Opinion
No. 34440.
May 12, 1941.
1. CRIMINAL LAW. Justices of the Peace.
Ordinarily, jurisdiction granted by the constitution to justices of the peace is limited to districts for which they are elected (Const. 1890, sec. 171).
2. COURTS.
Generally, the source of judicial power must be found in the constitution rather than in legislative acts.
3. COURTS.
Under article of constitution respecting the judiciary, it was intended to parcel out to respective courts created or authorized therein the entire judicial jurisdiction of the state (Const. 1890, sec. 144 et seq.).
4. CONSTITUTIONAL LAW.
A state constitution does not grant specific legislative powers, but limits them.
5. CONSTITUTIONAL LAW.
The legislature possesses all legislative powers not prohibited or restricted by the state or federal constitutions, and such power extends to circumstances not covered by constitutions.
6. CRIMINAL LAW. Justices of the Peace.
The Supreme Court will take judicial knowledge of fact that justices of the peace are often disqualified under constitutional provisions and that there are many districts in Mississippi where at present time, and for years in past, there is and has been no justice of the peace (Const. 1890, sec. 165).
7. CRIMINAL LAW. Justices of the Peace.
The statute providing that justices of the peace shall have jurisdiction concurrent with circuit court of county over crimes occurring in their districts where punishment does not exceed certain limits and that if there is no justice of the peace in district in which a crime is committed who is qualified to try accused any justice of the county shall have jurisdiction over crime is valid (Code 1930, sec. 2097).
8. CRIMINAL LAW. Justices of the Peace.
A defendant who committed a misdemeanor in a county supervisors' district could be tried by a justice of the peace in an adjoining district in the county where there was no justice of the peace in district where offense was committed (Code 1930, sec. 2097; Const. 1890, secs. 24, 165, 171).
APPEAL from the circuit court of Wilkinson county, HON. R.E. BENNETT, Judge.
W.F. Tucker, of Woodville, for appellant.
Section 171, Constitution of the State of Mississippi, provides: "A competent number of justices of the peace and constables shall be chosen in each county in the manner provided by law, for each district, who shall hold their office for the term of four years . . . and they shall have jurisdiction concurrent with the circuit court over all crimes whereof the punishment prescribed does not extend beyond a fine and imprisonment in the county jail.
Section 2069, Code of 1930, as amended by Chapter 174, Laws of 1932, requires that one justice of the peace shall be elected for each district by the electors thereof. This requirement is commandatory by both the constitution and the legislature.
Section 2097 states that . . . "but if there be not a justice of the peace in the district in which any crime is committed qualified to try the accused, any justice of the peace of the county shall have jurisdiction thereof." The word "crime" as used in this statute means a crime extending beyond a fine and imprisonment in the county jail and does not include a person on trial for a misdemeanor.
The affidavit gave the appellant no notice of why he was tried out of the district in which he lived and was a householder. If there was no justice of the peace elected for the said Fourth District, then the defendant could be tried in the Circuit Court only on an indictment returned by the grand jury.
Venue is a jurisdictional question and can be raised for the first time in the Supreme Court, and the jurisdiction must be affirmatively shown by the state in every case.
Childres v. State, 136 Miss. 829, 101 So. 857; Slaton v. State, 134 Miss. 419, 98 So. 838; Pickle v. State, 137 Miss. 112, 102 So. 4.
A.M. Byrd, Assistant Attorney General, for appellee.
Appellant did not file in the circuit court a demurrer to the affidavit charging him with the unlawful possession of the wine. Therefore, by virtue of the provisions of Section 1206, Code of 1930, he failed to properly present the question he has here argued, and he waived any amendable defect in the affidavit, and the improper or imperfect statement of venue is an amendable defect.
Sec. 1208, Code of 1930; Evans v. State, 144 Miss. 1, 108 So. 725; Smith v. Town of Oxford, 91 Miss. 651, 45 So. 365; Burnett v. State, 72 Miss. 994, 18 So. 432.
Since Section 2097, Code of 1930, provides that any justice of the peace of the county shall have jurisdiction of any crime committed in any district in which there be not a justice of the peace qualified to try the accused, it is apparent that the language is inclusive enough to permit any justice of the peace in the county to try one accused of crime after he has been properly charged by affidavit before a justice of the peace of the district in which the crime was committed.
It is within the power of a justice of the peace to lawfully take an affidavit charging the commission of a crime in the district of another justice of the peace and to lawfully issue a capias for the arrest of the accused, returnable before the justice of the peace of the proper district.
Goffredo v. State, 145 Hiss. 66, 111 So. 131; Falkner v. State, 134 Miss. 101, 98 So. 345; Sec. 2072, Code of 1930.
The contention of the appellant that the word "crime" as used in the latter part of Section 2097, Code of 1930, refers to justices of the peace as conservators of the peace is not tenable, and the appellant cites no authority to sustain his contention. The jurisdiction of justices of the peace as conservators of the peace throughout their county is given and fixed elsewhere in our law, to-wit, Section 1320, Code of 1930.
When Section 2097, Code of 1930, is measured against both Section 171 and Section 172, Constitution of 1890, the latter authorizing the establishment of inferior courts, it becomes apparent that the statute was within the constitutional power of the legislature to enact and is a valid statute.
Hathaway v. State, 188 Miss. 403, 195 So. 323; Gober v. Phillips, 151 Miss. 255, 117 So. 600; Simpson v. Boykin, 118 Miss. 701, 79 So. 852; Hughes v. State, 79 Miss. 77, 29 So. 786; Bell v. McKinney, 63 Miss. 187; Stowlenwerch v. Eurie, 119 Miss. 854, 81 So. 594.
This court will not be circumspect about the mechanics of how a justice of the peace court acquired jurisdiction, where it did have jurisdiction of the subject matter and the person of the accused, because "great liberality is necessarily allowed to justice of the peace courts in the matter of pleading and practice."
Holley v. State, 74 Miss. 878, 21 So. 923.
Appellant was convicted of a misdemeanor which was committed in Supervisors District No. 4, in Wilkinson County. There was no justice of the peace in that district and appellant was charged before and tried by a justice of the peace in District No. 1 of the County, an adjoining district, as allowed by Section 2097, Code 1930, which reads as follows: "Justices of the peace shall have jurisdiction concurrent with the circuit court of the county over all crimes occurring in their several districts whereof the punishment prescribed does not extend beyond a fine and imprisonment in the county jail; but if there be not a justice of the peace in the district in which any crime is committed qualified to try the accused, any justice of the peace of the county shall have jurisdiction thereof."
Appellant urges that no justice of the peace can have jurisdiction of a misdemeanor committed in a particular supervisor's district other than a justice elected or appointed in and for that district, and he cites Childres v. State, 136 Miss. 829, 101 So. 857 and Section 171, Constitution 1890, in support of that contention. He says that when there is no justice of the peace in a district, the only valid manner by which a misdemeanor committed in that district may be prosecuted is by indictment in the circuit court.
Under ordinary circumstances it is true, as held in Riley v. James, 73 Miss. 1, 3, 18 So. 930, that the jurisdiction of justices of the peace granted by the Constitution is limited to the districts for which they are elected; and as a general proposition it may be conceded that the source of judicial power must be found in the Constitution rather than in legislative acts, and it may be further conceded that in Art. 6, Const., 1890, as mentioned in Houston v. Royston, 7 How. 543, it was intended to parcel out to the respective courts created or authorized therein the entire judicial jurisdiction of the State, and that none was left undisposed of.
But this may be satisfied only on the assumption that there will be a qualified person, present and acting, in every judicial position and within every territorial unit provided by the Constitution. The Constitution did not require that there should be more than one justice of the peace in any supervisor's district and it expressly provided by Section 165 that "no judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties." The section then proceeded to provide for cases wherein a judge of the supreme court or of a superior court is disqualified or unable to preside, but no such provision was made for the emergency created by the disqualification of a justice of the peace, or where there is no such officer in the district at all.
Suppose, then, that a plaintiff has a legal demand, in an amount not exceeding two hundred dollars, accruing within a certain supervisor's district against a resident of that district, and the justice of the peace in the district is disqualified under Section 165 of the Constitution. The suit could not be instituted in the circuit court because that court has no original jurisdiction of civil causes involving two hundred dollars or less in amount, and it could not be tried in the justice court of the district because there is no justice of the peace therein qualified to try it. The Constitution makes no specific provision for such a case, yet by Section 24 the Constitution ordains that "all courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay."
Inasmuch as the Constitution made no provision for cases such as mentioned in the foregoing paragraph or for cases where there is no justice of the peace in the district, the general legislative power and authority must be allowed to step in and to fill the constitutional hiatus or gap. It is to be remembered that a state constitution does not grant specific legislative powers, but limits them, and that the lawmaking department possesses all legislative powers not prohibited or restricted by the state or federal constitution, and certainly the power extends to circumstances not covered by the constitutions at all.
The court will take judicial knowledge of the fact that justices of the peace are often disqualified under Section 165 of the Constitution, and that there are many districts in the State where now, and for years in the past, there is and has been no justice of the peace. There is not enough business in these districts to justify any qualified person in accepting the position, and it remains vacant, for no man can be compelled to take any civil office. Hence the Legislature of necessity has enacted statutes covering such situations, one of which is Section 2097, Code 1930, above quoted, and which we must hold to be within the legislative power, and thus entirely valid.
Affirmed.