| S.C. | Jan 15, 1820
Lead Opinion
The opinion of the Court was delivered by
The defendant was indicted, tried, and convicted, in the Inferior City Court of Charleston, for retailing spirits without a license, contrary to the Act of Assembly in such case made and provided, and a motion was made in this Court to arrest the judgment.
There are several cases on the docket which depend on the questions involved in this case, and the grounds stated in the briefs, which have been furnished', are so multifarious and diversified, that it would be inconvenient to introduce them here, and they are deemed unnecessary, as the *2341 Case maJ more Conveniently considered, and better understood, ^ by confining it to a general division of the principles involved in the various questions made.
They present the following points:
1. Whether the judge of that Court (the Recorder of the city,) has been appointed in such a manner as to authorize the Legislature, by act, constitutionally to confer on him the judicial power under which he claims jurisdiction of this cause, and others of the same class ?
2. Whether the sheriff of that Court is constitutionally appointed, and if not, whether the whole proceedings of the Court are not illegal and void ?
3. Whether the mode of proceeding by indictment is authorized by the Act creating this offence ?
Before entering on the question in relation to the appointment of the judge of the Inferior City Court, and the jurisdiction of that Court over the offence charged in the present case, it will be necessary to take a cursory view of its organization and the Act by which this jurisdiction is conferred.
The Act under which that Court claims jurisdiction of the present cause, was passed in December, 1818.
Under the authority of the Acts of incorporation, no one will question that the corporation had the power to elect both a Recorder and a Sheriff, and the question involved in the first point is resolved into the inquiry, * whether the Act of 1818, conferring this increased juris- r*o36 diction over cases and offences relating to the laws of the State, ^ is constitutional or not? As preliminary to this question, I will merely remark, that it is an axiom that does not now require the aid of reasoning
Let us then inquire whether the Legislature are forbidden to transfer a part of the jurisdiction of the Courts of the State to a tribunal thus constituted.
By the first section of the third article of the constitution, it is provided,
But it is said, that he is exclusively the creature of the corporation, and therefore not entitled to decide on questions over which they possess no power. This may be true so far as he derives his power from them, but the very Act under which he is authorized to take cognizance of this cause, jpro hao vice, constitutes him an officer of the State, and he may be literally said to be serving two masters, the corporation and the State, the former in respect to the power derived from it, and so as to the latter.
If this view of the subject be correct, it follows, that the judge has been appointed and commissioned constitutionally and legally to hold an inferior Court, and it only remains to be inquired, whether it becomes superior in consequence of the powers conferred on it by the Act under which this prosecution was entertained ? The words, superior and inferior, as here used, do not belong to any class of the Acts which circumscribe their meaning, and must therefore be received in their ordinary acceptation, and in relation to this subject, the former may be defined to be that jurisdiction which possesses a controlling power over all others, and the inferior that which is subordinate to it.
Let the powers of the two Courts, then, be tested by these definitions.
The City Court, by the act creating it, is denominated the Inferior Court, its limits are confined to Charleston, and its inhabitants, and its jurisdiction in criminal, cases to that class of offences denominated ^misdemeanors, and in civil cases to $500. If this comparison r*9qo be just, its inferiority is manfest. L
But it is said, that the unlimited jurisdiction conferred on it in respect to misdemeanors is superior, inasmuch as the Court of Sessions could not control it in relation to them. The conclusion is just, but the argument I think fallacious; for if to have concurrent jurisdiction with a superior Court, over a limited class of cases of inferior grade, constitute the inferior Court its equal, the distinction is idle and useless, for all the Courts and jurisdictions in existence at the adoption of the constitution, and since organized, possess, in some measure, concurrent jurisdiction ; thus from £3 to $20
Again, it is urged that this Court cannot control the Inferior City Court in the exercise of the jurisdiction given by this act, inasmuch as the act itself declares the jurisdiction concurrent with the Courts of Common Pleas and Sessions, and vests the same powers in the judge over them, [matters within the jurisdiction,] and that, therefore, that Court becomes superior in respect to those powers. But I think this is no test of superiority. The only power which a superior Court can legally exercise over any inferior or limited jurisdiction, except by way of appeal, is to keep it within the pale of circumvallation *drawn r^oqq around it; and within it the jurisdiction of a single magistrate is *- as omnipotent as the House of Peers in England. And the true distinc
It may be said, that pursuing this course of reasoning to an extreme, a jurisdiction might be thus created, treading so closely on the heels of the Courts of Sessions and Common Pleas, as to render it difficult to distinguish their footsteps. But so long as there is a jurisdiction possessing a controlling power over it, the judges of which are appointed in the manner prescribed by the constitution, the citizen has all the security which was deemed necessary, and which is provided by the Constitution ; and, for myself, I am unable to discover any provision in the Constitution which precludes the Legislature from providing by law, for a Court exercising unlimited jurisdiction, and for the mode of appointing a judge, so long as there is a jurisdiction to which it is subordinate ; and I think this view is fully supported by the powers exercised by the County Courts, in many cases their jurisdiction was unlimited, and if they might in one' instance encroach on the jurisdiction of the Common Pleas and Sessions, I see no point at which they might be arrested.
The objection to the illegality of the proceedings of the Court, on the ground that the sheriff was not constitutionally appointed, is not specifically pointed out by the briefs, and the only one urged at the bar, was that by the 6th article, 2d section, of the Constitution, it is provided that “sheriffs shall hold their offices for four'years, and not be again eligible for four years,” &c., and that the sheriff of this Court, by the by-laws, is elected every year, contrary to this provision of the Constitution. I do not see how this question can affect the case under consideration, in any *9401 VJGW- *sheriff is not otherwise necessary to a Court than to J execute its orders and its process ; he certainly has no participation in the judgment of the Court, and if there had been no sheriff, I see no reason why the Court would not be at liberty to pronounce its judgment. But giving the objection its full weight, it is equally unavailing. If the sheriff elect was disposed to insist on it,
The remaining question relates to the mode of proceeding.
There is no doubt about the principle, that when an act imposes a penalty, and points out the mode of proceeding, it must be pursued, and the only question is whether a bill of indictment is covered by the term bill in the Act ? Bill, as a generic term, would necessarily include it. But it is argued, that when used in an Act, it has a precise technical meaning, and is applied to a species of private proceeding in use in the Courts
It is said, however, that it has been otherwise ruled by this Court, and cases have been referred to as decisive of the question. Were I satisfied that it was so, *however-reluctantly, I would readily yield my own r*o¿i opinion in conformity to the general principle which governs this Court, never to depart from its adjudications, except from the most imperious necessity, but the cases were decided at a time when the opinions of this Court were delivered ore terms, and were forgotten as soon as the occasion which gave rise to them had passed away, or preserved only by imperfect memoranda, hastily made, and probably remodeled from memory long after. I think, therefore, that the evidences of these decisions are too equivocal to justify the Court in departing from what I conceive to be law, sanctioned by the most inveterate usage, and indeed I cannot, by the utmost stretch of liberality, reconcile these supposed decisions with so uniform a practice, both anterior and subsequent.
1783, 1 Stat. 99, §§ 4, 6; see 1784, 7 Stat. 101; 1791, 7 Stat. 107.
7 Stat. 300.
§ 2.
§ 3.
7 Stat. 319, § 1.
Stat. 189.
190.
“$12.857 to $20.” This is a mistake, and the same is in 1 Brev. R. 44. It should "be, “from £20 currency, (equal to $12.2448) to $20.” See Act of 1747, P. L. 214, (referred to, 3 Stat. 699, but not found in any subsequent volume of the Statutes at Large;) Act of 1799, 7 Stat. 296, altered by Act of 1824, 6 Stat. 239; Cade v. Vaughn, 2 Rich. 53; note, 4 Rich. 552; post. 362.
A pound currency was one-seventh of a pound sterling; and in the province of South Carolina, where the Spanish milled dollar was estimated at four shillings and eight pence, the pound sterling was equal to $4.285714. Introduct. to Brev. Dig. p. xii.
7 Stat. 291, clause 9.
4 MoC. 68.
1741, 3 Stat. 583, § 7; see also (post. 309,) 1785, 7 Stat. 236, & 53; 1801, 5 Stat. 399 ; 1825, 9 Stat. 504, § 23; 1842,11 Stat. 225 ; 1849,11 Stat. 557; Cheves, 220; 3 Hill, 188; 1 N. & MoC. 27; Grimke’s P. L. Appendix No. 2, p. 24; 2 Brev. 83, Cont.
See 1 N. & McC. 23.
MS., noticed in 2 Rice’s Dig. 250, \ 3; but not in Brevard’s Reports, as they have been published.
Concurrence Opinion
I concur on all the grounds, but that upon the indictment, which is considered as settled.
Dissenting Opinion
I dissent upon the ground, that the Act gives to the City Court no cognizance of any misdemeanor, except that of assault and battery.