Ex Parte Steele., 577.

• Decision Date: 07 January 1942
• Docket Number: No. 577.,577.
• Citation: 220 N.C. 685,18 S.E.2d 132
• Court: North Carolina Supreme Court
• Parties: Ex parte STEELE.

18 S.E.2d 132

220 N.C. 685

Ex parte STEELE.

No. 577.

Supreme Court of North Carolina.

Jan. 7, 1942.

Appeal from Superior Court, Bladen County; Luther Hamilton, Special Judge.

Habeas corpus proceeding by Eldon Steele for discharge from custody in a prison camp under a commitment from a justice of the peace. To review a judgment ordering petitioner's discharge from custody, the Attorney General, on the State's behalf, brings certiorari.

Reversed.

Application by Attorney General on behalf of the State for certiorari to review judgment of Hamilton, Special Judge, rendered 28 April, 1941, in the Superior Court of Bladen, on return to writ of habeas corpus in which Eldon Steele, held in prison camp under commitment from a justice of peace, was discharged from custody, it being found upon the hearing that the accused was held under a void judgment.

The facts are these:

1. On 14 April, 1941, in Rockingham Township, Richmond County, upon affidavit duly filed before John H. Yates, justice of the peace, a warrant was issued for Eldon Steele charging him with public drunkenness and disorderly conduct.

2. The accused appeared before the said John H. Yates, justice of the peace, and pleaded guilty to the charge contained in the warrant. The court thereupon adjudged that the defendant be imprisoned in the county jail for a term of thirty days and assigned to work upon the public roads.

3. Thereafter, on 28 April, while serving his sentence, the defendant filed petition for writ of habeas corpus before the judge holding the Superior Court of Bladen County, alleging that his imprisonment under commitment from a justice of the peace was violative of his constitutional rights and void.

4. At the hearing on return to the writ of habeas corpus, it was adjudged that "the proceedings and. judgment in the trial before John H. Yates, justice of the peace, of Eldon Steele, were unconstitutional andvoid". Whereupon it was ordered that the prisoner be discharged from custody.

S. On 3 June following, the Attorney General, acting for and on behalf of the State, applied for a writ of certiorari, alleging error in the judgment ordering the prisoner released from custody. The application was allowed and the writ accordingly issued.

Harry McMullan, Atty. Gen, and T. W. Bruton and George B. Patton, Asst. Attys. Gen, for the State, petitioner.

Albion Dunn, of Greenville, for N. C. Association of Magistrates, amicus curiae.

Thomas L. Parsons, Jr., and George S. Steele, Jr., both of Rockingham, for Eldon Steele, respondent.

James MacClamroch, of Greensboro, for N. C. Bar Association, amicus curiae.

STACY, Chief Justice.

We have here a challenge to a part of the judicial system of the State. As no appeal lies from a judgment rendered on return to writ of habeas corpus, except in cases involving the care and custody of children, a review is permissible by certiorari, which has been issued in the instant case. In re Holley, 154 N.C. 163, 69 S.E. 872; In re Croom, 175 N.C. 455, 95 S.E. 903; State v. Phillips, 185 N.C. 614, 115 S. E. 893; In re Veasey, 196 N.C. 662, 146 S. E. 599; In re Adams, 218 N.C. 379, 11 S.E. 2d 163.

The order releasing the prisoner from custody is grounded on the assumption that no justice of peace, under the fee system obtaining in this jurisdiction and particularly in Richmond County, can meet the constitutional requirement of "due process" and render a valid judgment against the accused in a criminal proceeding. Specifically the holding is that the justice of the peace who heard the case was disqualified because of his pecuniary interest in convicting the defendant and for this reason his judgment is void. The thought prevailed at the hearing on return to the writ of habeas corpus that the ruling is impelled by the decision in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243. We take a different view of the matter.

In the first place, it will be noted that the challenge is to the fee system set up by statute and not to the office of justice of the peace, which, with us, is constitutional. Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57. The "courts of justices of the peace" are mentioned as among the repositories of the State's judicial power. "The judicial power of the State shall be vested in * * *, courts of justices of the peace, * * * ". Const. Art. IV, Sec. 2. The office, then, as such, is not under attack. It is vouchsafed in the Constitution. Jones v. Standard Oil Co, 202 N.C. 328, 162 S.E. 741.

It is provided by Chap. 342, Public Local Laws 1933, as amended by Chap. 358, Public Local Laws 1935, that "upon conviction of any person in a Justice of the Peace or Mayor's Court in Richmond County there shall be taxed against the defendant * * * a fee of two dollars ($2.00) for the use and benefit of the trial justice. * * * If the defendant is sentenced to jail to be assigned to the roads * * * the County shall pay one-half the fees hereinbefore set forth * * * Provided, that the county shall not be liable for or pay to any Justice of the Peace * * * a sum in excess of five dollars per month". So that in the instant case the fee of the justice of the peace amounted to not more than $1. Had the defendant paid the costs, it would have been $2. The trial justice is entitled to no compensation in case of an acquittal.

The respondent's application to the judge of the Superior Court for writ of habeas corpus is bottomed on the decision in the Tumey case. There, the defendant was tried by the mayor of the village of North College Hill, Ohio, on a warrant charging him with possessing intoxicating liquor in violation of the Ohio statute. At the threshold of the case, the defendant moved for a dismissal because of the disqualification of the mayor to try him under the due-process clause of the Fourteenth Amendment. The mayor denied the motion, proceeded to trial, convicted the defendant, fined him $100, and ordered that he be imprisoned until the fine and costs were paid. The mayor's fee in case of conviction was $12; and in addition thereto the village over which he presided, then in need of finances, was to receive one half of the fine imposed. The mayor and the village both profited in substantial amounts from the running of "the liquor court", as it was popularly called. In case of acquittal, the mayor received no compensation. Under the Ohio law, the trial of the defendant was before the mayor without a jury, without opportunity for retrial and with a review con-fined to questions of law. Out of these circumstances came the pronouncement: "Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law". [273 U.S. 510, 47 S.Ct. 444, 71 L. Ed. 749, 50 A.L.R. 1243.] To like effect is the decision in State v....