Attorney General v. McDonald

| Wis. | Jun 15, 1854

By the Gowrt,

Whitow, C. J.

The Constitution of this State (Art. 7, § 2,) vests the judicial power of the State in a Supreme Court, Circuit Courts, and Courts of Probate and justices of the peace. Power is also given to the legislature to establish municipal courts, and inferior courts in the several counties, with limited civil and criminal jurisdiction. The question is, does the respondent exercise judicial power properly derived from either of the above provisions? We think not. As mayor of the city of Racine, he could not exercise any judicial functions, for the obvious reason that the mayor of a city is not one of the persons in- whom judicial power is vested by the Constitution, nor one in whom the legislature can vest such power. The first attempt to vest judicial power in the mayor of the city of Racine, was made by the legislature in the act to incorporate the city, passed on the 8th day of August, 1848. (Sess. Laws, 1848, 80.) The 8th section of this act, which prescribes the duties of mayor, prescribes that “ as' a judicial officer, he shall have concurrent original jurisdiction with justices of the peace of the county of Racine, of all cases for the violation of any ordinance of said city.”

The next legislative enactment upon the subject, was made in 1849, (Sess. Laws, 1849, chap. 87, § 2,) and is as follows: “ The mayor of said city (of Racine) shall have all the powers, and exercise all the jurisdiction of justices of the peace in this State, in addition to the powers now conferred on him, by giving bond as required by law.”

We do not deny that the legislature may establish a municipal court in the city of Racine, and may provide that the person elected judge of the court may be mayor of the city. But this has not been attempted by the legislature; they have sought to make the mayor a justice of the peace, by virtue of his election to the office of mayor, and have thus, (as it appeal’s us,) exercised powers not conferred upon them by the Constitution.

We think this is apparent from an examination of section fifteen, of article seven of the Constitution, which provides for the election of justices of the peace, “ whose term of office shall be for two years, and until their successor in office shall be elected and qualified.” Under this clause of the Constitution all the justices of the peace in this State are elected.

It would be a gross evasion of the Constitution, to hold that a person who is elected annually to the office of mayor of a city, could, by virtue of his election, be a justice of the peace, when all justices are required by that instrument, to be elected for two years, and to be elected specially to that office. Peop. vs. Maynard, 14. Ill., 419.

For the reasons above given, the judgment of the court below must be reversed.