Golding's Petition,

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| N.H. | Aug 10, 1876

Lead Opinion

ROCKINGHAM COUNTY. The petitioner, Thomas Golding, complains that he is unlawfully restrained of his personal liberty by Samuel W. Leavitt, keeper of the jail at Exeter, in this county. It appears by the return of the keeper of the jail, that, June 3, 1876, a complaint was presented to Lewis G. Hoyt, a justice of the peace for said county, by James Watkins, charging that the petitioner had threatened to do him bodily harm; that he feared the petitioner would do him some bodily hurt; and praying that he might be ordered to give sureties to keep the peace, c. A warrant was issued upon said complaint, upon which the petitioner was arrested and brought before William A. Shackford, a justice of the peace for said county, and on June 24, 1876, was ordered to recognize in the sum of $100, with two sufficient sureties, to be of good behavior for one year, and to pay costs of prosecution taxed at $8.57, and stand committed till said order should be complied with. Golding having neglected to perform said order, a mittimus was issued by said Shackford, July 17, 1876, by virtue of which he was committed to the jail in Exeter by C. D. Towle, a deputy sheriff, August 2, 1876.

It appears by the evidence introduced, upon the hearing of this petition, that Lewis G. Hoyt, the magistrate before whom said Watkins made his complaint on oath, was born on February 23, 1856, and is therefore still an infant, under the age of twenty-one years. The question presented is, whether an infant can hold the office and exercise the duties of a justice of the peace, or, in other words, whether the proceedings against Golding are invalid because the complaint against him was sworn out before a justice of the peace who was an infant.

In Moore v. Graves, 3 N.H. 408" court="None" date_filed="1826-04-15" href="https://app.midpage.ai/document/moore-v-graves-8503521?utm_source=webapp" opinion_id="8503521">3 N.H. 408, in an opinion by RICHARDSON, C. J., the subject what offices an infant may and what he may not hold was fully considered, and the numerous authorities on the subject collected by him. It is there said, that it has always been held that an infant cannot execute the office of a judge. The authorities cited are Scambler v. Waters, Croke Eliz. 636; Coke Litt., 3 b. and note 15; T. Jones 127; 2 Lev. 245. The learned chief-justice, upon a thorough examination of the adjudged cases, held that "offices where judgment and discretion and experience are essentially necessary to the proper discharge of the duties they impose, are not to be intrusted in the hands *149 of infants. But they may hold offices which are merely ministerial, and which require nothing more than skill and diligence," — p. 412.

There is no ground for questioning the law as thus stated. The rule is founded in the soundest principles governing the administration of justice, and is for the benefit and safety alike of the public and of the individual — pro commodo regis et populi. Coke Litt., 3 b. The grant of such an office "to a man that is unexpert" is merely void. — Ib. The administration of an oath is a ministerial act, but the office of a justice of the peace is a judicial office, and, being such, cannot be held by an infant.

The defect is one not apparent on the papers, and hence may be shown by extrinsic evidence. It follows that the petitioner was tried upon an illegal complaint. He is therefore entitled to be discharged from arrest.

Concurrence Opinion

The authorities cited by my brother SMITH fully sustain the position that an infant cannot hold or execute the office of a justice of the peace, though I think it would hardly be necessary to cite an authority for the doctrine.

Being in the eye of the law infans, i. e., speechless, or, in other words, unable to speak for himself in ordinary matters of contract, unable in the eye of the law to exercise sufficient judgment to bind his property by the purchase of a penny-whistle, or by a promissory note for any sum however small, the idea that the same law would permit him to exercise judicially power over the liberty, the persons, and the property of his fellow-citizens, is simply absurd.

I fully agree with my brother SMITH in the conclusions which he has reached.

LADD, J., concurred.

Petitioner discharged from arrest.