28 Ind. 51 | Ind. | 1867
— The appellee was prosecuted before a justice of the peace, and a fine assessed against him, for selling spirituous liquors' in the town of Spencer to a minor, 111 violation of a corporate ordinance of said town.
On an appeal to the Court of Common Pleas, that court dismissed the case for want of jurisdiction in the justice of the peace. The correctness of that ruling is denied. This !s the only question in the case. The facts, as they appear upon the record, by an agreement of the parties, are these: There were, at the date of these proceedings, two duly •commissioned justices of the peace residing within the corporate limits of the town, the justice before whom the case was prosecuted being one of them. They were both elected for the township at large in which said town is situated, and not especially for the town. The board of commissioners of the county had never made an order for an 'additional, justice for said town, nor was any one elected •specially therefor.
The act for the incorporation of towns, '&c., provides that, “Any person violating the provisions of any ordinance of a town organized under this act, to. which there may be a penalty affixed, may be prosecuted before a
Justices of the peace aro township officers, and under the constitution of the State must be elected by the qualified voters of the township. 1 G. & H. art. 7, §, 14, p. 47. The object of the first section of the justices act, eopied above, is to empower the board of county commissioners to regulate and fix the number of justices of the' peace- for each township in the county. It confers on the commissioners a discretionary power as to the number, to be exercised by them as the public exigency may require. The latter clause of the section, however, limits that discretion by providing that not more than three shall be elected in each - township, and one in addition thereto for each ineox-porated town thei’ein. In other words, if the township contains no incorporated town within its limits, it cannot have moro than three justices of the peace, but if it contains an incoi'porated town or towns, then an additional number of justices, equal to the number of incox’porated towns, may be allowed. All however are justices of the township, and elected; by the voters thereof. The additional justice so provided for oxx accouxxt of an incorporated town may, by. the ox’der of the board of commissioners providing for his election,.be requix-ed to reside within the corporate limits; but hewoxxld nevertheless-be a justice of the township, and elected, by the voters thereof, and his jurisdiction would be
The judgment of the Court of Common Pleas dismissing the ease is reversed and set aside, with costs, and the cause remanded for further proceedings in accordance with this opinion.
