Commonwealth v. Connor

Barker, J.

The complaint,addressed “to the Justice of the Second District Court of Essex,” purports to have been “ received and sworn to . . . before said court.” The jurat is signed “ William Smeath, Special Justice of said Court.” The warrant annexed to the complaint bears the seal of the court, and not the personal seal of William Smeath. The summons recites that complaint has been made “ before our Second District Court of Essex,” and also bears the seal of the court. The defendant moved in that court to quash the complaint, because it did not appear that when the complaint was received and summons issued the justice of the court was sick, interested, absent, or *135 otherwise disabled, or had requested the special justice to sit or act, or that the office of justice was vacant, the motion concluding with the argumentative allegation, “ and so if does not appear that said complaint was received, the warrant and summons issued, or any proceedings had before any magistrate having authority or jurisdiction.” This motion must have called the attention of the district court to the objection-urged against its jurisdiction, but no statement was inserted in the record to the effect that the court was not in session when the complaint was received, or that any fact existed which gave the special justice authority to hold a session of the court. The motion was renewed in the Superior Court, and no amendment of the record was there offered. From this we feel bound to infer that the complaint was received and the warrant and summons issued when the court was in session.

The authority of the special justice to receive complaints and issue warrants must be derived either from the statute, which provides that he may do so “when the court is not in session,” (St. 1888, c. 193, Pub. Sts. c. 154, § 22,) or from his power to hold a session of the court. The latter power exists only under special circumstances pointed out in the statutes, (Pub. Sts. c. 154, § 25,) and which must be stated on the record. Commonwealth v. Fay, 151 Mass. 380 .

The motion does not allege that the court was in session when the complaint was received; but as by our construction that fact appears from the record, and as the motion does allege that the record contains no statement showing that the court had authority to act when in session and held by a special justice, we think it sufficiently pointed out a jurisdictional defect, and should have been allowed.

Complaint dismissed.