| W. Va. | Jul 15, 1872
Eclrhart was indicted in tlie circuit court of Ohio county for selling and furnishing in the city of Wheeling spirituous liquors, wine, porter,.ale and beer and drinks of like nature to a certain person on Sunday; the said Eck-hart at the time of the alleged selling and furnishing having a license as required, and having executed the bond required by the 12th section of chapter 32 of the Code, conditioned among other things that he would not sell or furnish such drink to any person on Sunday.
There was a demurrer to the indictment which was overruled, and a judgment rendered against the defendant below.
It is insisted here that the judgment is erroneous, because the grand jury had no jurisdiction to find the indictment, and because the court had no jurisdiction to hear and determine the case.
The ground upon which it is claimed that the circuit court has no jurisdiction of the case, is the act of the legislature, passed February 27th, 1871, entitled an “ Act, conferring jurisdiction on tlie municipal court of tlie city of Wheeling, in civil and criminal cases for the violation of the license law.” The first section of this act invests the said municipal court with sole jurisdiction to hear and determine all complaints concerning the violation of any law respecting licenses for the sale of spirituous liquors, ale, beer, porter, and other in
The second section provides that the said court shall also have sole jurisdiction to trj' and determine all actions upon bonds, for the violation of any license granted for the sale of spirituous liquors and other intoxicating drinks granted in the corporate limits of said city.
The third section provides the mode of proceeding, and directs the municipal court, or the judge thereof in vacation, to issue his warrant to bring any person accused of selling spirituous liquors in the city of Wheeling, in violation of his license, before the next term of the said court, to be tried, and if found guilty, the penalty provided by law to be imposed on him.
If the municipal court has sole jurisdiction of this case, it necessarily follows that the circuit court had no jurisdiction.
It is maintained that the act giving sole jurisdiction to the municipal court is unconstitutional and therefore null and void. The attorney for the accused insists that the act is constitutional, while the Attorney General insists that it is unconstitutional.
The 4th section of Article XI of the constitution, provides that laws may be passed regulating or prohibiting the sale of intoxicaring liquors within the limits of this State.
Chapter 32 of the Code, passed in supposed conformity to this provision of the constitution, authorizes the sale of intoxicating liquors upon license, under certain specified circumstances, and prohibits such sales, even upon license, to certain persons at anj time and prohibits such sales to any person on Sunday.
This is a prosecution as before stated, for selling and furnishing intoxicating liquors in violation of section 12 of said chapter. The offense is declared a misdemeanor, and the penalty imposed on conviction, is a fine of not less than ten, nor more than one hundred dollars.
The first section of the bill of rights provides that no person shall be held to answer for treason, felony, or other crime not cognizable by a justice, unless on presentment or indictment of a grand jury. The 9th section of Article VII of the constitution provides, that jurisdiction of all misdemeanors and
The municipal court of the city of Wheeling, is a court of limited jurisdiction. It has no gránd jury to find indictments, nor any petit jury to try any criminal case. It has m> criminal jurisdiction, except in cases where a fine, penalty or punishment may lawfully be imposed for a violation of an ordinance of the city.
It follows, therefore, as cases like this can only be prosecuted on presentment or indictment of a grand jury, and the trial of the case can only be by jury, that the municipal court can have no jurisdiction of the case, either sole or concurrent. Tt is insisted that although the act of February 27th, 1871, may notconfer upon the municipal court jurisdiction of the case, yet the 6th section of the said act, repealing all acts or parts of acts ineonsistant with the act, takes away from the circuit court all jurisdiction to hear and determine the case.
It is well settled that part of an act may be inopperative and void, and part of it operative, but this can only be when the parts are not connected.
If they are so connected with each other as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently; then if some parts are unconstitutional, all the provisions which are connected must fall with them. Cooley's Constitutional Lim., p. 177-8-9. Commonwealth vs. Hitchings, 5 Gray 482. Fisher vs. McGim 1 Gray 1. Warner vs. Mayor of Charlestown, 2 Gray 84.
The object of the legislature in passing the act in question, was to confer upon the municipal court, sole jurisdiction to try all offenses of the class presented in this case, committed within the city of Wheeling, and it.cannot be supposed that it would have passed any act taking away from the circuit
For both of these reasons, this court must hold the repealing section inoperative and void.
There is nothing therefore in the act, to interfere with the jurisdiction of the circuit court to hear and determine the cause, and the judgment complained of will have to be affirmed with damages and costs.
Decree affirmed.