Opinion
No. 32669.
May 31, 1937. Suggestion of Error Overruled July 19, 1937.
1. CONSTITUTIONAL LAW. Intoxicating liquors.
A provision of statute permitting sale of intoxicating liquor under certain conditions, to be effective only in county electing to come under it, is not unconstitutional as delegation of legislative power as applied to prosecution under law allegedly repealed thereby (Code 1930, sec. 1974; Laws 1934, chap. 173; chap. 173, sec. 12).
2. CRIMINAL LAW.
Justice court record of conviction which included copy of affidavit charging unlawful possession of liquor, warrant for arrest, appearance bond, and judgment followed by justice's certificate that such was true copy of record was sufficient to give circuit court jurisdiction of appeal under statute (Code 1930, secs. 65, 3403).
3. CRIMINAL LAW.
Omission of judgment in justice court or circuit court to state offense of which accused was convicted is immaterial as respects jurisdiction of circuit court or Supreme Court on appeal where such fact appears in other portions of record.
4. CRIMINAL LAW.
Where record contained none of evidence introduced in trial court, assignments of error which required inspection of evidence could not be considered.
5. CRIMINAL LAW.
Where trial of accused for possession of intoxicating liquor was noted by official reporter and no transcript was made because no notice was given until expiration of statutory time, bill of exceptions setting out evidence sworn to by counsel for accused, presented to but not approved by trial judge, and as to correctness of which Attorney General did not agree, was not properly before court on appeal and no notice could be taken thereof under statute (Code 1930, secs. 724-729).
APPEAL from the circuit court of Jefferson Davis county. HON. HARVEY McGEHEE, Judge.
Luper Martin, of Prentiss, for appellant.
The circuit court, in our judgment, had no jurisdiction to try Tom Stewart, and this being jurisdictional can be raised here for the first time. It will be noted that there is no sort of any certificate from the justice of the peace in the record. There is no way by which to identify any of the papers in the record as having been properly before the justice of the peace.
121 Miss. 400, 83 So. 20.
Our court has also held that the want of such a certificate and certified copy is not a defect which may be cured or waived, that this is jurisdictional and without the certificate the circuit court cannot proceed with the case.
Rogers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481.
In Pierce v. Jernigan, 151 Miss. 758, our court holds that the certificate must be attached to record the proceedings before justice of the peace to warrant circuit court jurisdiction on appeal.
The court will note that neither the purported judgment in the justice of the peace court nor the judgment in the circuit court shows what offense, if any, Tom Stewart was put on trial for. Neither purported judgment makes any reference to any affidavit or to anything whereby it could be identified. Even if there had been an indictment and it were recorded on the minutes of the court, it is no part of the minutes.
4 S. M. 535; 12 Cyc. 785, note 21.
We do not see how the justice of peace judgment could be held to be anything more than a scrap of paper.
We submit that chapter 38, Code 1930, at least section 1974 thereof, was repealed by chapters 173 and 174, Laws 1934, as to all "alcoholic beverages" containing more than four per cent of alcohol by weight; and that, therefore, appellant should be discharged on the ground that the purported affidavit charged no offense and that thus neither the circuit court nor the court of the justice of the peace had any jurisdiction to try Stewart; and this argument is made without waiving any rights appellant may have under our original assignments of error.
We submit that the Legislature had no authority either by the Constitution or outside of the Constitution under so-called legislative power to refer a law to the people; that all that part of chapter 173, Laws 1934, referring the election matter to the people is mere surplusage and that the rest of the statute is in full force and effect, having been declared so by the said chapter.
Section 33, Constitution; Power v. Robertson, 130 Miss. 189, 93 So. 769.
The delegation of a legislative power to a body of "irresponsible" voters, whose whims are as changeable as the tides of the sea would simply mean anarchy. Law, as we understand it, derives its authority, not from a vote of the people, but from the legislative will.
When the Constitution enumerates power granted or denied, it must be held to have named all of the powers so dealt with as being, with the necessary implications, the sole limit of authority or restriction.
Sandy Bayou Case, 87 Miss. 125, 40 So. 152.
The whole legislative power of the people of this state is vested by the Constitution in the Senate and House of Representatives; and no part of it can be delegated by the Legislature to the whole or any portion of the people, or to any department of the government; nor can the Senate and House of Representatives associate with themselves, in the exercise of legislative functions, any person, power, or tribunal whatever.
Alcorn v. Hamer, 38 Miss. 653.
The court will note in the matter at bar, this law was passed by the Legislature, approved by the Governor, and we hold it is still the law, with that part referring the election to the people as being mere surplusage.
McCool v. State ex rel. Howie, 149 Miss. 82, 115 So. 121.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is argued that the circuit court had no jurisdiction of the appeal from the justice court because there was no certificate of the justice of the peace to the transcript which he filed in the circuit court. The state submits that there is no merit in this contention. This certificate, while possibly irregular, is sufficient, in our judgment, in view of the decision of this court in the case of Borders v. State, 138 Miss. 788, 104 So. 145.
McCluney v. State, 162 Miss. 333, 138 So. 356; Section 3403, Code of 1930.
It is also said that the circuit court had no jurisdiction because there was no valid judgment, that the judgment was void because it did not recite the crime of which appellant was convicted. By appealing from this judgment to the circuit court and a trial de novo was had in that court on the same affidavit, it appears that the trial in the circuit court cured all errors, both of law and fact, which may have been committed by the justice court.
Hitt v. State, 149 Miss. 718, 115 So. 879.
In like manner, it is said that the judgment of the circuit court is void because it did not identify the crime of which appellant was convicted. Under the last paragraph of the decisions of this court in Sykes v. State, 157 Miss. 600, 128 So. 753, we submit that this contention of appellant is without merit.
The appellant was convicted in the court of a justice of the peace on an affidavit charging him with the unlawful possession of intoxicating liquor, and on appeal to the court below was again convicted, from which he has appealed to this court.
The prosecution is based on section 1974, Code 1930, which section, the appellant says, was repealed by chapter 173, Laws 1934, and which permits intoxicating liquor to be sold under certain conditions and restrictions in any county which may elect to come thereunder by a majority vote of the qualified electors therein. Section 12 of the statute provides that chapter 38, Code 1930, "shall be in full force and effect in all counties not permitting the sale of alcoholic beverages under the provisions of this act," etc.
The appellant's argument is that the provision of the statute, "that it shall be effective in only such counties as elect to come under it," is void, being an unconstitutional delegation of legislative power, and so being, it may be treated as surplusage leaving the remainder of the statute in full force and effect. The statute in this constitutional aspect is similar to other local option statutes enacted by the Legislature prior to the enactment of the state-wide statute prohibiting the sale of intoxicating liquor, whch were, in the particular here challenged, declared to be constitutionally valid in Schulherr v. Bordeaux, 64 Miss. 59, 8 So. 201, and Lemon v. Peyton, 64 Miss. 161, 8 So. 235.
The jurisdiction of the court below is challenged on two grounds: (1) The record contains no sufficient, certified copy of the proceedings before the justice of the peace; and (2) the judgment of the justice of the peace is void for the reason that the offense of which the appellant was there convicted is not described in the judgment.
The record in the justice of the peace court, as it appears in the record, consists of a copy of the affidavit charging the appellant with the unlawful possession of intoxicating liquor, the warrant for his arrest, an appearance bond, and the judgment there rendered followed by a certificate signed by the justice of the peace "that this is a true copy of the record of Tom Stewart court record." This is a sufficient compliance with section 65, Code 1930; Borders v. State, 138 Miss. 788, 104 So. 145. Moreover, section 3403, Code 1930, provides that "no judgment in any case originating in a justice court, or in a municipal court, and appealed to the circuit court, shall be reversed because it may appear in the Supreme Court transcript that the judgment or record of the said justice or municipal court was not properly certified or was not certified at all, or was missing in whole or in part, unless the record further shows that objection on that account was made in the circuit court, in the absence of which objection in the circuit court there shall be a conclusive presumption that the defects in this clause mentioned did not exist in the circuit court proceedings," etc.
The judgment of the justice of the peace is in the following language:
"The State of Mississippi v. Tom Stewart. "Judgment in Justice Court
"This case coming on to be heard in open Court and on a regular return day for holding Court, and at a regular place of holding Court, the defendant Tom Stewart, appearing and announcing ready for trial with his attorney and waived the arraignment the Court called the witness for both the State and the Defendant and after hearing the evidence the Court was of the opinion that the defendant Tom Stewart, was guilty as charged and thereupon the court sentenced the defendant to pay a fine of Two Hundred ($200.00) Dollars, and therefore to stand committed to the County Jail, until both the fine and cost be paid; so ordered and adjudged in open Court this the 7th Day of November, 1936."
The omission therein to state the offense of which the appellant was convicted is of no consequence, that fact appearing from other portions of the record of that court. Sykes v. State, 157 Miss. 600, 128 So. 753. This also applies to the same omission in the judgment of the circuit court herein.
The remaining assignments of error require an inspection of the evidence introduced in the court below, and we have none such before us; consequently, these assignments of error cannot be considered. Brooks v. State (Miss.), 173 So. 409.
The evidence on the trial of this case was noted by an official court reporter. Notice to transcribe his notes thereof was not given him until after the expiration of the time required therefor by section 725, Code 1930, and no transcript thereof was made. An ordinary bill of exceptions setting forth the evidence, prepared and sworn to by counsel for the appellant, and presented to but not approved by the trial judge, has been certified to this court. The Attorney-General has not agreed to the correctness of this bill of exceptions, and says that it is not properly before the court and no notice can be taken of it. Under sections 724-729, inclusive, Code 1930, when the evidence introduced in the trial of a case is noted by an official court reporter, it can be preserved and made a part of the record for this court only by a transcript by the reporter of his notes thereof, except under circumstances set forth in section 729, none of which appear here. The appellant relies on Miller v. Phipps, 161 Miss. 564, 133 So. 128, 137 So. 479, wherein the court reporter failed to transcribe his notes of the evidence; and a bill of exceptions setting forth the evidence, prepared and sworn to by counsel for the appellant, but not approved by the trial judge, was filed and certified to this court. There being no denial under oath of the correctness of the bill of exceptions, the court said it would treat it "as though it had been agreed to be correct by counsel." But there the court reporter "was duly notified to file a transcript of the evidence." Such is not the case here.
Affirmed.