26 Kan. 780 | Kan. | 1882
The opinion of the court was delivered by
This is an application for a writ of habeas corpus. The case is submitted to us on exception to the return of the respondent. These facts appear: The petitioner was arrested on a complaint filed with L. W. Chaddon, a justice of the peace in and for Wellington township, Summer county, charging a violation of the prohibitory law of last winter. Upon trial he was found guilty, and sentenced to pay a fine and costs, and committed to jail until their payment. As a matter of fact, the trial and all proceedings connected therewith, including the sentence, were had outside the limits of Wellington township, though within Sumner county; in other words, the justice of the peace, residing in and an officer of Wellington township, held his court and proceeded to trial and judgment in another township; and the single claim made is, that, because the justice so held his court outside the territorial limits of the township of which he was justice, all those proceedings are void. The majority of the court are of the
In a single case, provision is made by statute for an adjournment of the place of holding court to any place in the county, and that is in the examination of persons charged with crime. (Or. Code, § 45;) but the very fact that this power is expressly given in the one case adds force to the argument that in all other cases, and without such special delegation of power, it does not exist, and that the justice can act alone within his township. Authorities in a specific question of this kind would of course be rare. We refer to the following, as throwing some light on the question : Durfee v. Grinnell, 69 Ill. 375; People v. Keeler, 25 Barb. 426; Brandon v. Avery, 22 N. Y. 470; Foster v. McAdams, 9 Tex. 542.
So far as any suggestions of consent or request on the part of defendant are made, that cuts no figure in the case; for while consent may give jurisdiction of the person, yet it does not of the subject-matter; and if the court had no power to act outside of its township, the consent of the defendant would not make it a court, or give its act validity. This disposes of the case, and avoids the necessity of reference to any other question discussed by counsel. Indeed, whether the point presented by petitioner be correct, or not, it hardly presents a question which can be taken advantage of in this collateral way. But for the reason above stated, the petitioner is improperly restrained from his liberty, and must therefore be discharged from custody.
The costs of this proceeding will be taxed against the defendant.