The Mayor v. Hussey

• Decision Date: 31 January 1857
• Docket Number: No. 12.,12.
• Citation: 21 Ga. 80
• Parties: The Mayor and AldErmEn of the City of Savannah, and the Hamlets thereof, plaintiff in error. vs. Christopher HussEy, defendant in error.
• Court: Georgia Supreme Court

21 Ga. 80

The Mayor and AldErmEn of the City of Savannah, and the Hamlets thereof, plaintiff in error. vs. Christopher HussEy, defendant in error.

No. 12.

Supreme Court of the State of Georgia

JANUARY TERM, 1857.

Certiorari, from Chatham Superior Court, before the Honorable W. B. Flemming, presiding Judge of said Court. At January Term, 1856.

The defendant, Christopher Hussey, was convicted by the Mayor and Alderman's Court of the city of Savannah, of the offence of harboring and enticing seamen, in violation of an ordinance of said city. He excepted to said conviction, and by certiorari, brought up the proceedings and judgment ofsaid Court, before the Superior Court of Chatham County. The case was heard by Judge Fleming, who, after argument, delivered the following decision, declaring the conviction and judgment null and void, and ordering the same to be sel aside.

Christopher Hussey,

vs.

The Mayor and Aldermen of the City of Savannah.

Certiorari.

The Act of 1849, enacts that the Police Court of the city of Savannah, be established and declared a Court of Record. That said Court shall have cognizance in the first instance of all offences against the laws of the State, touching said city, with power to inflict the punishments by fine and imprisonment prescribed by the existing laws and ordinances, or by those hereafter to be enacted or ordained, &c.

By the Constitution of the State of Georgia, "the Superior Court shall have exclusive jurisdiction in all criminal cases, " with certain exceptions—among these exceptions is the following: "And except in all minor offences committed by free white persons and which do not subject the offender or offenders to loss of life, limb or member, or to confinement in the penitentiary—in all such cases Corporation Courts, such as now exist, or may hereafter be constituted in any incorporated city, being a seaport town, and a port of entry, may be vested with jurisdiction under such rules and regulations as the Legislature may hereafter by law direct, which shall be tried in the county where the crime was committed."

Savannah being an incorporated city, a seaport town, and port of entry, the Legislature may, under the Constitution, give jurisdiction to the Corporation Courts, in the city of Savannah, of all minor offences, &c. It was argued that the Police Court, of the city of Savannah, is not a Corporation Court within the meaning of the Constitution. The Constitution says Corporation Courts—if the Police Court of thecity of Savannah be a Corporation Court, and I can not doubt it, then it is embraced in the expression, "Corporation Courts." There is nothing in the Constitution to show that Corporation Courts of a particular character were intended. The fact that a Court is a Corporation Court, that it is in a city incorporated, that city being a seaport town, and port of entry, makes it a Court upon which the Legislature may confer jurisdiction of all minor offences, &c. But now the question arises, what jurisdiction has been conferred upon the Police Court of Savannah, by the Act of 1849? The Act says: "That said Court shall have cognizance in the first instance of all offences against the laws of the State, touching said city, &c." Harboring seamen is an offence against the laws of the State, touching said city. The Act of 1843, sec. 3d, enacts: "If any person or persons shall harbor, secrete, entertain, lodge or keep, or shall directly or indirectly, suffer to be harbored, secreted, entertained, lodged or kept, in or about his house or premises, any articled seaman or mariner, or apprentice, knowing the said seaman or mariner, or apprentice to have deserted from his ship or vessel, such person or persons, shall, on conviction, be fined in a sum of not more than five hundred dollars, or imprisoned, at the discretion of the Court." Cobb, 32.

The offence against this law of the State, is the offence of which jurisdiction is given by the Act of 1849, to the Police Court of the city of Savannah. Now was the defendant tried for a violation of this Act? No, he was not; the record shows that he was not. The Mayor in his return to the certiorari, says "that on the twenty-fifth day of August, 1855, Christopher C. Hussey was arraigned before the Mayor of the city of Savannah, and the Hamlets thereof, for the violation of our ordinance, &c." That ordinance is in conflict with the State law, on the same subject. By the State law, the offender shall, on conviction, be fined in a sum not exceeding five hundred dollars, nor less than fifty dollars. Now what authority have the Mayor and Aldermen, to alter, amend, repeal, or 5n any way change a statute of the State of Georgia? Jurisdiction is given to try Hussey for an offence against the State law—this is surely no authority to the corporation to change the State law. Ordinances of the city conflicting with the Constitution, or with the Statutes of the State, are invalid. The law of the State is the law of the corporation on this subject, and they can not make another law for themselves. If the act for which Hussey was tried by the Mayor, is prohibited by the statute of 1843, thenthe ordinance is void, and every proceeding under it is illegal. The Act of 1843, does prohibit and punish the offence of harboring articled seamen. This being the general law of the State, all persons charged with this offence must be tried under it. No corporation can substitute an ordinance of its own in the place of the statute. Inasmuch, then, as Hussey was tried for a violation of the ordinance, and not for an offence against the statute, I think there was error.

But the more difficult question still remains: Can the Police Court of the city of Savannah try Hussey under the State law? Much of the argument before me, has been on that provision of our Constitution that "jury trial, as heretofore used in this State, shall remain inviolate." The question has been made whether at and before the adoption of the Constitution, jury trial for this offence had been used at all, and if not, then that the expression "heretofore used, " would not embrace this case. The question I think, may be decided without an appeal to the Constitution. What are the rights of the defendant under the laws of the land? In 1843, theLegislature passed an Act punishing this offence. Under this Act, the accused is to be put upon his trial precisely as he would be put on trial for any other offence against the laws of the State. In other words, in 1843 the accused had the right for this offence to be tried by a jury. When did they lose their right? I don't make the question (for it is not necessary) whether the Legislature could take this right from him. The Legislature has not, in my judgment, attempted to do so. The mere fact of giving jurisdiction to a particular Court of an offence, does not take from the accused his rights under the law creating and defining his offence. If in 1843 the accused had the right to be tried by a jury, he has that right still, for the Act of 1843 has not been changed. It is now precisely as it was then. Jurisdiction to try the accused for violations of this statute is a jurisdiction to try him under the statute which he has violated. Under the statute the accused is entitled to a jury, but the Police Court of Savannah has no jury. The condition of things, then, is this: The Legislature has conferred jurisdiction on the Police Court of Savannah, but the Legislature has failed to make the provisions necessary to enable the Court to exercise the jurisdiction conferred. When the law was first passed, conferring upon the Judge of the city Court the power\' to hold\' special Courts for the trial of particular cases, no provision was made for a jury. The law in consequence remained a dead letter, until a subsequent Act was passed, providing for a jury. Jurisdiction to try, is jurisdiction to try by jury, if at the time the jurisdiction is created the accused is entitled to a jury. If the Act giving jurisdiction to the Police Court had in terms taken away the right of trial by jury, the question would have been as to the right of the Legislature to take it away. But that question is not before me, the Legislature not having done anything of the kind.

I am satisfied with this reasoning, because of the singular state of things that would exist if I am wrong. A man harboring an articled seaman in Savannah, may be tried by the Mayor without a jury. A man harboring an articled seaman in any county of the interior could not be tried, except by jury. They are both tried for the same offence; under the Act of 1843, the one has the advantage of being tried by a jury of his peers, the other is denied that privilege. Is the legislation of Georgia thus partial in its operation? But even in Savannah, he is entitled to a jury or not, according to circumstances over which he has neither choice nor control.

If he is brought up before the Police Court of the city of Savannah, he is tried by the Mayor; if he is brought up before the city Court, or before the Superior Court, he is tried by a jury. And whether tried by the one Court or the other, he is tried under the Act of 1843. If under that Act he is entitled to a jury before any Court, he is entitled to a jury before every Court having jurisdiction of the offence—when jurisdiction is conferred, it is conferred in subordination to the rights of the accused, under the law for the violation of which he is put upon trial.

It is, therefore, ordered that the judgment below be, and the same is hereby, set aside and declared to be utterly null and void.

15th May, 1856.

W. B. FLEMING,

Judge E. D. Georgia.

And now come the said The Mayor and Aldermen by Ward and Owens, and Lloyd and Owens, their Attorneys, within thirty days from the day when said decision was made, and except to the said decision and judgment of the Judge of the Superior Court upon the following grounds:

1st. That the said decision is contrary to law.

2d. Because his...