Opinion
No. A-7799.
Opinion Filed April 12, 1930.
Justices of the Peace — Law Relating to Number of Justices Held not Effective Prior to Next Election. Section 3424, Comp. Stat. 1921, as amended by chapter 246 of the Session Laws Sp. Sess. 1929, provides only for the number of justices of the peace subsequent to the election following the enactment of such amendment. It does not limit the number prior to the next election, nor create vacancies in the offices of justices of the peace as they then existed.
Original application for writ of habeas corpus by Tony L. Axtell. Writ denied.
Conner Conner, for petitioner.
J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the sheriff of Oklahoma county. That he was informed against in the district court of Oklahoma county with a felony, to wit, assault with a dangerous weapon, was convicted and sentenced to serve a term of one year. That he was denied a preliminary trial, although the question was duly presented to the trial court. Without considering whether the question is one that can be raised by habeas corpus, the case will be disposed of on its merits.
Article 7, § 1, and article 7, § 18, of the Constitution, create and provide for the offices of justices of the peace. Section 17, art. 2, requires a preliminary or waiver thereof in all felony cases prosecuted by information. Section 3424, Comp. Stat. 1921, provides the number of justices of the peace in cities having more than 25,000 inhabitants, and, by the terms of this section, Oklahoma City had nine justices of the peace. This section was amended by chapter 246, Session Laws Sp. Sess. 1929, which is as follows:
"Section 3424. Each incorporated city or town, having more than one thousand five hundred inhabitants shall constitute a justice of the peace district; and there shall be elected therefor, as provided in this article, one justice of the peace and one constable; provided that in all cities of more than twenty-five hundred inhabitants, two justices of the peace and two constables shall be elected; and provided further, that in cities of more than twenty-five thousand inhabitants there shall be elected an additional justice of the peace, and an additional constable for each fifty thousand inhabitants, or major fractional part thereof in excess of the said seventy-five thousand (75,000) inhabitants, according to the last federal census."
This act also carried an emergency section.
It is the contention of petitioner that this act reduced the number of justices of the peace from nine to four, and in effect made vacant all the offices of justices of the peace of Oklahoma City, and that the preliminary of petitioner was not before a justice of the peace, but before a private person assuming to act as a justice, and is a nullity. This contention cannot be sustained. Section 3424, supra, as amended, provides only for the election of justices of the peace thereafter, and does not purport to limit the number prior to the election following the enactment of chapter 246, Session Laws Sp. Sess. 1929, supra. The justices of the peace then in office continue as such until the next election.
The writ is denied.
DAVENPORT and CHAPPELL, JJ., concur.