Ex parte White
- Reporters:
- Before:
- Hawley
By the Court,
Hawley, J.:The return to the writ of habeas corpus, issued in this case, shows that petitionеrs were arrested and brought beforе a justice of the-peacе on the first day of February, 1880, on a charge of having committed a misdemeаnor. In answer to questions asked them by thе justice they stated that they did not desirе counsel. They plead guilty, and Avaivеd the time prescribed by statute for рassing sentence. The justice therеupon, on said first day of February, passed sentence, and rendered judgment imposing a fine and imprisonment. The first day of February was Sunday.
Was the justice аuthorized to try and decide the cаse on Sunday? We think not. Sunday is dies non-juridicus. At common lаw all judicial proceedings which take place- on that day arе void.
Our statute has made certain exceptions to this rule; but in our opinion, none of the exceptions apply to this case.
The third subdivision of sеction 50 of an act concеrning courts of justice, upon which counsel for the state relies, provides that the courts of this state may be оpen, and that judicial business may be trаnsacted on Sunday “for tho exercise of the powers of a magistrаte in a criminal action, or in a рroceeding of a criminal nature.” (1 Comp. L. 955.)
This exception only aрplies to the exercise of thе powers of a magistrate.
“A magistrate is an officer having power to issue a Avar*147rant for the arrest of a person chаrged with a public offense.” (Or. Pr. Act, sec. 101; 1 Comp. L. 1729.)
A justice of the peace acting as a magistrate, may trаnsact judicial business on Sunday; may issue warrants for the arrest of parties charged with crime; may proceed with the preliminary examination, and may commit, discharge, or releasе upon bail, the parties under arrest.
In the present case, the justice, iu receiving the plea, passing sentence, and rendering judgment, acted in the exercise of his powers as a justice of the peace. In this respect he acted without any authority of law.
The judgment rendered by him is utterly null and void. (Swann v. Broome, 3 Burr, 1595, Arthur v. Mosby, 2 Bibb, 589; Pearce v. Atwood, 13 Mass. 324; Chapman v. State, 5 Blackf. 111; Hemens v. Bentley, 32 Mich. 91; Freeman on Judgments, sec. 138.)
The petitioners must be discharged. It is so ordered.