Opinion
9034
March 13, 1915.
Before GARY, J., Laurens, June, 1914. Affirmed.
Appeal by Charley Hondros from a judgment of the Court of General Sessions affirming a judgment rendered by a magistrate for the forfeiture of twelve boxes of cigars exposed for sale on Sunday. The exceptions were as follows:
I. Because his Honor, F.B. Gary, erred in overruling the defendant's exceptions to the judgment of the magistrate and in confirming the said judgment.
II. Because his Honor erred in finding that the defendant did publicly cry, show forth, or expose for sale any wares, merchandise, fruit, herbs, goods or chattels on the Lord's day in violation of sec. 699 of vol. II of the Code of 1912, and there was no testimony tending to show that the defendant did at the time charged violate the said section, but he should have held that he only sold two cigars to one of his boarders as an incident to his meal furnished.
III. Because his Honor erred in not holding that the magistrate had no jurisdiction to pronounce the sentence of forfeiture of the twelve boxes of cigars for the selling of only two cigars from the show case, as the said section 699 does not provide that the magistrate could sentence the defendant to pay a fine not exceeding one hundred dollars or imprisonment for a term not exceeding thirty days and that the said section 699 and the punishment laid down in said section of forfeiture is in violation of sec. 21, art. V, of the Constitution of 1905.
IV. Because the said section 699 is violation of article I of the amendments to the Constitution of the United States respecting an establishment of religion.
V. Because the said section 699 and the judgment of the magistrate and his Honor, the Circuit Judge, in pronouncing a forfeiture of twelve boxes of cigars for selling two cigars are in violation of section 8, article I, and section 19 of article I of the Constitution of this State prohibiting the forfeiture of estates by a conviction and prohibiting the imposition of cruel and unusual punishments and excessive fines.
VI. Because said section 699 and the judgment of the magistrate and of his Honor, the Circuit Judge, are in violation of the fifth and fourth amendments to the Constitution of the United States and of section 5, article I of the Constitution of this State declaring that no law shall be passed or enforced by this State or any other State depriving any person of his property without due process of law or denying person the equal protection of the law.
VII. His Honor erred in not overruling the judgment of the magistrate and in not dismissing the prosecution.
VIII. Because his Honor erred in finding that the defendant did publicly cry, show forth, or expose for sale twelve boxes of cigars of the value of $14.15 contained in defendant's show case and he should have overruled the judgment of the magistrate in holding that the defendant did publicly cry, show forth, or expose for sale the said quantity of cigars, and his Honor erred in dismissing defendant's appeal and in remanding the case to the magistrate for further proceedings.
Messrs. W.B. Knight and F.P. McGowan, for appellant.
Mr. Solicitor Cooper, for respondent.
March 13, 1915. The opinion of the Court was delivered by
Conviction before a magistrate's Court for violation of the Sunday laws, as written in section 699 of the Criminal Code of Laws, 1912; appeal to the Circuit Court and the magistrate's judgment there affirmed; appeal here.
The appeal is totally without merit; the judgment below is manifestly right.
The defendant is a native of Greece; it does not appear if he is a citizen of the United States. If he is a citizen of the United States he ought to obey the laws of the State; if he is not a citizen of the United States he must obey the laws of this State.
The exiles and martyrs who first settled this territory fixed their character upon its laws; and those who now come hither must conform thereto, until at least, unhappily that character may be changed.
There are eight exceptions; but the appellant has argued upon only five, and four of those five involve issues under the State or Federal Constitutions. Let the exceptions be reported.
The following constitutional enactments are invoked:
State: (1) Art. V, sec. 21, as to a magistrate's jurisdiction.
(2) Art. I, sec. 8, as to a forfeiture of estate.
(3) Art. I, sec. 19, as to excessive fines.
(4) Art. I, sec. 5, as to due process of law.
(5) Art. I, sec. 4, as to establishment of religion.
Federal: (6) Fourth amendment, as to unreasonable seizures.
(7) Fifth amendment, as to due process of law.
The appellant has cited no case and no text to sustain his exceptions about these constitutional enactments; he has simply thrown them in as drag nets, and we are disposed to take them out in like manner.
It is sufficient to say the second, third and sixth cited enactments have no relevancy to the facts of the case at bar.
The seizure and forfeiture here was of twelve boxes of cigars, partially filled, aggregating 283 cigars, worth $14.15. The argument of counsel is that "if the magistrate could pronounce a forfeiture of twelve boxes he could, under the same modus operandi, forfeit one thousand boxes, a power void under the principle of reductio ad absurdum."
If there be an absurdity, it lies in the contention that the power to do a reasonable thing involves also the power to do an unreasonable thing.
The fourth and seventh enactments only save to a person the right to be brought into Court, and to have the chance there to establish any fact which by the law of the land would protect him and his property.
The statute in question, and the trial for its violation, does not impinge upon those constitutional enactments.
The fifth enactment has over and again been construed, and against the contention of the appellant. City v. Benjamin, 33 S.C.L. (2 Strob.) 521; Cain v. Daly, 74 S.C. 480; 55 S.E. 110; State v. James, 81 S.C. 198; 62 S.E. 214; 18 L.R.A. (N.S.) 295n.; 16 Ann. Cas. 277.
The first enactment has reference to a magistrate's jurisdiction; and the exact contention is, that in the case at bar the magistrate went beyond the limit fixed by these words of the Constitution, "jurisdiction (to be prescribed by the General Assembly) shall not extend to cases where the punishment exceeds a fine of $100.00 or imprisonment for sixty days." Const., art V, sec. 21.
At section 20 of the Criminal Code the General Assembly has fixed the jurisdiction of a magistrate in these words: "They shall have jurisdiction of all offenses which may be subject to the penalties of either fine or forfeiture not exceeding one hundred dollars," etc.
But the same chapter of the Criminal Code, which enacts the Sunday law, expressly confers on magistrates "power and authority to summon before him any person who shall offend * * * and upon proof * * * the said magistrate shall give a warrant * * * to seize the said goods * * * put on sale * * * and to sell the same."
It has been held that the word "punishment," as used in the Constitution at art. V, sec. 21, does not include a forfeiture, such, for instance, as that prescribed by section 699 of the Criminal Code, Sunday statute. State v. Hunter, 79 S.C. 91, 60 S.E. 226.
That statute does not make the selling of goods on the "Lord's Day" a crime, punishable by fine or imprisonment; it directs the magistrate to proceed against the goods and to forfeit them to the county; there is no punishment of the vendor by fine or imprisonment imposed by the statute; the vendor is not arrested upon a warrant issued, he is "summoned" before the magistrate, judgment is in rem, and the person of the vendor goes free.
The procedure is not that prescribed by section 28 of the Criminal Code.
The statute prescribed no other process or procedure by which the sale of goods on the "Lord's Day" may be stopped.
Unless a magistrate may proceed to do it, no officer may.
That statute confers the jurisdiction, and the Constitution does not limit the jurisdiction; the jurisdiction is, therefore, lawful to be exercised.
The judgment of the Circuit Court is, therefore, affirmed.