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Ex Parte Tucker

Supreme Court of Mississippi, Division B
Oct 10, 1932
164 Miss. 20 (Miss. 1932)


noting that the statute setting up the county court provided for the transfer of the numerous misdemeanor indictments to that court

Summary of this case from Mallard v. State


No. 30128.

October 10, 1932.


Constitution must be construed as if intended to stand for great length of time.


Legislature may create court exercising same jurisdiction as circuit court so long as circuit court is superior thereto (Const. 1890, section 172).


Legislature may create inferior court having jurisdiction of felonies and have indictments originating in circuit court transferable to inferior court (Const. 1890, section 172; Code 1930, section 694).


Legislature could authorize circuit courts to transfer to county courts such indictments originating in circuit court as Legislature should deem expedient, leaving to circuit courts' discretion determination of how many indictments should be in fact transferred (Const. 1890, section 172; Code 1930, section 694).


Defendant being in court, no notice of order transferring indictment from circuit court to county court other than entry of order on minutes was necessary (Code 1930, section 694).


Word for "trial," in statute respecting transfer of cases from circuit court to county court, includes everything circuit court could have done had case not been transferred (Code 1930, section 694).


Cases transferred from circuit courts to county courts are appealable to circuit courts (Code 1930, section 694).

APPEAL from chancery court of Lauderdale county. HON. A.B. AMIS, SR., Chancellor.

W.D. Conn, Jr., Assistant Attorney-General, for the state.

That part of section 694 of the Code of 1930 is involved in misdemeanor cases, and in felony cases not capital, wherein indictments have been returned by the grand jury the circuit court may transfer with full jurisdiction all or any of the same, in its discretion, to the county court for trial.

The legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient.

Sec. 172, Constitution of 1890.

The legislature was acting within its constitutional limitations when it provided for the creation and establishment of county courts.

State ex rel. Knox v. Speakes et al., 144 Miss. 125, 109 So. 129.

Giving the legislature the constitutional right to create other and inferior courts, carries with it, by necessary implication, the right to assign it jurisdiction over certain classes of cases, which are not exclusively assigned to other court or courts.

The county court does not have original jurisdiction of felonies less than capital, because before it can try or otherwise dispose of a felony, it must have been transferred to it by the circuit court. This transfer is not a matter of right, because the statute provides that the circuit court may transfer, in its discretion, any and all of such cases.

The legislature had the right to confer concurrent jurisdiction of felonies less than capital on the county courts.

Houston v. Roystun, 7 How, 543; State v. Speakes, 144 Miss. 125, 109 So. 129.

It will be noticed that the order recites that the case is transferred to the county court for disposition. The word "disposition" is a very comprehensive term and includes everything that may be done with a case, and every possible turn that may take place until the case is finally terminated one way or the other. Under the statute, when such case is transferred, the county court has the right and power to dispose of such case as fully and completely as the circuit court had, and this includes the right of the court to enter a nolle prosequi and discharge the defendant from custody.

The legislature, has no power to abridge the original jurisdiction of the circuit court. If it had attempted to do so by providing that county courts shall have exclusive jurisdiction in all criminal cases, etc., and by requiring that the circuit courts shall send all indictment for offenses, of which the county courts have cognizance, to the latter courts for trial, the act would be unconstitutional; but as it conferred only concurrent jurisdiction in the cases specified, upon county courts, and made the sending of the indictments to the latter courts, not mandatory but directory or permissive, it is constitutional.

Myers v. The People, 67 Ill. 503.

Gilbert Cameron and J. Thomas Dunn, all of Meridian, for appellee.

The circuit court is a constitutionally created court with original jurisdiction of felony cases, and it is beyond the power and authority of the legislature to undertake to confer upon this constitutional court the right and power in its discretion to vest full jurisdiction in an inferior court of the right to try felony cases not capital.

The legislature therefore, by the section 694, Code of 1930, left the matter entirely optional with the circuit judge as to what cases would be transferred to the county court and what cases to be retained and tried in his own court. As to the felony cases not capital thus retained by the circuit judge for trial in the circuit court the county court has absolutely no jurisdiction under this act, but as to the felony cases, not capital, in which the circuit judge exercises his discretion to transfer, the act then undertakes to clothe the county court with full jurisdiction to try the same, or at least delegates this right to the circuit judge, who in turn may pass this jurisdiction on to the county court.

This statute only authorizes transfer of this character of cases to the county court for trial, nothing more nor less.

The word "trial" in a statute means nothing more or less than the things judicially happening from the time of the beginning of impaneling the jury up to the time of the reception of the verdict by the court.

Lipscomb v. State, 76 Miss. 254.

The county court could do nothing more nor less than enter upon trial of the case and then its jurisdiction ended; no authority is given to the county court to pass sentence, and thus the matter would end; no authority is given by this statute to the county court to certify the result of said trial back to the circuit court thus the matter would end.

The act provides for no appeal upon a conviction, if one had in the county court. The general statutes on appeal provided by the legislature and which govern the county court do not apply. All appeals from judgments in county court go directly to circuit court, and if you undertake to apply this general statute to convictions had in the county court in felony cases transferred to it from the circuit court you would then have the anomalous situation of the circuit court acting as an appellate court for the trial on record of a case appealed from the county court, and in which the circuit court as a constitutional court had the original and exclusive jurisdiction to try this case.

The statute does not provide for any notice to a defendant indicted in the circuit court by a grand jury of the fact that his case will be or has been transferred to the county court for any purpose, and notice being jurisdictional it goes without saying that the county court can in no wise under this act retain jurisdiction of one indicted for a felony not capital in the circuit court.

The constitution having conferred original jurisdiction upon the circuit courts of the state in all criminal matters, said jurisdiction cannot be withdrawn by the legislative department of the government and left to the discretion of a trial judge, as to whether he will transfer the case to another court or not.

Montross v. State, 61 Miss. 429.

Rule of court cannot confer jurisdiction on another court.

Bell v. O'Rourke, 11 La. 124.

A ratification of an invalid judgment of one court by another will be inoperative as one court cannot enlarge the powers of another.

Housley v. Lindsay, 10 Heisk. (Tenn.); Allen v. Von Rosenberg, 16 S.W. 1096.

Court cannot refuse jurisdiction because rights might be more conveniently and completely determined in another forum.

Kemball v. Neal, 44 Vt. 567.

Since all of the jurisdiction in all matters to be judicially noticed in this state has been vested in one of the courts created by the constitution, the legislature cannot divest the constitutional courts of any jurisdiction vested in them, and vest in it the inferior court of their own creation — it can only give to the inferior court concurrent jurisdiction with the superior court.

Houston v. Royston, 7 How. 543; State v. Speaks, 109 So. 129.

The phrase concurrent jurisdiction means equal jurisdiction.

State v. Sinnot, 35 A. 1007.

Concurrent jurisdiction is that jurisdiction exercised by different courts at the same time over the same subject matter, and within the same territory, and wherein litigants may, in the first instance resort to either court indifferently.

Hercules Iron Works v. Elgin J. E. Co., 30 N.E. 1051.

The inferior courts established under section 172 of the constitution are, in their jurisdiction independent of the courts erected under section 171.

Hughes v. State, 29 So. 786.

It is a fundamental truth that no branch can delegate powers belonging to it, to the other department.

Alcorn v. Hamer, 28 Miss. 652.

Section 694 of the Code of 1930 conferred on the circuit court, a part of the judicial branch of our government, the sole power of saying whether or not the county court would ever try a felony case, not capital. No limitations were outlined on that discretion. If the circuit court does not see fit to transfer under this statute, the county court is as powerless to try such a case as it would be to try a capital offense under our present statutes.

The legislature is the sole body of our government that can prescribe the jurisdiction of the county court, and the only jurisdiction it can prescribe is a concurrent jurisdiction an equal jurisdiction with one of the constitutional courts; in this statute, the legislature failed to do that; it conferred its legislative powers on the circuit court, and attempted to clothe the circuit court with the authority to fix jurisdiction. This statute is an out and out attempt to delegate to the circuit court part of the legislative powers of our government.

Section 694 of the Code of 1930 is unconstitutional because it violates the due process clause of our state constitution in that no notice is required to be given to defendant of the transfer of his case to the county court.

Due process of law requires that "there shall be notice and opportunity for hearing given the parties."

Roller v. Holly, 176 U.S. 398.

Due process requires that the court which assumes to determine the rights of the parties shall have jurisdiction.

Pennoyer v. Neff, 95 U.S. 714.

Argued orally by W.D. Conn, Jr., for the state and by Chas Cameron and Tom Dunn, for appellee.

An indictment was returned into the circuit court of Lauderdale county against Bruce Tucker on the 5th day of February, 1932, charging said Tucker with burglary. On the 13th day of February, 1932, the sheriff of said county arrested said Tucker and placed him in jail, where he has since remained. On March 9, 1932, the circuit court of said county transferred the said indictment to the county court. On the 15th day of April, 1932, the county court on the recommendation of the district attorney and the county prosecuting attorney entered an order of nol. pros. in said case and that the defendant therein be forthwith discharged. The sheriff declined to honor the order of the county court, and on the 16th day of April, 1932, the said Tucker presented to the chancellor a petition for a writ of habeas corpus, setting forth the facts aforementioned; and on the same day the chancellor declined to issue the writ on the ground that the county court was without jurisdiction in the premises and that its order of nol. pros. was void.

The principal question presented is whether that portion of section 694, Code 1930, which authorizes the transfer of indictments to the county court for trial, is constitutional and valid. The entire of that section reads as follows: "In misdemeanor cases, and in felony cases not capital, wherein indictments have been returned by the grand jury the circuit court may transfer with full jurisdiction all or any of the same, in its discretion, to the county court for trial; and the said county court shall have jurisdiction of and shall proceed to try all charges of misdemeanor which may be preferred by the district attorney or by the county prosecuting attorney on affidavit sworn to before the circuit clerk of the county; and prosecutions by affidavit are hereby authorized in misdemeanor cases under the same procedure as if indictments had been returned in the circuit court and same had been transferred to the county court."

When the county court was created in 1926, the said section authorized the transfer only of misdemeanor indictments; the purpose being to relieve the dockets of the circuit courts of the larger counties of the crowding and expense caused by the numerous indictments for misdemeanors, the smaller offenses, which could be more expeditiously and economically handled by an inferior court. This worked so well in most of the counties having the county court that the legislature in 1930 added the provision for the transfer of felony cases, not capital.

The section is attacked as being invalid on several asserted grounds. We think those which are of sufficient importance to be stated here are as follows:

1. That the portion of said section 694 complained of is unconstitutional because therein the legislature has attempted to delegate a legislative power to the judicial branch of the government;

2. That the said portion is unconstitutional because no provision is made for notice to the defendant that his case has been transferred.

In reviewing our constitutional provisions in respect to the circuit and chancery courts, in which courts all original jurisdiction is vested, other than the petty jurisdiction of the courts of justices of the peace, we are confronted with the definite conclusion that there are no provisions or means by which there can be more than one circuit court or chancery court district in any one county, which is to say, there can be no more than one circuit judge and no more than one chancellor in a given county. Nevertheless, a constitution is to be construed as if intended to stand for all time or at least for a great length of time. Moore v. General, etc., Corp., 155 Miss. 818, 823, 125 So. 411. We must credit the makers of our constitution with wisdom and foresight and we must, therefore, assume that they foresaw the day, and provided in the constitution therefor, when some one or more of the counties of the state would increase in population and in business to the extent that one circuit court and one circuit judge could not try all the business which under the jurisdiction conferred by the constitution would come into the circuit court in the particular county, and likewise as to the chancery court.

We must look then to see what provision was made to take care of this anticipated development. Upon such a search we find one provision, and one provision alone, to that end, and that is section 172 of the Constitution, which provides that "the legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient." Under this section the Criminal Court Act of 1836 was held constitutional in Thomas v. State, 5 How. 20, and so was the Vice Chancery Court Act of 1842 in Houston v. Royston, 7 How. 543, and likewise the present County Court Act in State v. Speakes, 144 Miss. 125, 109 So. 129. It is well settled by those decisions that the legislature may create inferior courts which shall exercise a jurisdiction far beyond that of a petty court. In fact, it is settled that as respects its constitutional validity all that is required of a court created by legislative act under the quoted constitutional section is that when a new court is created which shall exercise a part of the jurisdiction vested by the Constitution in another court, the said new court must be inferior in ultimate authority to the constitutional court whose jurisdiction is of the same character as that given to the new court. See State v. Speakes, 144 Miss. 125, 159, 109 So. 129. It is competent, therefore, to create a court which may be permitted to exercise in full measure the same jurisdiction as the circuit court, so long as the circuit court shall be superior thereto and this attribute of superiority is accomplished by giving the circuit court the controlling authority of reversal, revisal, correction, and direction over the new court, as by certiorari, appeal, etc.

Therefore an inferior court may be created which may have jurisdiction of felonies, and we see no good reason to hold that in order that such a court having such a jurisdiction shall be put into existence and into operation, the indictments must originate in that court, rather than that they may be returned by a grand jury in the circuit court and thence transferred for trial to the inferior court. Provisions for the transfer of causes are not novel in the jurisprudence of this country, as may be seen by the numerous cases annotated in 15 C.J., pp. 1145-1147. Pursuing the thought expressed at the outset of this opinion, we can well envisage the day when the business of a county, or of each of several counties shall have grown to the extent that the said county shall constitute a judicial district, and that the circuit court in said county constituting said district shall remain open, in continuous session, throughout the year and that the entire time of the circuit judge would be occupied in the hearing of appeals, certiorari, and the like to and from inferior courts. In such a situation it can be clearly seen that it would be the better method to require all law suits to be filed in the first instance in the circuit court, and that all indictments should be by grand juries impaneled by and in said circuit court, and that by or under the direction of the said circuit court, the business, civil and criminal, should be at short intervals and from time to time transferred to the inferior courts for trial, with appeal and other supervisory powers vested in the circuit court, thus keeping the business of trials balanced and equalized among the inferior courts working under the circuit court in said county.

Looking then at the Constitution as an instrument ordained to stand for all time or for many generations, and keeping in mind that there is an incidental constitutional grant of those powers which are necessary and proper to carry into practical effect the express grants of power, we are now prepared to hold that, in the establishment of the county court, it was within the constitutional authority of the legislature to authorize the circuit courts to transfer for trial to the county courts, all or such part of the indictments originating in the circuit court as the legislature should deem expedient, leaving to the discretion of the circuit court the determination of the question whether, and how many of, these indictments so authorized to be transferred should, at any given time or on a particular occasion, be in fact transferred. It would not be competent for the legislature to enact in a mandatory manner that all or any particular classes of the indictments shall be transferred, for this would be to that extent to strip the circuit court of its constitutional original jurisdiction, Myers v. People, 67 Ill. 503; from which it follows that the one and only constitutional method of effectuating the transfer is for the legislature to provide what class or classes of indictments may be transferred, and to provide that within the limitations so prescribed the discretion so to order shall be vested in the circuit court, and that exactly is what the quoted section, 694, Code 1930, does.

There are other considerations leading to the same conclusion, but we deem the above discussion as sufficient upon the first objection as herein restated. Passing to the second, it will be observed that the order of transfer was not made until the capias had been personally served on the defendant. He was in court and was bound to take notice of all the lawful steps taken in his case thenceforward. It was lawful to make the order of transfer, and since the defendant was in court, no other notice than the entry of the order on the minutes was necessary. It may well be argued that notice is required where the order is extremely unusual or highly improbable, but as to this we express no final opinion; there being no showing here that this order in the particular court was unusual or improbable.

It is argued also that the statute only authorizes a transfer "for trial," and that an order of nol. pros. is not a trial nor any part of a trial. We hold that the words "for trial" in said section 694 are used in the broad sense of that expression and include everything that the circuit court could have done under the indictment had the case not been transferred.

Finally it is contended that there is no appeal to the circuit court from a conviction in the county court under a transferred indictment, and that for this reason the court should hold the provisions in respect to the transfer of indictments to be invalid. There is more than one answer to this contention, but it is sufficient to say that these transferred cases are appealable to the circuit court exactly as are other cases adjudged in the county court.

Reversed and remanded.

Summaries of

Ex Parte Tucker

Supreme Court of Mississippi, Division B
Oct 10, 1932
164 Miss. 20 (Miss. 1932)

noting that the statute setting up the county court provided for the transfer of the numerous misdemeanor indictments to that court

Summary of this case from Mallard v. State

In Ex parte Tucker, 164 Miss. 20, 143 So. 700 (1932), the Court explained exactly why a legislatively created court is "inferior."

Summary of this case from Marshall v. State
Case details for

Ex Parte Tucker

Case Details


Court:Supreme Court of Mississippi, Division B

Date published: Oct 10, 1932


164 Miss. 20 (Miss. 1932)
143 So. 700

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