48 S.C. 8 | S.C. | 1896
The opinion of the Court was delivered by
The' “Case” as prepared for argument here contains the following statement of facts: “The appellant was convicted by Alderman Hill, acting mayor of the city of Anderson, on the 26th day of May, 1895, of the.offense of selling intoxicating liquors against the ordinance of the said city of Anderson. The defendant appealed to the full council. The hearing of said appeal was had on June 22, 1895, and after hearing appellant’s written grounds of appeal, all testimony de novo, that was offered pro and coji, and argument by counsel, council áffirmed the ruling and decision of the mayor pro tern., found defendant guilty, and affirmed the sentence imposed by the said mayor pro tem. Whereupon the defendant appealed to the Court of General Sessions upon the exceptions herewith filed. The appeal came on to be heard at February term, 1896, of general sessions for said county, before his Honor, Judge Joseph H. Earle, who passed the order hereto attached, dismissing the appeal. In the course of the argument, the presiding Judge said to appellant’s counsel: ‘If you can show me that Alderman Hill voted as a juror, I will grant you a new trial.’ Whereupon appellant’s counsel answered: ‘It is not incumbent upon us, we submit, to show that he did vote. We have no means of knowing certainly whether or not he did. Our contention is that we are entitled to a reversal of the judgment because he sat with the council and may have voted.’ To this Judge Earle replied: ‘In the absence of any showing to the contrary, the Court must assume that a public officer did his
It also appears in the “Case” that at the hearing of the appeal by the city council, the following were present: Mayor Tolly; Aldermen Hill, Duckett, Digon, Dillingham, and Fant. The following apparently contradictory statement is also found in the “Case:” “Defendant’s attorneys objected to Alderman Hill sitting on this case, he having tried the case as mayor pro tem. City attorney asked defendant’s attorneys in open court if they objected to Aider-man Hill sitting in this case. Defendant’s attorneys declined to answer.”
The exceptions, for the purposes of this appeal, may be stated sbustantially as follows: 1st. That the act of 1887, amending the charter of the city of Anderson, granted by the act of 1882, as well as the act of 1888, amending the said act of 1887, are unconstitutional, in that they violate the provisions of the Constitution securing the right of trial by jury. '2d. Because the said acts are unconstitutional, in that they violate the provisions of the Constitution securing to the defendant a fair and impartial trial, because the city council sat as judge and jury in a case in which they were the prosecutors. 3d. Because the said acts are unconstitutional, because they provide that the city council shall sit as judge and jury in a case in which they are interested. 4th. Because the Circuit Judge erred in not 'holding that it was error for Alderman Hill to sit in council while hearing an appeal from a judgment rendered by him as acting m&yox. 5th. Because his Honor erred in holding that it was incumbent upon the defendant to show that Alderman Hill voted in determining the appeal from his own judgment. 6th. Because his Honor erred in not holding that it was error for Mayor Tolly to sit at the hearing of the appeal by the council, he having been absent when the case was originally heard by Alderman Hill, as acting mayor. 7th. Because his Honor erred in not holding that it was error on the part of council to affirm the decision of the
The sixth exception must be overruled. The act under which the trial was manifestly conducted expressly requires that the mayor, if present, should preside — and he was present.
The remaining exceptions not being insisted upon, require no further notice.
It is proper to add, that no little embarrassment has been felt in the preparation of this opinion, arising from the fact that, while none of the exceptions filed by appellant raises the point upon which the' acts of 1887 and 1888 have been hereinbefore held to be unconstitutional, yet as that point
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for such further proceeding as may be necessary.