The opinion of the court was delivered by
The plaintiff in error was convicted in the Hudson Quarter Sessions on an indictment charging him with taking, as justice of the peace, a fee to execute and do his duty and office such as is not allowed by the laws of the state and contrary to the twenty-third section of the Crimes act. The judgment was removed to the Supreme Court and was there affirmed, and thereupon this writ of error was brought. The bill of exceptions shows that the plaintiff in error, on issuing a warrant for the arrest of a person charged before him with a misdemeanor, took from the complainant, for his services, the fees prescribed by law. The trial judge instructed the jury that such fees were due to a justice of the peace only after conviction of the party charged, but that he could not be convicted of extortion unless he demanded the fees received by him from the party making the complaint, because of the provisions of the second and third sections of an act approved April 6th 1871. Rev., p. 565. The second section providing that “no fees be demanded from parties applying to justices of the peace for their services, but shall be paid out of the funds of the county in which said services were rendered;” and the third section, that upon payment being made to the justice by the county collector “said justice shall refund to the complainant so much of said costs as shall have been paid by the complainant to said justice.” That he might take the fees if they were offered to him. The Supreme Court agreed in this interpretation of the act of 1871, and affirmed the judgment. We think no criticism can be made upon the construction given to this act in the trial court and in the Supreme Court, but the question is here raised as to the consti
The powers of justices of the peace, as public magistrates, had their existence essentially as now long before the act constituting courts for the trial of small causes was enacted. It has been the habit from early times to confer upon such officers jurisdiction in certain civil causes, and in the act of March 15th, 1798 (Pat. L., p. 318), constituting courts for the trial of small causes, a well -defined civil jurisdiction, with prescribed modes of procedure, was established, and justices of the peace ex officio are constituted the judges. And a review of all their judgments was to be had in the civil courts.
None of the powers exercised by justices of the peace in criminal matters are derived from, or in any way regulated by the provisions of that act, and the title chosen by the legislature for the act in question would not serve in any way to indicate a purpose by the law to legislate in respect to these officers as conservators of the peace. Their duties are to arrest, examine, commit, or to bail, and that in all criminal cases. No case of a criminal character is before them to hear or to try. This title is misleading, and not in compliance with paragraph 4 of section 7 of article 4 of our constitution, which requires the object of every law to be expressed in its title. This enactment, then, can have no effect in determining the correctness of this judgment.
The conviction, if supported, must then rest on the correctness of the instruction to the jury that it is criminal extortion in a justice of the peace to ask or demand from a complainant in a criminal case, at the time the complaint is made, payment of the fees fixed by law for his services. It has been the uniform practice in this state to pay these officers by established fees for specified services performed. As early as
Our present fee bill embodies the provisions of the act of 1799. The only other legislation found relating to this subject is in section 108 of the Criminal Procedure act. Rev., p. 287. This section originally formed the third section in the act of 1871. At the time of the Revision, it, with twootlier sections from the same act, were re-enacted under the
Nothing is to be found in any of the provisions of law above referred to, which by express words postpones the right of the justice of the .peace for services rendered by him in criminal cases until an indictment or conviction of the offender shall have been procured j nor do I think from any of its provisions is there to be inferred a design to place any restrictions upon his right to be paid fees that would not as well arise in the case of any of the numerous officers provided for in the acts of 1774 and 1798, and they embrace almost the entire body of public officers in the state, and I think it has not been suggested that any of these are debarred from claiming and demanding their fees upon the rendition of their official services.
If the long-continued practice of .these officers is to be regarded as of any weight as cotemporaneous exposition of the law, it may be safely said that the practice of justices of the peace to ask for and to be paid their fees by persons instituting criminal complaints before them has been the general, if not almost universal rule. The plain design of the one hundred and eighth section of tbe Criminal Procedure act was to cast upon the public the burthen of the entire expense in all those cases where the grand jury found ground to indict. It gives no intimation that justices shall not be paid their fees for services
In State v. Maires, 4 Vroom 142, and Cutter v. State, 7 Vroom 125, a different view was expressed by the court. The-point was not raised in either of those cases for decision. In, those views we are unable to concur.
It must not be inferred from this conclusion that justices of the peace may lawfully refuse to perform their duties as conservators of the peace unless their fees be first paid. The public are largely concerned in the proper performance of the-duties which the law casts upon these officers, and in the language of Chief Justice Beasley, in State v. Maires, “ the law is not so unwise as to make the enforcement of the criminal code dependent on the ability of the party injured to pay for-the services of its officials, and upon a sufficient oath the-magistrate is bound to proceed-independent of any mercenary considerations.”
But there is a well-marked distinction between the legal right of a public official to refuse to act unless he is paid, and his legal right to be paid for official services which he performs.
The judgment brought up must be reversed.