Opinion
No. 34054.
April 8, 1940. Suggestion of Error Overruled April 22, 1940.
1. JUSTICES OF THE PEACE.
The statute making mayor of a town an ex officio justice of the peace is authorized by constitutional provision which allows establishment of inferior courts (Code 1930, sec. 1975; Const. 1890, sec. 172).
2. JUSTICES OF THE PEACE.
Provision of Constitution dealing with district justices of the peace is not involved in the matter of justices of the peace who are such by virtue of their offices as mayors of towns and villages (Const. 1890, secs. 171, 172).
3. SEARCHES AND SEIZURES.
Where a town is located partly in two counties, the county line running through the municipality, the mayor is nevertheless the mayor of the entire town and in consequence is an ex officio justice of the peace throughout the entire limits of the municipality, and he is a justice of the peace ex officio of both counties, and he has authority, while acting within the municipality, to issue a search warrant to be executed in any part of either of the two counties (Code 1930, sec. 1975; Const. 1890, sec. 172).
4. INTOXICATING LIQUORS.
Where town was on line between Lee and Monroe counties, a part of municipality being in each county, search warrant for intoxicating liquor addressed to lawful officer of Monroe county and returnable before proper district justice of the peace in Monroe county was valid, notwithstanding mayor who, as ex officio justice of peace, issued warrant was a resident of that part of the town which was in Lee county (Code 1930, sec. 1975; Const. 1890, sec. 172).
APPEAL from the circuit court of Monroe county; HON. CLAUDE F. CLAYTON, Judge.
McFarland Holmes, of Aberdeen, for appellant.
Article 4, Constitution of the United States, Amendments, page 14, Mississippi Code of 1930 Annotated, and Section 23, Constitution of the State of Mississippi, page 49, Code of 1930 Annotated, are almost identical in wording and are to the effect that the people shall be secure in their persons, houses and possessions from unreasonable seizure and search.
The search warrant provided for and directed to be issued therein (Sec. 1975, Miss. Code of 1930 Annotated), if issued by a justice of the peace, must be issued by "a justice of the peace of the county" in which the property ordered to be searched is located.
If C.J. Pennal had not resided two years in Monroe County in the district from which he was selected mayor, he was not eligible under Section 171 of the Constitution of the State of Mississippi, supra, to hold the office of justice of the peace, and had no jurisdiction over any part of Monroe County except as mayor over that part of Monroe County located within the corporate limits of the Village of Nettleton and, therefore, the search warrant which issued in this case was absolutely void, and the evidence procured as a result of a search made under said search warrant was incompetent, as it was unlawfully procured.
This court cannot give to the citizens of this state the protection provided for by the Constitution of the State of Mississippi and of the United States against unreasonable search and seizure of their premises by holding that the search warrant in this case is valid.
Sec. 1975, Miss. Code of 1930 Annotated.
Our democratic form of government would be trampled under foot if citizens of other counties adjacent to the counties in which we live, who happen to be mayors of towns located in one or more counties and who have judicial authority, are to be permitted, against the provisions of the constitution, to exercise judicial functions outside of the territory included within the corporate limits of the towns from which they have been elected to serve as mayor.
C.J. Pennal, who was elected mayor of the Village of Nettleton, partly in Lee County and partly in Monroe County, and who resides, and for many years has resided in Lee County, may have been, because of his residence in Lee County for two years or more prior to his selection as mayor of said village, entirely acceptable as mayor and as ex-officio justice of the peace to the citizens of Lee County, where he resided, and to the citizens of the Village of Nettleton, where he likewise resided, but the Constitution provides that he could not possibly be an ex-officio justice of the peace of Monroe County. In fact, the Constitution says that he was not even eligible to hold the office of ex-officio justice of the peace in Monroe County because he had not resided in Monroe County, or in the 5th district thereof, the district in which Nettleton is situated, for two years next preceding his selection.
Our understanding of the law has always been that the constitutional provisions of the laws of search and seizure are to be strictly construed and followed precisely when the persons, houses and possessions of our citizens are to be searched.
The learned circuit judge, in sustaining the demurrer of the district attorney to our special plea, referred to Section 2536, Mississippi Code of 1930, which is the statute authorizing the selection of a police justice in cities having less than 7,000 inhabitants, but the court will note that this selection is made by the mayor and board of aldermen electing a police justice, and there is nothing in the record here to show that C.J. Pennal was so elected, and, furthermore, the Village of Nettleton is not a city. This section further provides that in all towns, villages and other municipalities where a police justice is not elected the mayor or mayor pro tem shall be the police justice; and in either case the police justice shall be an ex-officio justice of the peace in and for the corporate limits. If this makes C.J. Pennal ex officio justice of the peace in Monroe County, Mississippi, it conflicts with Section 171 of the Constitution and is unconstitutional.
We have been unable to find any provision of law whereby any municipality, such as the Village of Nettleton, Mississippi, for the purpose of construing these statutes, must be considered as a district for the selection of a justice of the peace; and if there is any such provision, it would clearly be unconstitutional as violative of Section 171 of the Constitution.
Section 171 of the constitution clearly provides that the Legislature shall have authority only to fix the number of justices of the peace in each supervisor's district in the county, and that they cannot provide for a justice of the peace whose district includes a part of another supervisor's district or a part of another county, as the district of the justice of the peace must be wholly within one supervisor's district and wholly in one county.
If the evidence was procured unlawfully by the officers, it, of course, was inadmissible in evidence.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
It was contended at the trial below, as well as here, that the mayor of Nettleton, because of his citizenship in Lee County, had no authority to issue a search warrant to be executed in Monroe County, outside of the municipal limits of Nettleton. Appellant contends that as a result thereof all of the evidence upon which the indictments in this case were returned was unlawfully procured. We doubt if a motion to quash upon the ground assigned is the proper way in which to raise the question here. It merely raised the question of admissibility of evidence procured by what was alleged to have been an unlawful search and seizure.
Holmes v. State, 146 Miss. 451, 111 So. 860; Owens v. State, 169 Miss. 141, 152 So. 651.
The court cannot, on a motion to quash, inquire into the evidence on which a grand jury returns an indictment.
Kyzar v. State, 125 Miss. 79, 87 So. 415; Blowe v. State, 130 Miss. 112, 93 So. 577, 24 A.L.R. 1429.
In the early case of Smith v. Jones, 65 Miss. 276, 3 So. 740, this court said that an ex officio justice of the peace was a justice of the peace of the county in which the municipality was located. This holding was re-affirmed in the case of Nickles v. Kendricks, 73 Miss. 711, 19 So. 582.
The Town of Nettleton lies partly in Monroe County and the mayor of Nettleton, by virtue of his office, has all the powers of a justice of the peace of the county in which his municipality is located. The mayor of Nettleton, therefore, as we see it, was an ex officio justice of the peace of Monroe County and had the right to issue a search warrant to be executed in any part of the county. That one justice of the peace may issue a search warrant to be executed in another part of the county, see Reynolds v. State, 136 Miss. 329, 101 So. 485; and Conwill v. State, 147 Miss. 118, 112 So. 868.
We think, under the statute as well as the previous decisions of this court, the mayor of Nettleton, as ex officio justice of the peace, had the right to issue the search warrant to be executed anywhere in Monroe County, since his municipality was located within such county.
Argued orally by W.D. Conn, Jr., for the appellee.
The Town of Nettleton is on the line between Lee and Monroe Counties, a part of the municipality being in each county. At the time here in question the mayor of the town, who by statute is ex officio a justice of the peace therein, was a resident of that part of the town which lies in Lee County, and was and had been for more than five years an elector of Lee County. An affidavit for a search warrant for intoxicating liquors, regular in form and contents, was made before the Mayor as ex officio justice of the peace for the search of the premises of appellant, located in Monroe County and outside the municipal limits of the town; and the mayor, acting as ex officio justice of the peace and being at the time within the municipal limits of the town, issued the warrant as prayed, addressed to any lawful officer of Monroe County, and returnable before the proper district justice of the peace in Monroe County. The warrant was executed by lawful officers of Monroe County, and as a result a quantity of intoxicating liquor was found in appellant's possession, for which, on the evidence procured during the search, he was subsequently convicted.
The point here made by appellant is that the mayor being a resident and an elector of Lee County, although acting as ex officio justice of the peace and being at the time within the limits of the municipality, could not issue a search warrant, to be executed in Monroe County, beyond the limits of the municipality.
The statute making the mayor of a town an ex officio justice of the peace therein derives its authority from Sec. 172, Constitution 1890 — the section which allows the establishment of inferior courts. Bell v. McKinney, 63 Miss. 187. Section 171 of the Constitution deals exclusively with district justices of the peace and is not involved in the matter of justices of the peace who are such in virtue of their offices as mayors of town and villages. Hughes v. State, 79 Miss. 77, 29 So. 786.
In Smith v. Jones, 65 Miss. 276, 3 So. 740, it was held that a mayor, as ex officio justice of the peace, could validly issue writs to run beyond the limits of his municipality and to any part of the county in cases where a district justice of the peace was so authorized, and to the same effect is Nickles v. Kendricks, 73 Miss. 711, 19 So. 582.
When a town is located partly in two counties, the county line running through the municipality, the mayor is nevertheless the mayor of the entire town and in consequence is an ex officio justice of the peace throughout the entire limits of the municipality, including that part in one county as well as the other; and being so, it follows that he is a justice of the peace ex officio of both counties — not as having any foundation for his authority in Section 171 Constitution, but in Section 172 thereof — and being a justice of the peace of both counties, he has authority, while acting within the municipality, to issue a search warrant, under Section 1975, Code 1930, to be executed in any part of either one of the two counties. Compare Reynolds v. State, 136 Miss. 329, 101 So. 485; Conwill v. State, 147 Miss. 118, 112 So. 868.
Affirmed.