11 S.C. 288 | S.C. | 1878
The opinion of the court was delivered by
The case first above stated was an application for a writ of prohibition, restraining the respondents “ from any further proceedings 77 in a prosecution against the appellant for keeping a bawdy-house within the corporate limits of the town of Beaufort. It appears that the appellant was tried before the intendant of said town, upon a charge of keeping a bawdy-house, in violation of one of the ordinances of the town, and, upon conviction, was sentenced “to imprisonment for thirty days in the guard-house, or to pay a fine of twenty-five dollars and costs, or to work thirty days for the town, and that said, relator thereupon paid said fine, subject to appeal to council." Whether any steps towards such appeal were taken does not appear; but the relator applied for a writ of prohibition, upon the ground that the intendant had no jurisdiction to try such a case; and this is the only question which we are called upon to consider,
It is very manifest that all these inquiries must be answered in the affirmative. The original charter of the town of Beaufort, granted in 1803, (8 Stat. 218,) expressly confers upon the town council the power “ to jnake and establish such by-laws, rules and regulations * * * that shall appear to them requisite and necessary for the security, welfare and convenience of the said town, or for preserving peace, order and good government within the same.” The act of 1872, (15 Stat. 136,) amending the charter of said town, confers the same powers, in much the same language, the limitation being that such by-laws and ordinances shall not be inconsistent with or repugnant to the laws of the state, and shall at all times be subject to revisa! or repeal by the general assembly of the state.
Certainly every one will admit that an ordinance to prevent the keeping of a bawdy-house within the limits of the town is an ordinance tending to the preservation of “peace, order and good government” in said town, and, therefore, clearly within the scope of the powers conferred by the charter.
Finally, the act of 1874 (15 Stat. 647) declares in Section 2, “ That the intendant or acting intendant of said town is hereby vested with all the power and jurisdiction given to trial justices of this state, and may hold court for the trial of violations of town ordinances, and may punish by fine or imprisonment, in his discretion, or both.”
From this review of the acts of the legislature, it is very
It is argued, however, that as the offence of keeping a bawdy-house is indictable at common law, it cannot be indictable before a trial justice, but that the Court of General Sessions has exclusive jurisdiction under Article IV., Section 18, of the constitution. So much of that section as relates to this matter reads as follows: “ The Court of General Sessions shall have exclusive jurisdiction over all criminal cases which shall not be otherwise provided for by law.” Hence, in order to bring any case within the exclusive jurisdiction of the Court of Sessions, it will be necessary to show that the trial of such case has not been “ otherwise provided for by law.” But, as we have seen, the trial of the case under consideration has been “ otherwise provided for by law,” and hence it is not within the exclusive jurisdiction of the Court of Sessions.
Again, it is argued that if the town authorities can take jurisdiction of a common law offence simply because they have adopted an ordinance prohibiting such offence under a specific penalty, then one of the two results must follow: either the municipal authorities have the power to change the common law, or a party maybe subjected to being twice tried and punished for the same act. For if the trial and conviction under the ordinance operates as a bar to the trial under the common law, then the ordinance operates a change in the common law, by mere municipal authority; but if it does not operate as a bar, then the offender is liable to be twice punished for the same act —and either of these results, it is contended, is too monstrous to be for a moment contemplated. In reference to this argument it is only necessary to say that the case as presented here does not necessarily involve the consideration of any such questions. It may be as well, however, to say that if it should be held that the ordinance operated a change in the common law, such change
Again, it is urged that the relator was entitled to a trial by »a juiy; and that this she could not get on her trial before the intendant. It may be observed that there is no evidence what•ever before us that the relator demanded a jury. But if she had made such demand there would have been no difficulty in obtaining a jury. The intendant, as we have seen, is invested with all the powers of a trial justice for the trial of violations of town •ordinances, and as one of the powers of a trial justice is to summon a jury when demanded, and the mode of proceeding by which a jury may be obtained, is pointed out in Section 31 of Chapter XXV., General Statutes, p. 200, it is difficult to see
The case of State, ex rel. John H. Page, v. Alfred Williams, Intendant, and Joseph Cohen, Marshal of the town of Beaufort, depends upon the same facts and must be governed by the same-legal principles.
The judgment of the Circuit judge, in both of the cases, is-affirmed.
Appeal dismissed.