A Treatise on the Criminal Law and Criminal Courts of the State of New York

OF THE OFFICE OF JUSTICE OF THE PEACE; AND OF THE JURISDICTION, DUTY AND AUTHORITY OF JUSTICES OF THE PEACE IN CRIMINAL CASES.

I. OF THE OFFICE OF JUSTICE OF THE PEACE.

II. JURISDICTION.

III. DUTY AND AUTHORITY OF JUSTICES.

CHAPTER. I.

OF THE OFFICE OF JUSTICE OF THE PEACE.

1. ITS NATURE.

2. OF THE QUALIFICATIONS FOR THE OFFICE.

3. JUSTICES HOW CHOSEN-THEIR NUMBER.

4. POLICE JUSTICES.

5. OATH OF Office.

6. JUSTICES TO GIVE SECURITY.

7. TENURE OF THE OFFICE.

8. WHEN IT BECOMES VACANT.

9. LIABILITY OF JUSTICES TO PROSECUTION.

10. FEES OF JUSTICES OF THE PEACE, IN CRIMINAL CASES.

1. Its nature.

JUSTICES of the peace were originally mere conservators of the peace, and had no civil jurisdiction. In this state a twofold authority is incident to the office: viz., a power to try civil causes where the sum in controversy does not exceed a certain specified amount, and in addition to their common law authority as conservators of the peace, criminal jurisdiction in the cases prescribed by statute. Before

the institution of justices of the peace, officers were appointed for preserving and maintaining the public peace who were [* 466] called conservators, wardens, or keepers of the * peace, till the statute of 34 Ed. 3, ch. 1 (which gave them the power of trying felonies), when they acquired the more honorable appellation of justices. The office of justice of the peace is one of great antiquity. It has had an existence in England for a period of nearly five hundred years, and in this state, under different titles, and with a jurisdiction more or less extensive, for more than a century and a half. (a) (1)

2. Of the qualifications for the office.

As the office is one of great antiquity, so it is one of great importance; and should be filled only by those who are well informed, honest, and fearless. In the language of Dalton, an ancient writer, justices should have "stout and upright hearts, and clean and uncorrupted hands," not fearing to offend, nor lending themselves, or their office, to evil-minded persons, but holding the balance even between the parties and the public. Besides their civil jurisdiction (of which it is not our purpose here to speak), the powers conferred upon justices of the peace under the acts respecting proceedings to prevent the commission of crimes, the arrest and examination of offenders of every grade, and as members of courts of special sessions, and in some cases, of the court of sessions, are of

(a) Davis' Just., 1. Cowen's Tr. Pref., 1.

(1) Magistrate defined.]—A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a crime. (Code Cr. Pro., § 146.)

Who are magistrates.]-The following persons are magistrates: 1. The judges of the supreme court;

2. The judges of any city court;

3. The county judges, and special county judges;

4. The city judge of the city of New York, and the judge of the court of general sessions in the city and county of New York;

5. The justices of the peace;

6. The police and other special justices, appointed or elected in a city, village or town;

7. The mayors and recorders of cities. (Id., § 147.)

Definition of "magistrate."]-Unless when otherwise provided, the term "magistrate" signifies any one of the magistrates mentioned in section 147. (Id., § 959.)

a nature too serious to be confided to the ignorant, or the dishonest. The ancient English statutes required that justices of the peace should "be of the best reputation, and most worthy men in the county." "And because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible," another statute required that no justice should be put in the commission unless he had lands to the value of £20 per annum. (b)

No property qualification is required in this state. But no person is eligible to the office of justice unless he is an elector of the town for which he is chosen. (c) A justice must also reside in the town for which he is chosen. (d) (2)

3. Justices how chosen-their number.

The constitution provides that the electors of the several towns, shall, at their annual town meeting, and in such manner as the legis lature may direct, elect justices of the peace, whose term of office shall be for four years. And that in case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. It also declares that their number and classification may be regulated by law. (e) It is further provided that justices of the peace, and district court justices shall be elected in the different cities of this state, in such manner and with such powers, and for such terms, respectively as shall be prescribed by law. (f) [ * 467 ] * The legislature had regulated this subject by the Revised Statutes; and the provisions of the Revised Statutes are still in force, so far as they are not inconsistent with the constitution, or subsequent legislation. It is enacted by the Revised Statutes that there shall be four justices of the peace in every town, divided into classes, one of whom shall be annually elected, in the manner prescribed in chapter eleven of the first part of the Revised Statutes. Each justice hereafter chosen shall hold his office for four years, except when elected to fill a vacancy, or on the erection of a new town, as hereinafter prescribed. (g)

(b) 4 Black. Com., 352.

(e) Const., art. 6, § 18.

(f) Const., art. 6, § 18.

(g) 1 R. S., 110, § 35; id., 7th ed, 340, 358, § 35.

(2) Police justices and assistant justices in the city of New York are so far local as to require the residence of every person holding such office within that city or county (1 R. S., 7th ed., 349, § 15.)

It is provided by statute, that no district attorney shall act as a justice of the peace. (Laws of 1852, ch. 304, § 5; 2 R. S., 7th ed., 971.)

Whenever a new town is erected, an election for justices therein is to be had at the next general election thereafter, unless a special election is directed by law. (h) If there are one or more justices then residing in such new town, they are to be deemed justices thereof, and will hold their offices according to their respective classes; and only so many justices are to be chosen as will be necessary to complete the number of four for such town. (¿) (3)

(h) Id., § 37; id., 7th ed., 358.

(i) Id., § 38; id., 7th ed., 359.

(3) Notice of meeting to determine classes.]—After the election of justices in such new town, the supervisor thereof shall within six days after the completion of the canvass by the county canvassers, give notice in writing to the justices elected, and to the town clerk, of the time and place where he will meet them, to determine by lot the classes of such justices; which notices shall be served at least six days, and not more than twelve, previous to the time appointed therein for such meeting. (1 R. S., 111, § 39; id., 7th ed., 359.)

Classes, how determined.]—At the time and place so appointed, the supervisor and town clerk shall cause to be written, on separate pieces of paper, as near alike as may be, the numbers one, two, three, four, if there shall have been four justices elected, and shall cause them to be rolled up as nearly alike as may be, and deposited in a box. The persons elected justices shall severally draw one of the said pieces of paper, and shall be classed according to the number of the paper so drawn by him, and shall hold his office for such number of years, either one, two, three, or four, as shall correspond with the number so drawn. (Id., § 40.)

If less than four justices shall have been chosen, then ballots shall be prepared as above directed, with numbers written thereon to correspond with the number of the classes which shall be vacant; and each person elected shall in like manner, proceed to draw one of the said ballots, and shall be classed according to the number so written on the ballot drawn by him, and shall hold his office according to such number. (Id., § 41.)

Neglect to attend.]-If any person elected a justice shall neglect to attend to such drawing, the supervisor shall draw for him. If the supervisor be absent from his town, or unable to serve, or his office be vacant, the town clerk shall give the notice herein required, and perform the duties enjoined on such supervisor. (Id., § 42.) Certificates of drawing.]-Duplicate certificates of such drawing, and of the result thereof, shall be made and certified by the supervisor and town clerk, or such one of them as shall attend the same, one of which shall be filed with the town clerk, and the other with the county clerk, and shall be recorded by the said clerks in the books in which the canvasses of votes shall have been recorded; and shall be conclusive evidence of the respective classes to which the persons so elected justices belong. (Id., § 43.)

Election for unequal terms.]—Whenever there shall be two or more justices chosen at any election, one or more of whom shall be chosen to supply a vacancy, and one for the regular term, the class to which each justice shall belong, and the term for which he shall serve, shall be determined by lot, in the presence of the supervisor and town clerk, within the time and in the manner herein directed; the same notice shall be given, the same proceedings had, and the result certified with the like effect as before declared. (1 R. S., 7th ed., 360, § 46.)

Classification.]-When two or more persons shall be elected to the office of justice of the peace, at any annual town meeting, the one of whom shall be an incumbent of office for a term not then expired, such incumbent shall be deemed elected for the regular term of four years, which will commence on the 1st day of January next following such election. (Laws of 1833, ch. 270, § 1; 1 R. S., 7th ed., 811.)

Ballots.]-When, at any such town meeting, except the first election in a new town, two or more persons are to be elected to the office of justice of the peace, it shall be lawful for each of the electors not voting for a person who may then be an incumbent of the office, to designate on his ballot the person intended for the regular term of four years, which will commence on the first day of January then next following, by the words or words and figures, "Longest term,” four years," or '4 years; " and

If, by the erection of a new town or the annexing of a part of one town to another, there are at any time more than four justices resid

the person having the greatest number of votes, without any reference to such designation, shall be deemed duly elected. (Id., § 2.) Who deemed elected for four years. number of such designations, shall be years. (Id., § 3.)

The person elected and having the greatest deemed elected for the regular term of four

Duty of presiding officers.]—The presiding officer or officers at any annual town meeting at which justices of the peace shall be elected, shall determine whether any, and what, person, in pursuance of the foregoing sections, has been elected for the regular term of four years; which determination shall be made at the same time and with the like force and effect, as he or they may determine what persons are elected to the office of justice of the peace; and such determination shall be entered in the minutes of the proceedings of the meeting, and shall be publicly read, and shall be deemed notice of the result, in the same manner as is now provided by law in relation to the canvass. (Id., § 4.)

Determination by lot.]—Where one person shall be elected for the regular term of four years, in pursuance of either of the preceding sections, the classes of all the persons elected to the office of justice of the peace, at any such annual town meeting, shall be determined by lot at the time, and in the manner, now prescribed by law. (Id., § 5.)

Vacancies.]-Where one person shall have been elected for the regular term, in pursuance of the foregoing provisions, the other person or persons elected justice of the peace shall be deemed elected to fill the existing vacancy or vacancies. And in case of more than one existing vacancy, the classes of the persons elected to fill the same shall be determined, by lot, within the time and in the manner now prescribed by law. (Id., § 6.)

Justices, when to be elected.]—Justices of the peace shall hereafter be elected by the people of the several towns of this state, at the times and in the manner prescribed by the eleventh chapter of the first part of the Revised Statutes for the election of supervisor and other town officers required to be elected by ballot. (Laws of 1829, ch. 356, § 1; 1 R. S., 7th ed, 810.)

Certificate of election.]—The clerk of every town meeting, at which an election for justice of the peace shall have been had, must, within ten days thereafter, transmit to the clerk of his county, a certificate of the result of such election, under his hand, which shall be evidence of the facts therein certified. (Id., § 2.)

Justices, when to enter on their duties.]-The persons so elected justices of the peace shall enter upon the duties of their respective offices on the first day of January next succeeding their election; and in case more than one justice shall be elected, in any town, at the same election, their term of office shall be determined by lot, in the manner provided by law, before the commencement of such term. (Id., § 3.) Justices to supply vacancies.]--Whenever one or more justices of the peace shall be elected in any town in this state, to supply a vacancy or vacancies at the time existing, or in any new town, such justice or justices may take the oath of office, and forthwith enter upon the duties thereof. (Laws of 1830, ch. 290, § 1; 1 R. S., 7th ed., 810.)

Where more than one is elected.]-In case more than one justice of the peace is elected in any town at the same election, their terms of office shall be determined by lot, within twelve days after their election, in the manner now provided by law. (Id., § 2.)

Vacancies in office; when to be filled by appointment.]-Whenever a vacancy shall occur in the office of justice of the peace of any town in this state, the supervisor, town clerk and remaining justices of the peace, or a majority of such officers, are hereby authorized, by warrant under their hands and seals, to appoint a suitable person to fill said vacancy, and the person so appointed shall hold said office until the next regular annual town meeting in said town, unless the said appointment shall have been made to fill the vacancy of an officer whose term of office would have expired on the 31st day of December next succeeding such appointment; in which case the term of office of the person so appointed shall expire on the 31st day of December next succeeding such appointment. And any person so appointed may at once qualify and enter upon the discharge of the duties of his office. (Laws of 1859, ch. 476, § 1, as amended by L. of 1875, ch. 166; 1 R. S., 7th ed., 823.)

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