Opinion
No. 27227.
June 11, 1928. Suggestion of Error Overruled July 18, 1928.
1. COURTS. Legislature could confer upon police justices jurisdiction concurrent with justices of the peace within territorial limits of municipality ( Constitution 1890, sections 171, 172).
Police court, under Constitution 1890, section 172, is independent of court provided for by section 171, and legislature had power to confer upon police justices jurisdiction concurrent with justices of the peace within territorial limits of municipality.
2. COURTS. Police justice of city of Jackson held to have jurisdiction concurrent with justice courts in all matters civil and criminal ( Hemingway's Code 1927, sections 7063-7092; Laws 1912, chapter 120).
City of Jackson, operating under commission form of government under Laws 1912, chapter 120 (Hemingway's Code 1927, sections 7063-7092), having passed ordinance under authority of Laws 1912, chapter 120, section 14 (Hemingway's Code 1927, section 7076), creating police court with such jurisdiction as was conferred on police courts by state laws and municipal ordinances then in existence and not inconsistent with Laws 1912, chapter 120, and an ordinance creating office of police justice and requiring him to perform duties required of police justices by state laws and city ordinances not inconsistent with Laws 1912, chapter 120, police justice of city has jurisdiction concurrent with justice courts in all matters civil and criminal.
APPEAL from circuit court of Hinds county, First District; HON. W.H. POTTER, Judge.
S.C. Broom, for appellants.
It will be observed that the Constitution divided the county into five justice of the peace districts and fixed and prescribed the territorial limitations of the same. See section 170, state Constitution. Section 171 makes it more certain as to territorial limitations and provides that one is ineligible unless he has resided in the district two years before his election. He shall hold his office four years. You will observe that the Constitution makes the county a five-wheeled vehicle — not six or more; and to emphasize the fact that it means just what it says, section 90 of the Constitution places a limitation upon the legislature to change it. Paragraph (t) says there is one thing you can't do and that is to create new districts for the election of justices of the peace and constable. Section 170 provides for the election of supervisors in the five districts; their territorial limitations are fixed; would you say that we might have one at large for the city of Jackson embracing a part of two or more of the five districts?
We do not question the right, the constitutional rights, of the legislature to create the inferior court of police justice nor their right to make him an ex officio justice of the peace in and for his municipality, provided that municipality is all within one and the same justice of the peace or supervisor's district. We know as a matter of common knowledge that when the law was enacted creating the inferior court of police justice and ex officio, it was never contemplated, the mind of the legislature was not directed to the situation, where a municipality was partly in two separate districts.
It is not necessary to determine in this case whether or not he can be a police justice in a municipality lying in two different justice of the peace districts. We concede that he can and it matters not which district in the municipality he resides in, because that is another type of inferior court and its territorial limitations are not fixed by the Constitution. We concede the right to create the county court, but if the legislature had said, there is hereby created a justice of the peace at large whose territorial jurisdiction shall be for the entire county, then the act would have been unconstitutional and obnoxious to paragraph (t) of section 90 of the state Constitution which provides against special law, etc.; 35 C.J. 490-91; 12 C.J. 816; State v. Locker, 226 Mo. 384, 181 S.W. 1001; In re Thompson, 85 N.J. Eq. 221; State v. Noble, 118 Ind. 350.
It must be conceded that unless Penix is a lawful police justice he can't be an ex officio justice of the peace. The admitted facts are that he has never been elected, commissioned or bonded; that he does not hold office for the term of mayor and yet the statute provides that he shall be elected. But we maintain that if he is a police justice in and for the city of Jackson he is nevertheless without jurisdiction as an ex officio justice of the peace to try the appellants herein because of the facts set forth above.
This precise question has never been settled by our supreme court. The case of Bell v. McKinney, 63 Miss. 187, presented this question: The town of Chesterville is partly in Lee and partly in Pontotoc counties. The mayor lived in Pontotoc. McKinney was alleged to have committed a trespass on lands in Lee county and outside the municipality. He was convicted and sent to jail and this was a suit for damages for false imprisonment. It will be observed that all parties admitted in their brief that the mayor would have had jurisdiction. As a justice of the peace, I seriously doubt it. At any rate it was not necessary to decide this question in that case, therefore this case is not in point and has no bearing on the case now under consideration. Poplarville Saw Mill Company v. Marx Sons, 117 Miss. 10; Heggie v. Stone, 70 Miss. 39; Rich v. McLaurin, 83 Miss. 95.
Powell, Harper Jiggitts, amici curiae, for appellee.
The first point raised by appellants is that J.H. Penix had no jurisdiction in this case because he did not hold his court in the same district in which he lived. Appellants state that J.H. Penix holds his court in district five but lives in district one. As authority for their contention that Penix must live in the same district in which he holds his court they cite sections 170 and 171 of the Mississippi Constitution. The mistake which appellants make is apparent. They place the court of police justice under section 171 of the Constitution of Mississippi. The true status of the police court of the city of Jackson, Mississippi, is that it is an inferior court established under and by authority of section 172 of the Constitution of Mississippi, 1890. Hughes v. State of Mississippi, 79 Miss. 7; State ex rel. Knox v. Speakes, 144 Miss. 125; Bell v. McKinney, 63 Miss. 187; Poplarville Saw Mill Company v. A. Marks Son, 117 Miss. 10; Faulkner v. State, 134 Miss. 101, at 108; Rich v. McLaurin, 83 Miss. 95.
Appellants seem to lose sight of the fact that J.H. Penix is not a justice of the peace, but is police judge with the powers of a justice of the peace.
Title to an office cannot be questioned by plea in abatement. See Pringle v. State, 108 Miss. 802. The only way in which the title to the office now held by J.H. Penix can be raised is by quo warranto. This is specifically held in the case of Wilson v. State, 113 Miss. 748; Town of Sumner v. Henderson, 116 Miss. 64; Mayor Board of Aldermen of the City of Jackson v. State, 102 Miss. 663, 59 So. 873; Hem. Code 1917, sec. 5926.
That the city council had a right in view of the above authorities, to create a police court and a police justice and to give to the police justice and to the court certain broad powers cannot be questioned. Sec. 6059 of Hem. Code 1917.
Hendrix Burkett, for appellee.
The main contention of appellants is that J.H. Penix, police justice and ex officio justice of the peace for the city of Jackson, has no jurisdiction to try this case against appellants because the city of Jackson, the corporate limits of which comprises the district of the court over which J.H. Penix presides, is divided by a supervisor's district line, and that the police justice and ex officio justice of the peace lives in a different supervisor's district from the one in which appellants live, and because J.H. Penix happens to live in a different district from the one in which he holds court, although all the parties, both appellants and the judge of the court, live within the corporate limits, and are residents of the city of Jackson, and because of these reasons, this court has no jurisdiction of this case.
Section 172 of said Mississippi Constitution provides that: "the legislature shall from time to time establish such inferior courts as may be necessary, and abolish same whenever deemed expedient." Under this section of the Constitution, the legislature established the court of police justice. See Bell v. McKinney, 63 Miss. 187; Riley v. James, 73 Miss. 1, 18 So. 930.
The law which creates the court of police justice and ex officio justice of the peace is section 5926, Hemingway's Code, which after stating his qualifications and powers, adds: "He shall hold his courts in the Municipal Building. That he may sit as committing court in all violations of the law, within the county outside of the Municipal corporation, and of all felonies within the corporation. "He shall be ex officio justice of the peace in all cases arising within the corporate limits of the municipality, and he shall discharge his duties as such." "He shall keep a separate docket as justice of the peace." Thus, we see that his powers and his jurisdictions are not only sharply defined, but made mandatory. See Jackson v. State, 102 Miss. 663, 59 So. 873.
Counsel for appellants urges that J.H. Penix, has never been elected by popular vote, that he is under no bond, nor does he hold any commission from the Secretary of the state, or other state authorities. The question as to whether or not the city of Jackson has more than seven thousand inhabitants does not enter into this case, since the city of Jackson has been operating under the commission form of government since 1912, and, therefore, the section of our Code, which provides for the election of police justice by the people of the municipality in a city having more than seven thousand inhabitants, is not now in effect in Jackson, Mississippi, the police justice having derived his powers and duties from the commission of the city of Jackson, those same powers having been placed in the commission by the Commission Government Act of 1912. We contend that there is no merit in this contention of the appellants.
Counsel for appellants make a serious mistake of assuming that the court of police justice and ex officio justice of the peace was created under the provision of section 171 of the Constitution, instead of section 172. Hughes v. State, 79 Miss. 77, 29 So. 786.
The comments of counsel for appellants, relative to section 90 of the state Constitution, which provides that the legislature shall not pass local, private, or special laws, provided for the creation of districts for the election of justices of the peace and constables, has nothing to do with this case.
Counsel for appellants insists that this question has never been before this court. We contend that this question has been decided by this court in a number of cases, and that the cases presented on those occasions are possessed of much more merit and are much stronger cases than appellants bring here at this time. Bell v. McKinney, 63 Miss. 187; Poplarville Saw Mill Co. v. A. Marks Sons, 117 Miss. 10, 77 So. 815; Pringle v. State, 108 Miss. 802.
Argued orally by S.C. Broom, for appellant, and Lewis Jiggitts and John G. Burkett, for appellee.
The appellee, Logan Phillips, a copartnership composed of W.H. Phillips and Cowan Dixon, instituted suit in the court of J.H. Penix, police justice and ex officio justice of the peace in and for the city of Jackson, in Hinds county, Miss., upon a promissory note executed by the appellants. A plea to the jurisdiction of the court was filed and was overruled, and no further defense being offered, a judgment was entered in favor of the appellee for the amount sued for. From this judgment, an appeal was prosecuted to the county court, and there a demurrer to the plea to the jurisdiction was sustained, and a judgment was entered against the appellants. On appeal to the circuit court, the judgment of the county court was affirmed, and from the judgment of the circuit court this appeal was prosecuted.
Upon the hearing of the plea to the jurisdiction and the demurrer thereto, counsel for the respective parties entered into an agreement as to the facts, from which it appears that the city of Jackson, Miss., has a population in excess of seven thousand, and since January, 1913, has been operating under what is known as the commission form of government, as provided by chapter 120, Laws of 1912, and amendments thereto; that the city of Jackson lies partly in supervisor's district No. 1 and partly in supervisor's district No. 5, the dividing or district line being Capitol street in said city; that J.H. Penix was elected police justice of said city by the mayor and commissioners, and was actively engaged in the discharge of the duties of the office, although he had executed no bond either as police justice or ex officio justice of the peace; that said J.H. Penix resides within the corporate limits of the city, but in supervisor's district No. 1; that he holds his court in the Municipal Building of the said city, which is located in supervisor's district No. 5; that the defendants both reside within the corporate limits of said city, but in supervisor's district No. 5; and that the said J.H. Penix acted, in the case at bar, as ex officio justice of the peace.
It was further agreed that on January 21, 1913, the mayor and commissioners of the said city of Jackson adopted the following ordinances creating a police court and the office of police justice:
"Police Court Created.
"675. There is hereby created a police court of the city of Jackson, which shall be presided over by the police justice. All state laws and city ordinances now in existence and not inconsistent with chapter 120 of the Laws of Mississippi of 1912, relating to said court, shall govern the same."
"Police Justice, Office Created, Duties.
"676. There is hereby created the office of police justice of the city of Jackson, who shall be elected by the council at the same time as all other officers, and who shall perform all the duties now required of the police justice by state laws and city ordinances, not inconsistent with chapter 120 of the Laws of Mississippi of 1912."
By their plea to the jurisdiction of the court, the appellants also sought to challenge the election and qualification of J.H. Penix, and his right to hold the office of police justice and ex officio justice of the peace; but, on appeal, it is conceded that the title to the office cannot thus be raised and adjudicated in this proceeding, and the only question for decision is whether or not, under the facts above stated, J.H. Penix, the acting police justice and ex officio justice of the peace in and for the city of Jackson, had jurisdiction of this cause.
Section 170 of the Constitution of 1890 provides that "each county shall be divided into five districts," while section 171 provides that "a competent number of justices of the peace and constables shall be chosen in each county in the manner provided by law, for each district, who shall hold their office for the term of four years," and "no person shall be eligible to the office of the justice of the peace who shall not have resided two years in the district next preceding his selection." The appellants contend that in the trial of this cause, Penix was acting as a justice of the peace within the purview and terms of these provisions, and that since he resided in supervisor's district No. 1, he was without jurisdiction in district No. 5, where the court was held and where the appellants resided. This contention of appellants must be sustained if they are correct in the view that the police court and the office of police justice and ex officio justice of the peace in municipalities are created under the provision of section 171 of the Constitution. We do not think, however, that in creating the police court, and conferring upon police justices the same jurisdiction as given to justices of the peace, the legislature was attempting to create additional justice of the peace districts with jurisdiction limited to the territorial limits of the municipality, but that it was exercising the authority conferred upon it by section 172 of the Constitution to, "from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient."
Section 172 of the Constitution of 1890 is in the same language as section 24 of article 6 of the Constitution of 1869, and in discussing the power of the legislature to establish a police court and to confer on the mayor of a municipality or a police justice the same jurisdiction as is conferred on justices of the peace, the court, in Bell v. McKinney, 63 Miss. 187, said:
"Under article 1, section 31, and article 6, section 24, of the Constitution, which provides that the legislature may establish in addition to the courts designated in the Constitution other inferior courts, and in cases of the misdemeanors therein enumerated may dispense with the inquest of a grand jury and authorize prosecutions before justices of the peace or such other inferior courts as may be so established, it is competent for the legislature to invest the mayor of an incorporated town with the criminal jurisdiction of a justice of the peace, or to declare that the mayor of such town shall be ex officio a justice of the peace in the corporate limits of the town in which he was elected. A mayor's court thus constituted would be an inferior court within the meaning of the constitutional provisions above referred to."
Section 3001, Code of 1892 (section 3399, Code 1906; section 6943, Hemingway's 1927 Code), provided that the mayor and board of aldermen of cities of certain specified population were authorized to elect a police justice; and in municipalities where no police justice was elected, that the mayor should be the police justice; and that in either case the police justice should be ex officio a justice of the peace in and for the corporate limits of the municipality. In the case of Hughes v. State, 79 Miss. 77, 29 So. 786, the jurisdiction of a police justice to try an offense against the state laws was challenged, and in response to the contention that a police justice could not exercise the authority conferred upon justices of the peace in misdemeanor cases, the court said:
"Section 3001, Ann. Code 1892, expressly authorizes cities having four thousand or more inhabitants to select a police justice, who shall have the power of a justice of the peace within the corporate limits, and also authority to try all infractions of city ordinances. It is not questioned that Duke was duly selected and qualified as police justice of Water Valley in conformity with the statute creating such office, and we cannot doubt the power of the legislature to create the office, and to clothe it with the jurisdiction prescribed by section 3001. How the election of two justices of the peace, in the district including Water Valley, and their readiness to act in the execution of their offices at the time of the trial of Hughes by Duke, affects the authority of Duke, we cannot see. The justices themselves, and no one for them, have any more right to complain of the authority conferred upon a police justice than a police justice has to complain of the authority conferred upon justices of the peace. The offices are not made for the incumbents, but for the public welfare, and each office stands upon a constitutional basis. The inferior courts established under section 172 of the Constitution are, in their jurisdiction, independent of the courts erected under section 171, and the number of these courts and their respective jurisdiction are within legislative authority, and their creation can be complained of only to the legislature itself."
We think these two cases are decisive of the question presented by this appeal. The police court is created under and by virtue of the provisions of section 172 of the Constitution of 1890, and, in respect to jurisdiction, is entirely independent of the court provided for by section 171 of the Constitution, and it was competent for the legislature to confer upon police justices jurisdiction concurrent with justices of the peace, within the territorial limits of the municipality. In so doing, the legislature has not created additional justices of the peace, but has established an inferior court to be presided over by a police justice, who, by virtue of his office, shall, within the limits of the municipality, have jurisdiction concurrent with courts of the justices of the peace in all matters, civil and criminal. The right or power of the legislature to establish such additional inferior courts, and confer upon them jurisdiction concurrent with the jurisdiction conferred by section 171 of the Constitution upon justices of the peace, was upheld in State v. Speakes, 144 Miss. 125, 109 So. 129, in which the constitutionality of chapter 131 of the Laws of 1926, known as the County Court Act, was involved.
The city of Jackson is operating under the commission form of government. Chapter 120, Laws of 1912, sections 7063 to 7092, inclusive, Hemingway's 1927 Code. Section 14 of said chapter 120, section 7076, Hemingway's 1927 Code, provides that the city council (composed of the mayor and two commissioners) shall, except as limited by the act, have, exercise, and perform all executive, legislative, and judicial powers, duties, and obligations exercised or performed by the mayor and board of aldermen acting for the city at the time of the adoption of the provisions of the act by the said city; and that the council shall also have power from time to time, to create, fill, or discontinue any and all offices and employments other than those created by the act. Acting under the authority of this section, the city of Jackson passed an ordinance creating a police court with such jurisdiction as was conferred on police courts by state laws, and the municipal ordinances then in existence, and not inconsistent with said chapter 120, Laws of 1912. It likewise passed an ordinance creating the office of police justice, and requiring said police justice to perform all the duties required of police justices by state laws and the city ordinances, not inconsistent with said chapter 120, Laws of 1912. Under these ordinances and the state laws creating police courts and the office of police justice and ex officio justice of the peace, and fixing the jurisdiction thereof, the police justice of the city of Jackson has jurisdiction concurrent with the justice courts in all matters, civil and criminal, and the court below having so held, its judgment will be affirmed.
Affirmed.