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Show A LEGAL DECISION DKHICATED TO ASSOCIATE JI'.sriCE IIAWI.EY. A a comproni:e to 1 1 te wrU-ri-mcm-bored and recently-given iKcision of judge Hawley, iu the nieuiorable city case of Peter vs. Jeter, or P. is. J., us to whether judge Clinton cad or was not an cx-ojjkio justice of llie peace, and all ou account of a ebirographical error by which his name waa spelled Peter instead of Jeter, and involving the failure ol' governor Shaffer to furnish fur-nish him a com minion after his election, elec-tion, we print tha following from the Chicago Tribune. An the decision herein given U the opposite in fuel to that of judge Hawley, we commend it to his honor's consideration, which we believe he will be sure lo give it, inasmuch inas-much a it comes from Illinois; and not only from Illinois, but from Chicagothe Chi-cagothe Garden city, ami the scene o!' his honor' a loicn.sic triumphs before be-fore he entered upon the businen of nit wishing the world by elongated opinions, lleiu 'u the ducUion, rendered ren-dered in the circuit court: Judge I tod gel's, yesterday, rendered his opinion and judgement iu the proceeding pro-ceeding by hahrat corpus bused upon the denial of tho right of John Sum-nierfh'ld Sum-nierfh'ld to act ns a justice of the pence. lie sustained the mittimus, holding that under it the sheriff rightfully right-fully retained tho relator, Amanda i. Thompson,. iin (sua tody. She was, therefore, remanded to the eennty jail. The court did not, however, dfeide- the iUcstion upon which the opinion was sought, that question 1 eiug whether Summetliold acted legally as a justice of the pL'iica, or is in fact, by law. such an oiheer. The opinion is as follows: It appears by the petition lor the writ of haln,.'.in corpus, filed by Amanda ii. Thompson, the return of the sherifl to said writ, and tho copy of the Miti-mi's Miti-mi's under which she was committed, that said petitioner was examined ho ford John Summerlicld, act in f as police ni a iris, (rate, upon a charuo of larceny; that she was found guilty of tho charge, and held to answer in the criminal court, and, failing to give bail, was enmmittcd to the custody of the sheriff, by whom she is detained in jail. Her dischargo is sought upon the alleged ground that Summerficld nt the time he examined tho charge, and issued the mitiinus, was not a juotice of the pence of Uook oounty. Tt was agreed, upon hearing, that Summer-field Summer-field was a regularly elected and commissioned com-missioned police magistrate of the oity of Chicago soae yea: sago; that ho was not appointed a justice of tJto peace by tho governor, under tho constitution; and that at the general election duly called and held in November, 1S71, ho he was elected a polico magistrate for the cily of Chicago, took the oaih of office, and gave bonds as suuh;but, that the governor of the State baa failed to issue a commission to him as such police magistrate, and I hat. the common com-mon council of the city has designated him to act as police magistrate for the south division of the city. I(. ol so appeal's ap-peal's that he was acting in lhaL rapacity rapac-ity at the time he issued the mittimm under which the petitioner is held, although al-though he signs it "J. Sumuierfield, justice ofthe peace." i The question as to his riht lo the office, whether he held an otlice dejure, was the only one tli.cuscd by the learned gentlemen appearing for and against the petitioner, and seemed to be the only one upon which a deeiion by the court was desired. But, in the view of the case taken by me, 1 do not feel that it is either right or proper pro-per that I should undertake to decide that question. It is not. necessary to the disposition ofthe cise, and as Mich a decision would not settle the disputed right to tho otlice, I do not feel inclined in-clined to investigate it fully, or declare my opinion upon it. There is more than one legal proceeding by which it can be finally and fully determined whether Summerfiold is by legal right a police magistrate or justice of the peace. This proceeding is not one of them. John Summcrfield, as it appears, by the agreed statement of facts, was, down to the election held in November last t a police magistrate of this city, duly elected and commissioned; was at that election voted for and declared elected for anothcflcrin; executed bond as such; look the oath of office, and was subsequently designated by the common council of the city to act as police magistrate. He acted in that capacity, professing to be such olliccr. It has often been held by the courts of last resort, in several of the States, and, expressly so by the supreme court of this State, that where a person exercises ex-ercises the duties of an olliec, performing per-forming those functions by color of; office, he is an oflieer dt facto, and his right to the oll'tec cnunot be questioned collaterally. Sec Town of Lewislon v., Proctor, '2'6 Ills., .Vj(; also the People ci rel., v. Mark Jaue?, '24 Ills., 184, in which it was decided that although judge .Bangs was not judge of the circuit court de jure, his eleelion not being au-j au-j thorized by the constitution and therefore there-fore void, yet he had color of otlice, land acting as he did under that color liis acts were valid. The court, j however, decidwd that he did not hold j the ouVe. of judge de jure, and ou&led him. This was a proceeding to determine deter-mine who was really and legally the judge; and, if it is desired to test tho same question so far as John Summerlicld is concerned, the way is open and clear. In Maynard'seax', 1 -I Ills., 410, the nupreuie court decided that one holding ofiice under an old law, which did not make him a justice of the peace, could not be Mich jii-iieounder the then new constitution. That was also a direct proceeding to test ibo question of right, ttnd the court held thut ho was md a justice of the peace r jure. "But," ,-ays the court, in referring to ihis Maynutd cae, wli-:n deciding the Proctor ea.se, "had he assumed to act under his commission as justice of tho pcatv, it by no means follows that we .-hould have held hia act void." Thcbe authorities aie eoncluii'.e of (ho question presented here. 1 am I'Ound by them, aud whatever opinion I may entertain upon the right of Summerlicd to office, 1 am decidedly of opinion that this act, under-color of "'fl'Mc, in committing Mk! petitioner, Was U'd Void. |