of the 29th of January, 1857, provides that all criminal causes may be brought up by appeal. And as the act of January 28th embraces causes before justices, (and therefore, under the general law of the state), as well as those before mayors, (and therefore, sometimes, at -least, under- ordinances); so the act of January 29th must be regarded as embracing the latter, as well as the former. As that of the 29th was passed subsequently to the other act [508] named, it repeals tlie seventh section of that, as being in conflict with the last act. For the reasons before given, the judgment will be reversed!