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for, though a magistrate is protected by the law whilst he is in the execution of his office ; yet, in this instance, he hath forfeited that protection by beginning a breach of the peace himself. 3 Burn's Justice, 34.
OF THE ELECTION AND OFFICE OF JUSTICE OF THE PEACE
IN THIS STATE.
By the ordinance for the government of the territory of the United States north-west of the Ohio river, it is provided that, “previous to the organization of the general assembly, the governor shall appoint such magistrates and other civil officers in each county or township as he shall find necessary for the preservation of the peace and good order in the same. After the general assembly shall be organized, the powers and duties of magistrates, and other civil officers, shall be regulated and defined by the said assembly; but all magistrates and other civil officers, not herein otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor.”
During the period of the territorial government, the magistrates exercised such powers as they were invested with by the common law and the laws for the government of the territory.
By Art. IV., Sec. 8, of the constitution of this state, it is declared that “ a competent number of justices of the peace shall be appointed in each county in such manner as the general assembly may direct, whose time of service, power, and duties shall be regulated and defined by law; and justices of the peace, when so appointed, shall be commissioned by the governor.”
By the first section of the act of Feb. 19, 1819, it is enacted “that the house of representatives shall nominate to the senate a competent number of persons in each county to be appointed justices of the peace, and, if the nomination shall be confirmed by the senate, the governor shall commission the persons so nominated and confirmed, during good behavior : Proviled, however, that, hereafter, when the general assembly shall not be in session and any vacancies shall happen, by death, resignation, or otherwise, or when an additional number of justices shall be required in any county, it shall be the duty of the county commissioners, in their respective counties, to nominate fit persons to fill such vacancies, and to report such additional number to the governor, who shall, thereupon, issue commissions to the person or persons so nominated, and that persons so appointed shall hold their office until the end of the next general assembly."
By the second sec. of the act of Dec. 30, 1826, it is enacted, that “it shall be the duty of the courts of county commissioners of each county in this state, at their next June term, to divide their respective counties into a convenient number of districts, not less than two nor more than eight, distinctly defining the boundaries of each district, giving to each a name, to appoint a place therein for holding the elections hereinafter mentioned, and to cause the same to be entered of record in their respective courts. Should any of said courts fail or neglect to lay off their county into districts as aforesaid, at their said June term, it shall be their duty to call a special term of the court for that purpose, and to proceed to lay off their county into districts in all respects as aforesaid. It shall be the duty of the clerks of said courts respectively to make out, forth with, as many copies of said records as there shall be districts in his county, and to deliver the same to the sheriff, whose duty it shall be, within ten days after the close of the term of the court at which the county shall be so divided into districts, to post up, at the place appointed for holding elections in each of said districts, one of said copies.” Gale's Stat., 399.
"SEC. 3. The said courts shall, respectively, at their said June term, and at their June term every fourth year thereafter, appoint three electors in each of said districts to be judges of election therein; and should any of said courts, at any such term, fail to appoint judges of election, it shall be their duty to call a court for that purpose : and judges of election who shall be appointed as aforesaid shall continue in office for four years, and until their successors shall be appointed. When a vacancy shall happen in the office of judge of election, or when any such judge shall fail to attend, or refuse to serve, the vacancy shall be filled, or the judge appointed, in the manner prescribed in like cases by the general election law. The said judges, and all other judges to be appointed by this act, shall give the notice of election, be qualified, appoint clerks, who shall be qualified; and the elections hereinafter mentioned shall be conducted, returns thereof made, opened, examined, abstracts thereof made and transmitted to the office of secretary of state, in the manner prescribed by law for the election of sheriff; and the said judges of election shall be notified of their appointment in the manner prescribed for notifying other judges of election; Provided, That nothing in this act shall be so construed as to give the judges of the clection or clerks any compensation for their services."
* SEC. 4. An election shall be held in each of said districts, on the first Monday in August next, and on the first Monday in August every fourth year thereafter, for two justices of the peace in each of said districts, except the district in which the county seat shall be, in which district there shall be three justices of the peace elected; and the justices so elected, shall continue in office for the term of four years, and until their sucsessors shall be elected and qualified to office, respectively; at which election the inhabitants of a district qualified to vote at the general election, shall be entitled to vote. The persons receiving the highest number of votes in a district, shall be declared duly elected.” Gale’s Stat., 400.
By the seventh sec. of the act of Jan. 13, 1829, it is enacted, that “ It shall be lawful for the county commissioners' court, of any county of this state, when they may deem it necessary, to cause an election to be held of one additional justice of the peace, and two additional constables, in the district which includes the county seat; such justices of the peace and constables to hold their offices until the next quadrennial election of justices of the peace and constables, at which time an election shall take place in such district for four justices of the peace and four constables; and all vacancies in the office of constable shall be filled by appointments made by the county commissioners' court: Provided, that a majority of the qualified voters of the district may petition the county commissioners court for that purpose.” Gale's Stat., 418.
By the fifth sec. of the act of Dec. 30, 1826, it is enacted that, “ When a vacancy shall happed in the office of justice of the peace in a district under this act, it shall be the duty of the clerk of the county commissioners' court of the county in which the vacancy shall so happen, to issue his order to the judges of election in the district, requiring them on a certain day, not less than twenty days from the date of such order, to hold an election to fill such vacancy; and the said judges shall, at the time appointed in said order, hold an election to filí such vacancy, and conduct the same, and make returns thereof, which shall be opened, examined, abstracts thereof made and transmitted to the secretary's office, in the manner directed in the fourth section.” Gale's Stat., 400.
“Sec. 6. When a new county shall hereafter be created it shall be the duty of the court of county commissioners thereof, at their first term, to divide the same into districts as aforesaid, and appoint judges of election, and a time and place for holding elections therein as aforesaid, and to cause the same to be entered of record; and if, from any cause, the said court shall fail or neglect the duty aforesaid, at their said first term, it shall be their duty to hold a special term for that purpose; and the clerk shall make out copies of such record, and the sheriff shall post up the same, as is provided in the second section of this act; and elections shall be held therein, for justices of the peace, returns thereof made, examined, and transmitted, in all respects as provided in the fourth section of this act; and justices of the peace so elected, shall continue in office until the next quadrennial election of justices of the peace, and until their successors shall be elected and qualified.” Gale's Stat., 401.
By the first sec. of the act of Jan. 13, 1829, it is enacted " That it shall be lawful for the county commissioners' court in the counties in this state, at any regular or special term, to lay off in their several counties as many districts, not exceeding eight, for the election of justices of the peace and constables, as they shall deem necessary and proper.” Gale's Stat., 417.
“ Sec. 2. When any district shall be so laid off, elections for justices of the peace and constables shall be held therein, in the same manner as is prescribed in the act to which this is a supplement; and the justices and constables elected in said districts shall continue in office until the next quadrennial election of justices of the peace and constables, and until their successors shall be elected and qualified.
“Sec. 3. When a vacancy shall happen in any district created in pursuance of this act, the same shall be filled in the mannér prescribed in the fifth section of the act to which this is a supplement.
“Sec. 4. The county commissioners' court, at any regular term, shall have power to alter the limits of the several districts in their respective counties, as the convenience of the county may require : Provided, no such alteration shall be made without petition from a majority of the qualified voters residing within the limits of the district proposed to be altered, and twenty days' public notice given of their intention to petition for such alteration.
“ Sec. 5. No alteration which shall be made in the districts shall prevent the justices of the peace or constables, in office at the time of such alteration, from serving out the time for which they may have been elected.”
By the first sec. of the act of Jan. 7, 1835, it is enacted “ That the county commissioners' court of the several counties of this state, be, and they are hereby authorized to increase the number of districts for the election of justices of the peace in their respective counties whenever they may deem the interest of the people require the same.” Gale's Stat., 426.
“ Sec. 2. The justices elected in said districts, shall be elected in the manner, and be subject to the provisions contained in the act to which this is an amendment.
“ Sec. 3. That so much of the act, to which this is an amendment, as limits the number of justices' districts to eight in each county, be, and the same is hereby repealed.”
The power and authority of justices of the peace are limited,
and can only be exercised within the county for which they are elected and are in commission. Dall. Justice, 24. Although elected in particular districts, they have a concurrent jurisdiction in all parts of the county. 2 Burn's Justice, 13.
By the ninth sec. of the act of Dec. 30, 1826, it is enacted that “ Justices of the peace, who shall be elected under the authority of this act, shall have jurisdiction in their respective counties, and shall be commissioned by the governor, and sworn into office, as now required by law.” Gale’s Stat., 401.
By the first sec. of the act of Jan. 7, 1831, it is enacted “ That no act of the present general assembly, nor any act which may hereafter be passed, forming a new county, or altering the boundaries of a county, shall be construed to affect in any manner the tenure of office of any justice of the peace or constable, but they may remain in office and continue to act as such in the new county, or county to which they may be transferred, for and during the term of time for which they were severally elected, commissioned, &c., as if no such alteration had taken place.” Gale's Stat., 422.
By the first sec. of the act of March 1, 1833, Gale's Slat., 422, it is enacted “That every justice of the peace elected after the first day of July, one thousand eight hundred and thirty-five, before he shall enter upon the duties of his office, shall execute and deliver to the clerk of the county commissioners' court, of the proper county, within twenty days after his said election, a bond, to be approved by said clerk, with one or more good and sufficient securities, in the sum of not less than five hundred nor more than one thousand dollars ; conditioned that he will justly and fairly account for and pay over all moneys that may come to his hands under any judgment, or otherwise, by virtue of his said office : and that he will well and truly perform all and every act and duty enjoined on him by the laws of this state, to the best of his skill and abilities. Said bond shall be made payable to the county commissioners of the county in which such justice of the peace shall be elected, and their successors in office, for the use of the people of the state of Illinois, and shall be held for the security and benefit of all suitors and others, who may be injured or aggrieved by the official acts or misconduct of such justice of the peace, which said bond shall remain in force for the term of five years after the expiration of his term of office.
“ Sec. 2. If any justice of the peace elected as aforesaid shall not, within twenty days after his election, give bond as aforesaid, said office shall be considered as vacant, and shall be filled accordingly.
“Sec. 3. Any person aggrieved by the failure of any justice of the peace to fulfil and comply with the condition of his said bond, may prosecute the said justice of the peace