Metzner v. State
128 Tenn. 45
Tenn.
1913
Check Treatment
Mr. Justice G-keest

delivered the opinion of the Court.

Thе plaintiff in error was indicted for the offense of selling intoxicating liquors within four miles of а schoolhouse. The case was tried before the circuit judge without a jury, and Mеtzner was found guilty. The judge sentenced him to six months’ imprisonment, and imposed a fine’ upon him of $400. Metzner- has "brought his case to this court, and the only question made here is the right оf the court to impose upon him ;a fine of this amount.

Chapter 1 of the Acts of 1900, рrescribing the penalty for this offense, provides for a fine of not less than $50', nor more than $500', and imprisonment for not less than thirty days nor more than six months.

Section 14 of article 6 of the constitution ‍‌‌‌​‌‌​​​​​​​​​​​‌​‌‌​​​‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‌​​​‌‍of Tennessee is as follows:

“No fine shall be laid on any citizen of this State that shall exceed $50, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than $50.”

’ In behalf of the State it is insisted that, the plaintiff in error having waived a jury trial below, the trial judge thereby became vested with all the functions and powers of a jury in respect to the trial of this particular offense, including the right of imposing any fine which the jury might have imposed for a violation of the particular statute.

*47The section of .the constitution quoted seems to confer upon a jury the exclusive right of assessing a fine in ‍‌‌‌​‌‌​​​​​​​​​​​‌​‌‌​​​‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‌​​​‌‍excess of $50. The language is that no fine exceeding that amount shall be imposed, unless assessed by ajury.

In our opinion, this constitutional' provision withholds from the cоurt or judge the right to inflict fines exceeding $50', and confers upon the jury exclusive power ox jurisdiction to impose fines above that sum.

"While it is settled in this State that a defеndant in a misdemeanor case may waive a trial by a jury,' we do not think by such a waivеr he can confer on the judge power or jurisdiction plainly withheld from the judge by the constitution.

This is a matter of jurisdiction. Jurisdiction is conferred ‍‌‌‌​‌‌​​​​​​​​​​​‌​‌‌​​​‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‌​​​‌‍by law, and cannot be conferred by consent.

Power or jurisdiction to inflict a fine exceeding $50 having been by law conferred upon a jury alone, and withheld from the judges, no waiver or cоnsent of parties can be invoked to endow a judge with this jurisdiction.

“It is a maxim in the law thаt consent can never confer jurisdiction, by which is meant that the consent.of рarties cannot empower a court to act upon subjects which are not submitted to its determination and judgment by the law. The law creates courts, and upon consideration of general public policy defines and limits their jurisdiction, and this сan neither be enlarged nor restricted by the act of the parties. * ’ Coolеy’s Const. Lim. 398.

*48In all jurisdictions, practically, it is held that a defendant cannot waive a jury trial in a felony case. The strongest reason given for this rule is that a jury is an essential ‍‌‌‌​‌‌​​​​​​​​​​​‌​‌‌​​​‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‌​​​‌‍рart of the court having jurisdiction to try such offenses, and such jurisdiction cannot he сonferred by consent of parties upon a court organized without a jury. 24 Cyc., 150; In re McQuown, 19 Okla., 347, 91 Pac., 689, 11 L. R. A. (N. S.), 1136. See note under this case in 11 L. R. A. (N. S.), 1136, where many authorities are collected.

So, under the constitution of Tennessee, a jury is the only tribunal upon which jurisdiction to levy a fine exceeding $'50 is conferred, and such jurisdiction cannot he conferred upоn any other tribunal by consent or waiver.

In France v. State, 6 Baxt., 478, it was held that the constitutional provision quoted was intended as a restriction upon the power of the courts or judges, and was not intended as. a limitation upon the power of legislation; ‍‌‌‌​‌‌​​​​​​​​​​​‌​‌‌​​​‌‌‌​​‌‌​‌‌​​​‌​​‌‌​‌​​​‌‍that, where thе legislature had peremptorily fixed the fine at $500' for every violation of a рarticular offense, the court might impose that fine without the interposition of the jury.

This holding was very much weakened by the dissent of Judge Turney; hut, in any event, there.is nothing in France v. State confliсting with what we have said above. In that case it was. distinctly recognized that section 14 of article 6 of the constitution prohibited a judge from imposing a fine exceeding $50 in cases *49where the court had a discretion in fixing the amount of the fine.

We conclude that the learned circuit judge exceeded his authority in undertaking to аssess this fine against plaintiff in error, and the judgment will he corrected hy reducing the amount of the fine to $50. As corrected, said judgment.will he affirmed, with costs.