The appellant's contention, in substance, is that, the judgment of the court below should be reversed, for the reason that the justice of the peace in whose court the prosecution was begun was disqualified from trying the case, because his compensation for so doing depended on the conviction of the appellant.
This contention rests on section 171 of the state Constitution and the due process clause of the Federal and state Constitutions. Section 171 of the state Constitution provides that:
"No justice of the peace shall preside at the trial of any cause where he may be interested, . . . except by the consent of the justice of the peace and of the parties." *Page 738
Leaving out of view section 261 of the state Constitution, which seems to permit the taxing of the fees of a justice of the peace against persons convicted by him of the commission of crime, and assuming that the justice of the peace before whom this prosecution was begun was disqualified from trying the appellant, he cannot now complain thereat, for the reason that he will not, and cannot, be called on to pay the fine, or suffer the imprisonment imposed on him by the justice of the peace. The fine and imprisonment that he will here be called on to pay and suffer were imposed by a court to which he appealed from that of the justice of the peace, presided over by a competent judge, and which determined his guilt or innocence uninfluenced by the judgment of the justice of the peace. Such was not the case inTumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243.
I am of the opinion that the judgment of the court below should be affirmed.