CHAPTER XIII.

MUNICIPAL COURTS.

Municipal Courts in England and at Common Law.

§ 356. A municipal corporation may, at common law, enjoy the franchise of holding a court; and corporation or municipal courts, which were local or inferior jurisdictions, were not uncommon.' They were treated as the tribunals of the corporation, but since courts of justice are for the public benefit, words in a charter permitting the corporation to hold a court are imperative; and the right cannot be lost by non-user; and therefore the mere disuse, for two hundred years, of a court granted to a corporation by charter, is no answer to a rule for a mandamus commanding them to hold it, though it was alleged that there were no sufficient funds for the purpose.*

The common law doctrine respecting municipal courts was settled to be that the municipal corporation could bring no action therein against a stranger where the effect would be to benefit the corporation or increase its funds, for that would be to make the corporation itself both judge and party, which an inflexible and fundamental maxim of the common law prohibited; and the same principle was considered to operate to disqualify corporators to sit as jurors in such cases; but this objection did not apply when both parties were corporators."

The English Municipal Corporation Act of 1835 provides for the establishment of borough courts, defines their jurisdiction and powers, makes burgesses or citizens competent

1 1 Inst. 114; 4 Ib. 87, 224; Cro. Jac. 313; Haddock's Case, T. Raym 435.

'Rex v. Mayor, &c. of Hastings, 5 B. & Ald. 592; Grant on Corp. 34. 3 Regina v. Mayor, &c. of Wells, 4 Dowl. P. C. 562.

'Hesketh v. Braddock, 3 Burr. 1856-1868; Grant on Corp. 194; London D. Wood, 12 Mod. 674; 1 Salk. 398; Bosworth v. Budgen, 7 Mod. 461; Rex v. Rogers, 2 Ld. Raym. 778; Willc. on Corp. 157, 165.

jurors, contains an express provision that no witness or magistrate shall be incompetent or disqualified by reason of his being liable to contribute to the fund of the corporation, and regulates in general the proceedings therein for violation of by-laws or ordinances, and the collection and enforcement of penalties.'

It may, however, be observed that the power to make by-laws is limited, and does not extend to acts criminal in their nature, and which are punishable by criminal statutes in force throughout the municipality.

American Corporation Courts-Constitutional Provisions.

§ 357. In this country it is usual to provide in the charter or organic act of a municipal corporation for a local or special tribunal, called by different names, such as the mayor's court, recorder's court, city court, and the like; and which is invested with jurisdiction over complaints and prosecutions for the violation of the ordinances of the corporation, and often, for public convenience, with special civil and limited criminal jurisdiction under the laws of the state.

It is competent for the legislature to provide for the establishment of these inferior courts, and to invest them with such measure of power and jurisdiction as may be deemed expedient, if no provision of the constitution of the particular state be infringed."

1 5 and 6 Will. IV. chap. LXXVI. secs. 90, 91–118-134, 1835.

2 State v. Mayor of Charleston, 14 Rich. (So. Car.), Law, 480; State v. Helfrid, 2 Nott & McCord, 233, 1820. Full discussion of legislative power to create inferior courts, and define jurisdiction. Ib.; Gray v. The State, 2 Harring. (Del.) 76, 1835. Mayor's court an inferior court within meaning of state constitution. Ib.; Egleston v. City Council, 1 Const. (So. Car.) R. 45, 1818. As to official character of city recorder. Ib.; Schroder v. City Council, 2 Const. R. 726; S. C., 3 Brev. 533; Tesh v. Commonwealth, 4 Dana, 522; Nugent v. The State, 18 Ala. 521, 1821. Holding the city court of Mobile, which is invested with criminal jurisdiction, and from whose judgment an appeal lies, to be constitutional, and defining meaning of inJerior court. Ib.; New Orleans v. Costello, 14 La. An. 37; Myers v. People, 26 Ill. 173; Davis v. Woolnough, 9 Iowa, 104; People v. Wilson, 15 Ill. 389; State v. Maynard, 14 Ill. 420; Beesman v. Peoria, 16 Ill. 484; Holmes v. Fihlenburg, 54 Ill. 203, 1870; Van Swartow v. Commonwealth, 24 Pa. St.

358. We have elsewhere shown that the courts have uniformly held that it was competent for the state legisla

181. 1854; Tierney v. Dodge, 9 Minn. 166; Burns . La Grange, 17 Texas, 415, 1856; Ex parte Slattery, 3 Ark. 434; 16. 561; Graham v. State, 1 Pike (Ark.) 171; Floyd v. Commissioners, 14 Geo. 354, 1853; State v. Guttierrez 15 La. An. 190; Muscatine v. Steck, 7 Iowa, 505; Richmond Mayoralty Case, 19 Gratt. (Va.) 673, 1870. The superior court of the city of San Francisco is constitutional. Seale v. Mitchell, 5 Cal. 403; Vassault v. Austin, 36 Cal. 691; Hickman v. O'Neal, 10 Cal. 294. The constitution of California, as amended in 1862, authorized the legislature to establish "recorder's or other inferior courts in any incorporated city or town;" and it was held, in view of the prior decisions in the state just cited, that the municipal criminal court of the city and county of San Francisco was an inferior court, and constitutional. People v. Nyland, 41 Cal. 129, 1871; Stratman, Ex parte, 39 Cal. 517, 1870. The Hustings Court of Richmond is constitutional Chahoon's Case, 21 Gratt. (Va.) 822, 1871; Richmond Mayoralty Case, 19 Gratt. (Va.) 673, 1870.

Under a constitutional provision declaring that "the judicial power shall be vested in a Supreme Court, in district courts, and in justices of the peace," an act conferring judicial powers on the mayor of a city was considered void, and it was held that for violations of its ordinances the corporation should resort to the judicial tribunals organized under the constitution. Lafon v. Dufrocq, 9 La. An. 350, 1854. But see The State v. Young, 3 Kansas, 445, 1866, where a provision in an organic act that the judicial power shall be vested exclusively in a Supreme Court, district, probate, and justice courts, was held not to prohibit the legislature from establishing municipal courts for the enforcment of municipal regulations and ordinances. And this seems to be the correct view. Shafer v. Mumma, 17 Md. 331. In Hutchins v. Scott, 4 Halst. (N. J.) 218, 1827, the objection was made that the legislature could not constitutionally confer the powers of justices of the peace on the mayor, recorder, or aldermen of a city or borough, the argument being that since the constitution provided for the appointment of justices of the peace only, and not for corporate officers, officers exercising the authority and powers of a justice of the peace should be appointed as such; but the objection was not sustained. In Illinois, mayors of cities cannot, it is held, be constitutionally invested with judicial power. The State, &c. v. Maynard, 14 Ill. 420; Beesman v. Peoria, 16 Ill. 484. By the general law of Indiana of 1857, for the incorporation of cities, mayors, in addition to their duties proper, have, "within the limits of cities, the jurisdiction and powers of a justice of the peace in all matters, civil and criminal, arising under the laws of the state, and for crimes and misdemeanors a jurisdiction co-extensive with the county." The constitution of the same state (art. VII. sec. 16) declared that "no person elected to any judicial office shall, during the term, be eligible to any office of trust or profit under the state, other than a judicial office." One Wallace was elected mayor of Indianapolis, and within his term he resigned and rece.ved a majority of votes for sheriff of the county. It was held by the Supreme

tures to create municipal corporations with powers of local government, and to authorize them to adopt ordinances or

Court of Indiana (Waldo v. Wallace, 12 Ind. 569, 1859; Gulick v. New, 14 Ib. 93), that Wallace was a "judicial officer," and therefore ineligible to the office of sheriff; that the voters of the county were chargeable with notice of his ineligibility; that votes cast for him were therefore ineffectual, and that his competitor, having received the greatest number of legal votes, though not a majority of the ballots, was duly elected. Notwithstanding the great consideration which these cases received, I venture, with great deference, to state that it is by no means clear to my mind that the mayor was a "judicial officer " within the meaning of the constitution. See, as bearing upon the above decision, and illustrative of the nature of the office of mayor, Howard v. Shoemaker, 35 Ind. 111, 1871: Morrison v. McDonald, 21 Maine, 550, 1842; State v. Maynard, 14 Ill. 419, 1853; Commonwealth v. Dallas, 4 Dallas, 229; S. C. more fully, 3 Yeates, 300, 1801; State v. Wilmington, 3 Harring. (Del.) 294, 1839. Authority of a mayor under a statute investing him with the powers of a justice of the peace. State v. Perkins, 4 Zabr. (N. J.) 409; 1 Harr. (N. J.) 237. See Baton Rouge v. Deering, 15 La. An. 208. A constitutional provision as to eligibility "to the office of judge of any court of the state," &c., and requiring a two years' residence "in the division, circuit, or county," was considered to have no reference to the office of recorder of a city. The People v. Wilson, 15 Ill. 389.

The constitution of Nevada provided that "the legislature may also establish courts for municipal purposes only, in incorporated cities and towns," and it was held that an act authorizing the city recorder to exercise the duties of committing magistrates in respect to offences against the public laws of the state was in conflict with the constitution. Meagher v. County, 5 Nev. 244, 1869. The constitution of Maryland contains a provision that "the judicial power of the state shall be vested in a Court of Appeals, in circuit courts, in such courts for the city of Baltimore as may be hereafter prescribed, and in justices of the peace," and it was held that the legislature might authorize municipal courts to try and punish disorderly persons and lewd women within the corporate limits, and generally to authorize the corporate authorities to exercise police powers, which were distinguished from the ordinary judiciary powers of the state. Shafer v. Mumma, 17 Md. 331, 1861. Further as to construction of constitution of Maryland as to judicial powers of Mayors. Hagerstown v. Dechert, 32 Md. 369, 1869.

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Under the constitution of North Carolina "special courts are authorized for the trial of misdemeanors in cities and towns where they may be necessary;" and it was held to be no objection to an act of the legislature that it did not authorize the officers of such court to try persons charged with misdemeanors, but only to bind them over. State v. Pender, 66 No. Car. 313, 1872. But under the constitution the legislature cannot confer upon mayors the judicial powers of justices of the veace in civil actions. Edenton v. Wool, 65 1b. 379.

by-laws with appropriate penalties for their violation. The power to do this includes, by fair implication, the power to authorize violations of ordinances (where the acts are not criminal in their nature) to be tried and determined in a summary manner; by a local or corporation tribunal.

The distinction between statute law and municipal bylaws has been pointed out, and the subject of concurrent prohibitions of the same act by the general law and by the local ordinances of a municipality treated, in the chapter on Ordinances. The distinction is there drawn, and is to be observed between acts not essentially criminal, relating to municipal police, and those intrinsically criminal, and which are made punishable by the general laws of the state. The pecuniary penalties which are annexed to violations of the former class, the legislature may, we think, authorize the corporation to enforce in its own name, by civil action, or by complaint, and provision need not necessarily be made that they shall be prosecuted in the name of the people or of the state.'

1 Barter v. Commonwealth, 3 Pa. (Pen. & W.) 253; Weeks v. Foreman, 1 Harrison (N. J.), 237; Ewbank v. Ashley, 36 Ill. 177; Williams v. Augusta, 4 Geo. 509; Floyd v. Commissioners, 14 Geo. 354; Kip v. Patterson, 2 Dutch. (N. J.) 298; Lewistown v. Proctor, 23 Ill. 533; State v. Jackson, 8 Mich. 110. See State v. Stearns, 11 Fost. 106; Goddard, Petitioner, 16 Pick. 504; Fink v. Milwaukee, 17 Wis. 26.

The constitution of the state of Iowa contains this provision: "The style of all process shall be 'The State of Iowa,' and all prosecutions shall be conducted in the name and by the authority of the same." Constitution of Iowa, art. V. sec. 8. The charter of the city of Davenport, in terms, authorized prosecutions for violations of municipal ordinances to be instituted in the name of the city, and it was contended that this portion of the charter was in conflict with the above quoted provision of the constitution. But the Supreme Court, in the case of Davenport v. Bird, 4 Iowa, 524, 1871, held otherwise. It was a prosecution in the name of the city against the defendant for a violation of an ordinance of a police nature, but for which, under the charter, the city was authorized to punish by a limited fine and imprisonment. In giving the opinion of the court, Miller, J., says: 'Is it necessary, under the constitution, that all prosecutions for violations of municipal police ordinances shall be conducted in the name and by the authority of the state of Iowa? Or, in other words, is that clause of the city charter of Davenport, which directs that all suits, actions, and prosecutions be instituted, commenced, and prosecuted in the name of the city of Davenport,' in conflict with the constitutional provision before refererd to ? We are of opinion that it is not. This clause of the constitution occurs in