159 P. 1166 | Or. | 1916
delivered the opinion of the court.
“The judicial power of the state shall he vested in a Supreme Court, Circuit Courts and County Court, which shall he courts of record, having general jurisdiction, to he defined, limited and regulated by law, in accordance with this Constitution. Justices of the peace may also be invested with limited judicial powers, and municipal courts may be created to administer the regulations of incorporated towns and cities. The Supreme Court shall consist of four justices, to be chosen in districts by the electors thereof, who shall be citizens of the United States, and who shall have resided in the state at least three years next preceding their election, and after their election, to reside in their respective districts. The number of justices and districts may be increased, but shall not exceed five, until the white population of the state shall amount to one hundred thousand, and shall never exceed seven; and the boundaries of districts may be changed, but no change of district shall have the effect to remove a judge from office, or require him to change his residence without his consent.”
It will be observed that the sections as amended omit all reference to justices of the peace eo nomine, but vest judicial power in the Supreme Court and “such other courts as may from time to time be provided by law.” But for the proviso in Article VII, Section 2, the whole system of Circuit Courts, County Courts, and Justices’ Courts would have been repealed. If Justices’ Courts exist now, it is because they are included among the courts preserved by the terms of Section 2. It is not conceivable that the framers of the amended Article VII intended to abolish Justices’ Courts and thus leave a hiatus in our judicial system to be filled by subsequent legislation. The Constitution of Georgia (Article VI, Section 1) is similar to
“The judicial powers of this state shall be vested in the Supreme Court, Superior Courts, courts of ordinary, and justices of the peace. ’ ’
In State v. Port (C. C.), 3 Fed. 117, 123, the court in construing this provision says:
“A justice of the peace is therefore an officer, clothed with judicial powers, when acting in his capacity, and within his jurisdiction he is, to all intent and purposes, a court.”
See, also, Tissler v. Rhein, 130 Ill. 110 (22 N. E. 848); Scott v. Spiegel, 67 Conn. 349 (35 Atl. 262).
In our statutes and reports, as well as in common parlance, the proceedings before a justice of the peace are always referred to as proceedings in “Justices’ Courts,” and it is only fair to presume that when the amendment of 1910 speaks of courts it was intended to include all courts and all tribunals then generally called and recognized as courts. Being by the Constitution invested with judicial powers, it would seem to follow naturally that a justice of the peace is a judge. By title he is a justice of the peace, by function he is a judge—just as judges of this court are by title justices, and by function judges. In New York it has been frequently held that statutes relating to judges should be construed as applying to justices of the peace. Thus, where the statute declared that no judge of any court could sit in any cause in which he was interested, it was held that the term “judge” included a justice of the peace: Edwards v. Russell, 21 Wend. (N. Y.) 63; Baldwin v. McArthur, 17 Barb. (N. Y.) 414; Foot v. Morgan, 1 Hill (N. Y.), 654. And so, where the statute declared that no judge of any court should have a voice in the decision of any cause
We are of the opinion that a Justice’s Court is a court and a justice of the peace a judge within the meaning and intent of Article VII, Sections 1 and 2, of the Constitution, as amended in 1910; and that plaintiff is entitled to hold the office of justice of the peace for the term of six years from January 1, 1913.
The decree of the Circuit Court is affirmed.
Affirmed.
