Jenkins v. Morning

38 Wis. 197 | Wis. | 1875

Cole, J.

We are of the opinion that the police justice lost all jurisdiction to try this action, on the application made for its removal.

On the return day of the summons, the defendant made and filed his affidavit that from prejudice or other cause he believed the police justice would not impartially décide the matter. The general statute in regard to justices’ courts provides that in all cases where the defendant, on the return day of the process, and before any proceedings are had on his part, shall make an oath that, from prejudice or other cause, he believes such justice will not decide impartially in the matter, and shall pay the justice seventy-five cents for making a copy of his docket and transmitting the papers in the case, such justice shall immediately transmit all the papers in the cause to the nearest justice, who is authorized to proceed and try the cause in the same manner as though the same had been commenced before him. Sec. 47, ch. 120, R. S. This provision undoubtedly secures to the defendant the absolute right to a removal of the cause upon complying with its terms; and the questiomis, whether it applies to the police court of the city of Chippewa Palls. The police justice held that be bad no right under the charter,'nor by the general statutes, to send the cause to a justice of the peace for trial; and in this view the circuit court probably concurred.

The police court created by the charter is doubtless a municipal court under the decisions in Atkins v. Fraker, 32 Wis., 510, and Connors v. Gorey, id., 518; and it is argued on the part of the plaintiff that there is no authority whatever for removing a cause from that court to a justice’s court, and that the justice act has no application to it. This calls for an examination of the provisions of the city charter in reference to the police court.

Sec. 15, ch. 4 of the charter (see ch. 169, Laws of 1873), confers jurisdiction upon the police justice in the following language : “ The police justice shall have and possess all the authority, powers and rights of a justice of the peace in civil proceedings, and shall have sole, exclusive jurisdiction to hear all complaints, and conduct all examinations and trials in criminal cases within the city, cognizable before a justice of the peace, in which the city is a party.” “ The said justice * * shall have exclusive jurisdiction of all suits, prosecutions and proceedings for the recovery of any fine ” or penalty under the ordinances or by-laws of the city; and it is provided that “ the same- proceedings shall be had in all civil and criminal suits before said justice, when not otherwise herein directed, as are established and required to be had in civil and criminal actions, by the laws of this state, before a justice of the peace.”

Here it will be seen there is no attempt to define the jurisdiction of the police justice in a certain class of causes, except by reference to the statutes which determine the jurisdiction of a justice of the peace. The police justice in civil actions takes the jurisdiction and exercises the powers and authority of a justice within the municipality. And in placing a construction upon this clause of the charter, it is necessary to look into the justice act in order to give it meaning and effect. It is entirely dependent on that act; and in a certain sense tbe provisions of the justice act, so far as applicable, become by reference a part of the charter. The provisions of the justice act in regard to the commencement of suits, the amount in controversy, the issuing and return of process, adjournment, and the whole mode of procedure in civil actions, regulate and govern such actions before the police justice. And when the justice act expressly provides for the removal of a cause on account of the prejudice or improper bias of the justice before whom it is commenced, we see no ground or reason for excluding that provision, and saying that it is inapplicable to the police justice. It seems to us that the provision does apply, and that it is as controlling upon the police justice as it is upon a justice of the peace. For, as already observed, in order to construe the clause of the charter conferring jurisdiction upon the police justice, resort must necessarily be had to the statute regulating the jurisdiction of a justice, and in no other way will the clause be rendered complete and intelligible. The police justice, within the city limits, in a civil proceeding, possesses and takes “ all the authority, powers and rights of a justice of the peace;” that is, whatever jurisdiction and power are conferred upon a justice by the laws of the state in such an action, are expressly conferred, by reference, on the police justice. And as the statute gives the power and makes it the duty of a justice to remove a cause upon a proper application, so also the statute gives the same authority, and makes it equally the duty of the police justice, to remove the cause upon a like application. It seems to us there is' no escape from this conclusion, if we consider the dependence or connection between this clause of the charter and the general statute referred to.

It is said on the part of the plaintiff, that the application for the removal was not in compliance with the statute, because seventy-five cents were not tendered the police justice for making a copy of his docket and transmitting the papers to the nearest justice qualified to try the cause. On the back of tbe affidavit the police justice made this statement: “ 75-100 dollars tendered before any other proceedings were had on the return day of the summons.” In the return to the writ of cer-tiorari, the police justice states that the defendant “made and filed bis affidavit of prejudice, and tendered the court a five-dollar bill from which to take his fees.” It is very clear the police justice did not refuse to remove the cause upon the technical ground that the tender of his fees was not good, but solely, as he states, because he had no right or authority to grant the removal. The question, therefore, whether the tender was sufficient, is not before ns, though we may remark, without deciding the point as to its sufficiencj'', that even if it were not a proper tender, the justice should distinctly state his objection at the time, and give the party an opportunity to tender the precise sum, if that were necessary.

There can be no doubt that a justice of the joeace elected under the city charter would have been authorized to take jurisdiction of the cause and to try it, had the police justice transmitted the papers, as he should have done on the application. . See sec. 5, ch. 4 of the city charter.

It follows from these views that the judgment of the circuit court must be reversed, and the cause must be remanded with directions to that court to reverse the j udgment of the police justice for want of jurisdiction.

By the Court. — It is so ordered.