*1 IN THE SUPREME COURT. Booth v. Hairston. attention by and as advised him that you, you you job, prac- had had he tically it, would not make a bid. He stated competitive further that the two you had a where were to work worlcing agreement you and that jointly, adjust he would the matter to entire your satisfaction.” The Ludlow L. Engineers, Inc., Ludlow, defendants, and J. denied any supplanting gave that the town of Andrews Spinks, alleged the contract no to the Ludlow and the Engineers, Inc., plaintiff interest in it; plaintiff survey. was full for paid preliminary waged
The evidence introduced on both sides showed that the contest around the issues submitted. The construed with pleadings, liberally view to substantial issues sub- justice between the parties, permitted mitted court. all essential They embodied as to proper inquiries matters de- or determinative facts of the controversy. complaining fendants understood cause of action and were fully plaintiff’s substantial way misled. The case was tried its merits. No upon defendants were in affected a liberal construction any way or the issues submitted. pleadings It Co. v. Machine said, speaking question Sewing 181 purposes at 247: “One of the most
Burger, C., p. important parties of The Code was to enable adoption system pleading action. The law favors determine and settle their differences one suits.” ending litigation, multiplicity and frowns circumstances, The court under C. below, S., 547, under certain had, a right plaintiff amend; so has this under S.,C. Court, to.allow we under the think, pleadings, liberally construed, it not neces Mial, Brooks, sary. Jones v. 82 N. at p. 257; Ricks v. Hanna, ante, McCanless, ante,
p. 204; p. 17; Killian S. v. 200. In this Court we cannot on the facts. ¥e can pass review de- cisions of the court below “upon matter of law or inference.” legal jury below found the issues in the favor. From a plaintiff’s of the record can briefs, careful review we find in law No error. BOOTH, al.,
C. L. v. SAMUEL of Elizabeth et Trustee James HAIRSTON.
(Filed February, 1927.) — — Conveyances Registration— Parent and Child Deeds —Gifts Statutes. mother her son ah initio unless A of lands from a is void provisions statute, registered in of our SPRING TERM, 0.]
Booth v. 2. Same —Wills—Devise. *2 requires, register And as the statute where the son has failed to his deed against reason, successfully for lands claim the whatever he grandmother, will of devise thereof to his sister’s under the her child appearing years to exercise for than two that the mother continued more ownership of her death. absolute over the lands until the date 3. Same —Curative Statutes. son, her her lands to who Where a mother has a deed of of made required by S., 3315, in the failed to have it time extending void, for the time it is for reason a later curative statute that facts, registration to the Under cannot revive the void deed son. acquired. North of Caro-
vested lina, thereunder have been Constitution I,Art. sec. dissenting. Stacy, Adams, J., J.,C.
Appeal Shaw, May Term, and a at jury, defendant from of Guilford. No error. material facts will forth in the opinion.
Tbe be set & & Sapp plaintiffs. Meade Meade King, King for Smith, Brooks, Horne & Andrew Malcom Joyner Parker defendant. the defend brought by J. This action was plaintiffs against Clarkson, George Mrs. A. E. her son Samuel ant to set aside a deed made to f Mrs. o defendant, city to certain land Greensboro.
Hairston, father of defendant. George Hairston, first husband was George’s and purports of 21 February, 1921, bears the date controversy deed litigation land Hairston, to Samuel convey defendant, commis acknowledged Bagby, before J. L. The deed was simple. fee date, Va., the above Richmond, on Carolina, of North sioner deeds of deeds of in the register was office filed for on 15 County January, Guilford was without considera- the deed complaint
It was alleged and prayer plaintiffs’ cloud on effect, void and of tion, circum- regard it be of record. The defendant canceled says: to in his answer “At him, deed stances of the execution had this she defendant, paper a deed to produced same she to and as seen this defendant before, which had never been character, kind or knowledge had no sort which this defendant she he, defendant, knew, E. stated that George A. then her him fair estate give proportion intended always her feelings; of her and lifelong his consideration greatly she appreciated her out carrying purpose this deed prepared that she had had . COUET. THE IN SUPEEME v. Hairston. the “same That in Greensboro.” this property desire that he should have there then and and was for every purpose valid and effectual legal, . . . And defendant. A. E. to this George delivered Mrs. her son certain desiring give of mother transaction was one simply . in due course. deed therefor she owned and executed for hurrying saw no reason That after this defendant receiving box in his safety deposit same it recorded and having deposited remain it to allowing Bank the intention of The First National it to in a short time to forward should arise until convenient opportunity illness That for the reason on record.” placed Guilford to be County until to Greensboro go he did not so, and not occasion do having any took the meeting, a business when he to attend January, 1924, that the deed The answer shows and had it recorded on that date. *3 one of gift. the found by jury out on an issue
In the court below it was tried the in numerous errors assigned the The defendant against defendant. in this appellees The plaintiffs, trial below and to this Court. appealed was one contend that the deed filed a brief and Court, supplemental and cites C. within two gift years, and void because not registered nature any estate of which is as follows: “All gift any deeds form in due shall within after the thereof be years making two good against and and shall be registered, void, or otherwise creditors from the time of purchasers registration.” for value on and was signed
The deed which are bears date plaintiffs attacking years, on 15 1924—two February, January, and was recorded that it was ten months and 25 after the record evidence discloses days statute and ten months and 25 after the time allowed the signed, days by for recording.
It is that under by contended it had been void plaintiffs, therefore, ten was foregoing days statute months and at the time it twenty-five on record. Plaintiffs further contend put that the deed under which is claiming defendant title had been a of gift, valid and bona fide deed as contended if it by and even were void defendant, absolutely by reason of the it was as way obtained, contended by plaintiffs court then the in below, deed became void terms of the statute very consequence the defendant it in his lock box than keeping for more after its without it delivery placing on record. That it was in necessary order for the defendant to obtain title under this deed of gift it place upon record. The statute made that a condition precedent and title to the did not in him vest until it was in recorded accordance with the terms of the statute, plaintiffs insist that reason of defendant’s failure to statute comply TEEM, SPBING- 0.] v. no void absolutely he claims aforesaid the deed under which declares The statute itself in defendant. land ever vested it shall be void. in their plaintiffs taken by in defendant, position answer first time cannot the plaintiffs brief contends that supplemental supra. S., 3315, of C. as to the appeal application raise the question their com- the plaintiffs made allegation The fact that there is no statute, under the is void question the effect that plaint and therefore the plaintiffs, statute is relied upon by an in this statute has never become issue case.. “A is not Lines, party 478: C., p. It is Stage said Shipp then on theory Court one Superior his case permitted try theory. different it on another and ask the to hear Supreme Court 457.” Warren Susman, facts has no position application
This sound wise, show answer, complaint action. The both present pleadings, it was allege was one of controversy gift. plaintiffs that the deed If one no effect. it was without void and of consideration, consider defend why contended plaintiffs void, out. issue tried ant’s error the court below on the there assignments how would Gui bonof If error should be found and a new trial granted, ? On entire record the facts are admitted the defendant profit new different awarded, .a of law arises. If a trial no question alone follow. the trial court charge result could where By analogy before but the entire erroneous, testimony inquiry relevant it is being perfectly there court, apparent aspect *4 should available, defense our decisions are to the effect that new trial and be Our is founded on granted. system appeals public policy will not a new trial encourage litigation by granting courts appellate a new changed which could not benefit and the result litigant his Bateman nongranting rights. and the was not trial, prejudicial Co., Co., 184 Lumber Bierson v. Iron p. 253; C., p. N. C., Co., 186 N. will therefore, Davis interfere Storage “They Co., is a of ultimate benefit.” v. Express where there Cauble prospect C., p. laws 1924, Public statute, defendant further contends of-regis time Extra eh. ratified 20 extends the Session, August, 1924, until time is extended hereby tration and cures defect. “That the twenty-six, nine hundred' and September first, one thousand State,” etc. all from proving gift, grants deeds registering been It “All such instruments which have heretofore further provides: period before the probated expiration be IN THE SUPREME COURT. Booth v. Hairston.- herein shall be after limited, held and deemed from and such registration been due form probated due thereof other valid.” Plaintiffs respects say deed void under the having statute, become cannot validated act of 1924. . That in order for the acquire defendant the deed must have recorded been -within two years, otherwise is void. That it was was void before the of 1924 passed and act cannot and thus constitutionally validate void deed disturb vested rights. When this enabling George or curative act was Mrs. A. E. passed, had willed the on 24 property controversy plaintiffs— 1923—(cid:127) April, i® after the two Of will registration had course the expired. speaks at her death. C. her 4165. She died on 1 January will was claim duly probated. Plaintiffs title under the will in this action and same land is claimed deed of was gift by defendant that willed to plaintiffs.
Before and after death, the deed of and until her executed, the rents each property George. were month to Mrs. A. E. paid on insurance in her name. The building was on property tax books listed her name. Thus, was made, up her death, George dominion exercised over the —all knowledge adverse to defendant. For example: “Checks of Armour & Ann E. Company, payable to Mrs. George, first of said checks being words and figures follows, to wit: Endorsed: Mrs. Ann E. also George, endorsed the Federal Reserve Bank of Chicago, and Bank Booth, Commercial of Danville, C. L. Va., Cashier.”
The last check “dated & Chicago, Ill., 1924. Armour November, Co., to Mrs. Ann E. amount George, $150.00 Continental —To *5 Commercial Nat. Bank, Ill. Chicago, Payable Bros. to Messrs. Kountz ” N. Bankers, Y. Endorsed by Mrs. Ann E. etc. George There are forty-four of these checks for each payable to $150.00, Ann E. and George her, endorsed by the record. TERM, SPRING N. 0.] v. Hairston. that Mrs. circumstances of this case think the facts and
We under that she had the and right Ann E. had such to George his acts and con- that it to defendant right plaintiffs, the to will the after gift registered is now claim the deed estopped duct under be invoked cannot constitutional, and the years; validating statute, impair right. the vested Walker, J., the difference 303, points in Dew v. out C., p. Pyke, them and and .construes gifts statutes as to grants between the two registered shall be gift “It that a deed says: is provided that the So far the is like within two after its execution. statute years But think this sufficient grants. language ease did not Legislature if the as to provision registration to invalidate the deed gift that if the it took to add complied precaution so donee, deed is not within two be ‘and shall be years void, good it shall registered for from the time against creditors, purchasers value, only registered If the deed of should be registration.’ requirement condition, within two after its execution was intended as a non years the words compliance it, why with which should invalidate superadd This (C. S., 3315.) ‘or otherwise sec. (it) Revisal, be void’? ‘shall as a construction of words considered legislative that if the within two after its effect registered execution,’ it shall unless the instrument is not so not be evidence, thereby is a new registration authority register extended and . But it the enrollment is annexed given. will be observed that in the case our statutes condition to the passing title, as.a instruments above enumerated. gifts and the other mortgages, confidently This all what we have very plainly evinces, significant, been the material difference intention, asserted to have and what a marked unlikeness language produce meaning, should that, than difference could there be in the sense of the two statutes other specified instrument in the one case within register failure reasoning ? This it should not time should invalidate other it, Bufin, law entertained J. supported manifestly the view of the Sasser, 14 for he (afterwards Justice) Jones v. Chief between distinction we have made recognizes very the existence of the be good act which of slaves should not gifts there declared their year execution, within one available unless time of other within general merely given requiring instruments.” covert the case of Robinson v. Barfield, C., p. 420, feme declares deed mere
was never and the law privately examined, confirming an act nullity passed and void. *6 IN THE SUPREME COURT.
Booth v. Hairston. notwithstanding the covert was not examined. This Court privately feme declared that Daniel, JJ., this could not be done. Seawell and both delivering opinions.
In Hicks v. Kearney, C., it was said: “And in Lowe v. p. 319, Harris, 112 N. 473: 'But the Legislature of North Carolina is restrained Article I,, section of the Constitution of the United 10, and Article sec. States, I, Constitution of 17, North Carolina, from law passing any that will divest title to land out of one person and vest it in another (except where it is taken for public purposes giving just compensation to the owner), from enforcing any which would enable one person to evade or avoid the of his binding force contracts with whether another, executed or executory,” numerous citing case, authorities including Robinson supra.
No law can be held valid which divests out property of one it gives without another, consent of the owner. This is a universal rule in 48, the states of the union. Stanmire v. Taylor, Harris, Lowe v. supra. certain cases exceptional and for necessity public private purposes, property be taken may upon payment “just compensation.” Patterson,
“Judge Vanhorner, lessee, Dowance, case of 2 Dal 310, las, says: 'The Legislature has no to make an authority act divest ing one citizen of his freehold and it in vesting without a another, just it compensation; is inconsistent with the principles justice and reason, rectitude; it is incompatible with the comfort, peace and happiness mankind; contrary the principles of social free alliance every government, and it is lastly, both to the letter contrary spirit Constitution. In it is short, what every one would think unreasonable ” in his unjust own case.’ Robinson v. Barfield, supra; Hicks v. Kearney, supra.
It will be interesting to call attention to some of the cases in regard to vested rights and retrospective retroactive statutes, other than those already referred to.
In University v. Foy, N. 58: C., p. “The 41st section of the Constitution declares that 'schools shall be established by the Legisla ture for the convenient instruction of youth, with such salaries masters, paid by the public, enable them to instruct at low prices, and all useful learning be duly encouraged and promoted one or more universities.’—In obedienceto this injunction of the Consti tution, Legislature established the University, the year granted to the trustees of the University, 'all there tofore or should thereafter escheat to the State.’ In the year repealed grant. (Loche, for the Court held sub- — TERM, SPRING N.C.] sec- 10th violation void, being : This
stance) repealing is a of the Constitution and declares part tion of the bill of rights, his free- or disseized of taken, imprisoned ‘that no freeman to be ought *7 destroyed outlawed in manner or or or privileges, liberties hold, ” the law of the land.’ of his or liberty property, or deprived life, Sasser, facts. “The claimed the plaintiff v. 14 N. C., p. 378, Jones Sr., Arthur Jones, from his gift father, in deed of dispute slave 20 1830. until 1827, registered February, 5 which was dated April, 5 same dated person, under a deed from the The defendant claimed Honor in- 10 His January, was registered August, 1829, no gift, under a deed of as the claimed jury that, plaintiff structed until that took and, place, until it registered, passed by if latter retained the father; in his that the title remained the execution of 1828, until the deed of August, possession which would not be defendant title gave its prior registration, to the plaintiff. of the deed subsequent registration divested the plaintiff appealed.” returned for the defendant, A verdict was J., good R. no of slaves is gift the act of Ruffin, “By c., said: ‘shall act ‘Neither,’ continues, in writing. or available unless made acknowledged, unless the writing proved such act be valid seem the execution thereof.’ These within one after words year acts registry to make Legislature, then, purpose denote The judgment of slaves.” gift at least reference effectual, Perkins, 15 N. C., p. affirmed. v. Gregory the court below was Lucas, discloses 48 N. the headnote Tooley C., p. 146, In the case of v. con- of a deed “Parol evidence of the contents the nature of that action: admissible, registered, is not it was not veying slave, of the or destruction full has been made of the loss although proof secondary to offer of the intention proper given notice instrument, of its contents.” proof “The Rose, said:
In v. 120 C., 165, Montgomery, Spivey p. ground of the deed on the admissibility further plaintiff objected face, on its voluntary to be appeared that it was void law, two a deed of and had not been within being gift objec this overruling no error in its execution. His Honor committed enacted has every years, tion. General Assembly regularly, The real conveyances extending registration statutes the time its registration, of this deed to the time of up since the execution estate, 31 before the death of the testator —even March, 1871, the first one on this Court acts been declared before was made. Such the will embraced gift and deeds of Legislature, to be the discretion Fewell, 10 Sasser, 378; Scales v. their Jones v. provision. 18.” 286 IN THE COURT. SUPREME enabling registration above ease the noted that
It will be expired had the two years before passed disputed. This is not proposition void. had become deed extended the August, 1924, act was ratified enabling year, been void one question September, until think that at that time and we twenty-nine days months five and that operation has no retroactive statute a statute will rights.. “Especially affecting an act to pass power it is in derogation when as operating prospectively be'regarded it retroactive will operation effect of giving or the right, common-law unconstitutional. the, render right or to a vested destroy 252.” Hicks v. Kearney, Interpretation Laws, Black on R. C. L., supra. therefore, “It Holt, it is said: S., p. 623, may, 115 U. Campbell personal property, recover real or in an action to that, well be held
very of the statute is as to the removal bar the question where *8 perfect, after the bar has become act legislative passed limitations of law. process of his without due party property such act deprives repealing in existence before the act, the law .by The reason is, that, and the real legal Both the become the defendant’s. had act the give and to effect him, had become vested ownership him would be to of the deprive prop this title to transferring plaintiff, Beaman, 126 N. C., of law.” See Dunn v. due process without erty, p. to a of a family, most member gifts by frequently
These secret deed, into sound enacted good public policy to of others, often the exclusion so that two should be recorded years they law that within requires otherwise shall be void.” to the world—“or given notice be this case the or enabling the facts and circumstances of curative Under could not validate the void registration regard to resuscitate so as to affect the rights the statute had no power E. can find A. the record we George. Upon
No error. dissenting. O. J. and Adams, J".,
Stacy, I dissenting: The decision understand J., case, it, as Stacy, ground that the deed of from Mrs. A. E. put upon George son, registered her Samuel void because within Hairston, its and that years after is without follow making, Legislature power, ing hiatus of one five months and year twenty-nine days after it was declared void under the terms of O. 3315, to authorize its and render it as between valid parties by extending curative or SPRING TERM, O.]
Booth v. Haikston. act of I respectfully dissent from this so position, reasons Sasser, clearly Ruffin, stated Jones v. 378: “The certainly power the time for enlarge registration, and to its pronounce and if to them it effect, seem the courts must good, execute their will. From time to acts time, giving further time for regis tration have been passed; and in deeds of all each, gift, indeed except mortgages and deeds of conveyances, are trust, expressly included; and it is enacted that as they as if good valid they been proven within registered the time before allowed . by law. Acts of this character always received a literal construction; in fact, are they of none other. susceptible The only exception case Fewell, Scales v. 18, in which there was an hiatus of one between the year acts of 1818 extending 1821, during the interval vested other rights persons. Court thought the last act was not intended defeat such rights. But in other every case deeds at ever so remote a period have been force of the new held, by registry acts, to be as as if operative within the periods prescribed by the acts of 1715 or any other statute.” general Fewell,
It will be observed that in the case of Scales v. mentioned, above the Court sale, held the bill of there registered after the time required for its validity under the act of good between the parties, by virtue of the act of enabling 1821, subject intervening vested Hall, J., rights persons. third of the effect speaking extending “I think said: act, comprehended and validated regis- tration of the deed in question as to all future I do transactions, yet not think that it divested (of third under' persons) the execution which had vested before time.” case Robinson v. Barfield, N. is also C., 391, cited for the covert,
position that aby not privately examined as required feme *9 the act of by could be 1751, not validated act of the by subsequent This Legislature. case was correctly because in meantime decided, the the covert and vested diéd, rights intervened. The case of Barrett feme Barrett, v. 120 N. C., on the other 127, where no vested hand, rights of persons third is intervened, directly “The opposite: Legislature power or the laws pass, repeal modify the manner regulating of or executing, proving recording conveyances, the exercise of such to cure power defective with compliance statutes former cannot be an interference with rights vested as between the to such instru parties White, ments. Tatom v. 95 N. 459. It C., 453, becomes so when third parties acquired rights have which would be the act impaired by which is cure the intended to defective execution, probate or registration. . It is for competent Legislature the of provide what mode IN COURT. THE SUPREME
288 v. as as it affect well past it does so can and when shall he valid, probate claiming prior third parties, that the except future probates, is Retrospective legislation cannot be divested. act, validating invalid.” necessarily Asso., Ill., 208 Building v. Steger effect is the decision To like probate, for want of proper void mortgage deed, where Legislature “The saying: the Court by subsequent statute, validated authorized lawfully have might which and confirm may ratify of some out the neglect the arises where defect the first instance, rights.” act interferes with and the curative formality legal Gross, 93 Co. v. Ill., S. Mortg. U. constitutes and which done, which failed to be thing wanting
“If or for which the necessity something the proceedings, the defect it is not then prior statute, with dispensed might Legislature it by subsequent dispense power Legislature beyond mode doing act, if some And consists irregularity statute. have made Legislature might which the doing act, or manner some same to make the competent it is equally prior law, immaterial Lim. (7 ed.), p. law.” Const. Cooley’s subsequent immaterial District v. Mattingly the United States, Court of Supreme Columbia, power speaking U. “It there- may, as follows: states the same tersely principle, such cases, without proceedings which, and confirm fore, cure irregularities, such con- unauthorized, provided he because would void confirmation, rights.” intervening does not interfere with firmation Wilkins, Cozad, N. Anderson v. 600; C., Fibre Co. v. See, also, Harris, Blackwell, v. 437; 138 N. Lowe Janney C., 142 N. v. C., 157; Comrs., v. 183 N. Board Education made from Justice quotation The last sentence Court opinion Pyke, C., 300, significant: Walker’s Dew very a legislative construction of words 'shall considered “This its within two execution,’ effect that instrument is not so shall not be evidence, unless for time and a extended new it is authority register thereby given.” is a
There distinction made in some of the cases between the force initio, of an act effect undertakes validate a ab deed, void and one which simply extends registering but for which it would be declared void under the statute its requiring registration. Cornwell, 10 Dever 6 A. & D., 123, E. Enc. of ed.), Law (2 E. 940; 24 A. & Enc. of Law (2 ed.), 111; Cooley’s Const. (7 ed.), Lim. *10 528 et seq. 289 1927. TEEM, SPEING
N. 0.] Booth v. aof invalidity the example, uniform for holding,
But it tbe by executed exemption, of the homestead conveyance mortgage the Legislature, act of subsequent be cured alone, may by husband in land to such prior third persons acquired no VanVoorhis, (Mass.), note, Gray Wildes v. enactment. Legislature giving validating A. L. so R., p. says to their according intent,” the parties effect “to the act of Lawson, 58 case of v. Sidway of Arkansas Court Supreme Ark. under extension deeds and those unregistered The status 333 (second Barnhart, acts is thus stated succinctly Phifer and third : head-notes) which,’ in an deed has a unregistered legal “2. The bargainee bargainor mere act of the cannot be defeated though incomplete, and whose without notice party, another deed to third executing deed is registered.
“3. such cannot in evidence until Although given registered, be not therefore when convey perfect legal title, yet, registered, and does it relates to time of its and the title bcomes execution, complete.” numerous supported by
These conclusions are authorities cited case itself has been followed and cited with approval opinion, and Allen’s Ee- Shephard’s a number later decisions. See Citations & Cited ported Cases, Lucas, Nash, question Tooley
Speaking C., 146, said: “To the legislative department government, belongs are to power governed, to enact be laws, people them. While within the judiciary, right expound acting scope of their their will is to be none have a legitimate obeyed; right authority, of an act is plain it. Where the disobey language perspicuous, unless its enactment transcends the speak itself, power the act must In this case the has left no doubt of the Legislature. to us. 'All sales of shall be writing, slaves question presented credible or otherwise shall be deemed witness,
attested at least one and all bills of sale slaves within twelve months after valid; and all bills form, recorded; due making thereof, proved manner perpetuated not authenticated and deeds sale, gift, Stat., whateverEev. void and shall be directed, this act force In the in that section. I refer to the proviso ch. sec. 19. need not convey of such made provision section succeeding If not no room for construction. is no ambiguity; there ances. Here, directed, is, duly and perpetuated authenticated valid, deemed is declared not conveyance directed, recorded as 19 —193 *11 OOUET. IN THE SUPEEME Fowlek.
State enactment, important So and of void but to be effect. practice is an invariable Legislature, of the to session from session If a conveyances. all such proving the time enlarging a law to pass subsequent chain of acts, link of this in the occurs hiatus under and authenticated proved bemay the deed passed, should be back; has no relation authenticated, when so but latter, the prop- upon be levied bargainor against an execution so that Fewell, 18.” 10 N. C., in it. Scales contained erty sum curative acts subject law on because void instruments or other “Deeds, probates, as follows: marized made valid may be or defective of registration of lack purpose not for the 'parties, as between legislation subsequent the passage before third persons acquired by impairing statute.” in ques the deed it, valid, that, 1924 is act of I think the between; George, fact that parties. is good tion others, ipso devising a will, had executed meantime, facto for she suit, the present cannot affect them, no right law, and under extending act, of the passage the time of the at living as if it had been executed effect a will takes -speaks as now written, unless a intention contrary the death of the testator, before immediately the will. C. S., shall appear WILLIAM FOWLER.
STATE v. February, (Filed 1927.) 1. Constitutional Law —Criminal Law —Punishment—Discrimination. S., 3410, provisions applying State, all of C. counties of the Under prohibition law, conviction, punishable violation in all imprisonment; of the State fine or within the counties trial discretion of the only statute, applying judge, counties, making and a five instances, punishment a fine certain is in. violation of our Consti- Const., I, tution, and Art. sec. 7. void. Indictment—Judgment. 2. Same — prohibition Where the indictment for the of our violation law is drawn provisions existing apply- under the of C. and there is an statute ing county making ato wherein trial is the defendant in case of punishable only by fine, imprisonment first offense the second offense, instance, and is void the former as to which the indict- , defective, general ment would otherwise be is sentence under the entered, upon properly conviction.