City of Pascagoula v. Sharp

101 So. 683 | Miss. | 1924

Cook, J.,

delivered the opinion of the court.

The appellee, W. E. Sharp, was convicted in the police court of the city of Pascagoula on a charge of violating an ordinance fixing a speed limit for motor vehicles within the limits of said city, and prosecuted an appeal to the circuit court. The judgment of conviction in the police court was signed by J. Higginbotham, mayor pro tempore, and in the circuit court an order was entered sustaining a motion to dismiss the affidavit and proceedings for lack of jurisdiction, and from the judgment sustaining this motion and discharging the defendant the city prosecuted this appeal.

It appears from the record that the motion attacking, the jurisdiction of the circuit court was based upon the ground that the judgment appealed from was rendered by the mayor1 pro tempore of the municipality, without disclosing Toy the record the facts constituting the authority of said mayor pro tempore to preside at such trial.

Section 3334, Code of 1906 (section 5831, Hemingway’s Code), confers upon the mayor and board of aldermen of a municipality the power “to elect one of the aldermen to be the mayor1 pro tempore, and who shall preside at all meetings and perform all duties of mayor in the absence or disability of the mayor,” while section 3399, Code of 1806 (Section 692.7, Hemingway’s Code), provides that “in all towns, villages and other municipalities where a police justice is not elected, the mayor, or mayor pro tempore, shall be the police justice.” The police court of this municipality unquestionably had full and complete jurisdiction of the subject-matter and the person to render the judgment appealed from, and consequently- the presumptions necessary to sustain the validity of the judgment must be indulged. Root v. McFerrin, 37 Miss. 17, 75 Am. Dec. 49; Scott v. Porter, 44 Miss. 364.

' The judgment appealed from is regular on its face, and appears to have been rendered by the mayor pro tempore exercising the functions of police justice of the municipality, an officer who is expressly authorized by statute so to do. In such case it is not necessary that the judgment or transcript of the record from the police court should .affirmatively show that the mayor was absent, or incapacitated or disqualified. The record before us is silent as to whether the mayor was absent, or' incapacitated or disqualified to act, and the presumption that such was the case must prevail. ’

The judgment of the court below, sustaining the motion to dismiss, was erroneous for another1 reason. The transcript of' the record from the police court does not show that the defendant made any objection in that court to the authority of the mayor pro tempore who assumed to act under color of authority, and by his failure to so object in that court he waived his right to objiect on appeal.

For the reasons indicated, we are of the opinion that the motion to dismiss the proceeding should have been overruled.

Overruled..