In re Buddington

The Court

held that proceedings under this statute are not strictly criminal in their nature; that the provision of *474 the statute as to the general criminal jurisdiction of a justice of the peace does not operate as a limit to his jurisdiction as expressly given by the act in question, ■which stands by itself and relates to a special proceeding; that as there is no constitutional provision limiting the jurisdiction, which this act infringes, the legislature had authority to confer the jurisdiction upon a justice of the peace, and to regulate the extent of punishment to be inflicted under these special proceedings, as they have expressly done by the statute in question.

The objection that the mittimus does not show that the offense charged was one authorizing the sentence, for the reason that it does not fairly import that the prisoner had been twice before convicted of a similar offense, is not well taken. The word “ offense ” and the expression “ third offense ” are so used in the statute in different connections as to signify that what is intended is an “offense” or the “third offense” which has been legally ascertained and determined, in which sense the term “ third offense ” is equivalent in meaning to the- term third conviction for a similar offense; and the justice cannot be required to be anymore technically accurate in the use of terms than the statute itself.

The proceedings before the commissioner are no bar to these proceedings. Whether they would be in a case of which the commissioner had jurisdiction and authority to determine need not be considered. But under our constitution a circuit court commissioner has no authority to issue a writ of habeas corpus where the inquiry contemplates the review or investigation of the proceedings of a judicial tribunal; since this involves the exercise of judicial power in its strict legal sense, which under the constitution can be conferred only upon courts; and would in effect give .the commissioner appellate jurisdiction.

The question whether the statute®authorizing commissioners to issue the writ of habeas corpus conflicts with the constitution is not involved; for construing the statute in *475 connection with the constitutional provision, it will be understood as authorizing the issue of the writ by these officers in such cases only as are not embraced within the reason of the inhibition involved in the provision of the constitution.

Nor is the question of the authority of circuit judges to hear proceedings on habeas corpus while not holding regular sessions of court involved; since, where the whole power of the court is conferred upon the judge, it is questionable, at least, whether he has not authority -to act in the premises at other times as well as in open court, the action being that of the individual in whom is vested for the time being the whole judicial power and authority of the court.

The prisoner is remanded into custody.