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Ex Parte Simmons

July 1912

IN THE MATTER OF THE APPLICATION OF CHARLES SIMMONS, EARL SIMMONS, AND BERT SIMMONS, FOR A WRIT OF HABEAS CORPUS.


Salter & Robins, for Petitioners.

Cleveland H. Baker, Attorney-General, for Respondent.

By the Court, Norcross, J.:

This is an original proceeding in habeas corpus. Prior to the hearing on the writ before this court, application for a writ was made to the chief justice and a writ issued returnable before Hon. T. F. Moran, district judge. Hearing was had upon that writ, and the discharge of the petitioners denied, whereupon the application was made to this court. The facts were stipulated and the presence of petitioners waived by respective counsel.

The following are the agreed facts upon which the petitioners rely for their discharge: “That on the 26th day of July, 1912, a complaint under oath was duly filed in the Justice Court of Mazuma Township, in and for the County of Humboldt, State of Nevada, charging the said petitioners with the crime of riot, and that such complaint charged the offense of riot. That thereafter the defendants were brought into court, by virtue of a sufficient warrant, issued upon said complaint, and were arraigned and pleaded not guilty to said offense, and that thereafter the said defendants made an affidavit and motion for a change of venue from said court on the ground that the justice thereof, namely, R. H. Young, was so prejudiced against them that thereafter, and on the same date, the said Justice Young, being then and there a material witness on behalf of the state in the trial of the cause then pending, and feeling disqualified for said reasons to try said cause, invited B. L. Hood, justice of the peace of Lake township, in and for said

[34 Nev. 493, Page 495]

county, to hear and try said cause, under the provision of section 4926, Revised Laws of the State of Nevada. That thereafter said defendants were tried in said court before B. L. Hood, acting as such justice of the peace, as aforesaid, and were thereafter convicted of the crime of rioting, and were by said court duly sentenced to serve the term of thirty days in the county jail of Humboldt County at Winnemucca, State of Nevada, and that a commitment, due in form, was by the said B. L. Hood thereupon issued, and that under and by virtue of said commitment the said defendants were on the 27th day of July, 1912, delivered to be and ever since have been, and now are, in my custody as the sheriff of Humboldt County, State of Nevada, and that the term of their sentence has not expired. That thereafter, and within the time allowed by law, the said defendant duly perfected an appeal from said judgment to the Sixth Judicial District Court of the State of Nevada, and said appeal is now pending in said court, but no bond on said appeal has ever been approved, although the same was fixed by said Justice R. H. Young at the sum of $300 each.”

It is the contention of counsel for petitioner that the justice of the peace of Mazuma township had no authority, under the provisions of section 4926 of Revised Laws, to call in another justice of the county to preside in his court and try petitioners, for the reason that the facts did not present a situation authorizing the calling of another justice within the meaning of that section. In addition to taking a contrary view as to the construction of the statute, the attorney-general contends that the justice of the peace of Lake township, while presiding in the justice's court of Mazuma township in the trial of petitioners, was at least the de facto justice of that court for the time being, and his authority therefore not open to collateral attack in this proceeding.

Section 4926 of Revised Laws provides: “Whenever any justice of the peace, in consequence of ill health, absence from his township, or other cause, shall be prevented from attending to his official duties, it shall be

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lawful for him to invite any other duly qualified justice of the peace of the same county to attend to his official duties, including that of registry agent, instead of such absent or disqualified justice of the peace; provided, such temporary vacancy, resulting from absence or disqualification, shall not be filled for more than thirty days at any one time.”

Counsel for petitioners rely solely upon the proposition that the fact that the justice of the peace of Mazuma township was a material witness for the state against petitioners and deemed himself prejudiced against them was not a disqualification within the meaning of the words “or other cause,” used in the section of the statute supra, and therefore he was without authority to call in another justice to preside, and, for that reason, such other justice was without power to try petitioners upon the complaint against them, and the judgment of guilty and sentence thereon was coram non judice and void.

If, as contended by the attorney-general, the justice of Lake township, while presiding in Mazuma township upon the trial of petitioners, was the justice de facto for the time being of said Mazuma township, the judgment against petitioners was valid, and the authority of such de facto is not open to collateral attack upon a proceeding in habeas corpus. (Walcott v. Wells, 21 Nev. 47, 9 L. R. A. 59, 37 Am. St. Rep. 478; Ex Parte Fedderwitz, 62 Pac. 935; In re Corrigan, 37 Mich. 66; Ex Parte Parks, 3 Mont. 426; In re Johnson, 15 Neb. 512, 19 N. W. 594; In re Radl, 86 Wis. 645, 57 N. W. 1105, 39 Am. St. Rep. 918; 24 Cyc. 416.)

This court in a number of cases has had occasion to consider what constitutes a de facto officer. In Walcott v. Wells, supra, it was said: “What constitutes a de facto officer? This court, in Mallett v. Uncle Sam G. & S. M. Co., 1 Nev. 197, said that an officer de facto is on the one hand distinguished from a mere usurper of the office, and on the other ...


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