City of Columbia v. Smith

• Decision Date: 11 September 1916
• Docket Number: 9502.
• Parties: CITY OF COLUMBIA v. SMITH.
• Court: South Carolina Supreme Court

89 S.E. 1028

105 S.C. 348

CITY OF COLUMBIA v. SMITH.

No. 9502.

Supreme Court of South Carolina

September 11, 1916

Appeal from General Sessions Circuit Court of Richland County Mendel L. Smith, Judge.

Proceeding by the City of Columbia against Harvey Smith for a violation of a traffic ordinance. From a judgment reversing a judgment of conviction in the recorder's court and remanding for trial, the City of Columbia appeals. Affirmed.

The order of the circuit judge was as follows:

This cause comes before me on an appeal from the recorder's court of the city of Columbia, wherein the defendant was convicted of the violation of a traffic ordinance. On his trial he demanded a jury, whereupon a jury was drawn in pursuance of the provisions of section 1395 of the Civil Code 1912, which relates to the method of summoning and impaneling juries in the court of the magistrate. The defendant objected to this manner of drawing the jury, and contended that the same should be drawn under the provisions of an act passed at the 1916 session of the General Assembly entitled "An act to provide a method of preparing and drawing juries in the recorder's court for the city of Columbia." The defendant's objection was overruled and the cause ordered to trial. The recorder makes return that the act in question is unconstitutional in that it is violative of article 3, § 34, subds. 7 and 9, and of article 8, § 1, of the Constitution, which prohibit, respectively special legislation on certain subjects, and provide, for the organization and classification of municipal corporations.

The recorder's court of the city of Columbia, as now constituted, was established by an act entitled: "An act to establish municipal courts, to define the powers and jurisdiction of such courts, and to provide for the conduct of the business thereof in cities over twenty thousand and not exceeding fifty thousand inhabitants." 23 St. at Large, p. 1048. This act, so far as pertinent to the present inquiry, is as follows:

"Section 1. * * * A municipal court is hereby established for every city in this state having a population of more than twenty thousand and not exceeding fifty thousand inhabitants.

Sec. 2. That the said municipal court shall have jurisdiction to try and determine all cases arising under the ordinances of the city in which said court is established, and generally shall have all such judicial powers and duties as are now conferred upon the mayor of such city, either by its charter or by the laws of the state of South Carolina. The said municipal court shall also have all such powers, duties and jurisdiction in criminal cases as are now conferred by law upon the magistrates appointed and commissioned for the county in which said court is established, except that said court shall not have authority of a magistrate to appoint a constable. * * *

Sec. 6. In the trial of any case in the said municipal court upon the demand for a jury, the same shall be summoned and impaneled in accordance with the law for summoning and impaneling juries in magistrates' Courts. The jury shall consist of six. Any party shall have the right to have the testimony given at such trial taken stenographically by a stenographer to be appointed by the recorder: Provided, such party shall first tender or pay the charges of such stenographer for taking and transcribing the same."

Prior to the passage of the above act the recorder's court for the city of Columbia had been established under an act appearing as sections 3001 to 3011, both inclusive, of the Civil Code 1912, section 3006 of which, relating to jury trials, is identical with section 6 of the act above quoted. Section 3001 of the Civil Code is as follows: " Municipal Courts Authorized in Cities of Not Less Than Two Thousand.--It shall be lawful for the city council of any city in this state whose population by the last census was not less than two thousand, and not more than twenty thousand, or which may now or hereafter, by actual enumeration, have a population within said limits, by ordinance duly enacted, to establish in said city a municipal court, for the trial and determination of all cases arising under the ordinance of such city."

Section 1395 provides the following method for the summoning and impaneling of juries in the magistrate's court: "In civil cases the parties may agree on a jury; but when they do not agree, and also in criminal causes, a jury shall be selected in the following manner: The sheriff, constable, or other officer appointed by the magistrate, shall write and fold up eighteen ballots, each containing the name of a respectable voter of the vicinity; he shall deliver the ballots to the magistrate, who shall put them into a box, and shake them together, and the officer shall draw out one, and the person so drawn shall be one of the jury, unless challenged by either party; and the officer shall thus proceed until he shall have drawn six who shall not have been challenged; neither party being allowed more than six challenges; but if the first twelve drawn shall be challenged, and the parties do not agree to a choice, the last six shall be the jury; and when any of the six jurors so drawn cannot be had, or are disqualified by law to act in such case, and the parties do not supply the vacancy by agreement, the officer shall proceed to prepare, in the manner before directed, ballots for three times the number thus deficient, which shall be disposed of and drawn as above provided." It will be observed that it was under this section that the jury was drawn below, and against the defendant's objection.

The act under which the defendant contended that the jury should have been drawn provides:

"Section 1. That the mayor and councilmen of the city of Columbia are hereby declared to be the jury commissioners for the recorder's court for the city of Columbia, and shall, within ten days after the approval of this act, and within the first ten days of each year thereafter, prepare and place in a box, to be known as the jury box, the name of each and every citizen within the corporate limits of said city eligible to do jury duty, and shall lock and keep said jury

box convenient for the drawing of a jury, as hereinafter specified.

Sec. 2. In all criminal cases in said recorder's court, in which a jury may be demanded by either the city or the defendant, a jury shall be selected in the following manner: The city clerk, or if [the city] clerk cannot be had, any other person appointed by the recorder of said city, shall draw out of the jury box referred to in section 1 of this act, eighteen (18) ballots, each containing the names of an eligible juror, and list the said 18 names in duplicate, delivering one copy of the same to the attorney for the city, if he be present, if not, to the chief of police, or some other officer designated by said chief, and one copy to the defendant or his attorney.

Sec. 3. The city clerk shall place the 18 ballots so drawn * * * in some box or hat and shall draw out one, and the person so drawn out shall be one of the jury, unless challenged by either party; and the city clerk shall then proceed until he shall have drawn six, who shall not have been challenged, neither party being allowed more than six challenges, but if the first twelve drawn shall be challenged and the parties do not agree to a choice, the last six shall be the jury, and when any of the six jurors so drawn cannot be had or are disqualified by law to act in such case, and the parties do not supply the vacancy by agreement, the city clerk shall proceed to draw out of said jury box ballots for three times the number thus deficient, which shall be disposed of and be drawn as above provided.

Sec. 4. That all acts and parts of acts inconsistent with this act is hereby repealed."

29 St. at Large, p. 821.

The question presented is whether the above act is special legislation, and therefore void under the provisions of the Constitution referred to at the outset and hereinafter stated.

It is well settled that the presumption is that legislative enactments are constitutional, and no such enactment ought to be declared invalid unless its unconstitutionality is made to appear beyond all reasonable doubt.

The Constitution of 1895 provides in article 3, § 34, as follows:

"The General Assembly of this state shall not enact local or special laws concerning any of the following subjects or for any of the following purposes, to wit: * * *

VII. To summon and impanel grand or petit jurors. * * *

IX. In all other cases, where a general law can be made applicable, no special law shall be enacted."

The object of section 34, art. 3, of the Constitution is stated by the Supreme Court in State v. Queen, 62 S.C. 247, 40 S.E. 553, in the following language: "These views are not inconsistent with the ruling in Carolina Grocery Co. v. Burnet, 61 S.C. 205 (39 S.E. 381, 58 L. R. A. 687), as that case did not arise under either of the first ten subdivisions of article 3, § 34; by reference to which it will be seen that the main object was to secure uniformity as to the subjects therein mentioned, and any legislation relating to those subjects which substantially mitigates against uniformity must necessarily be declared unconstitutional."

Briefly stated, the case of State v. Queen, supra, is authority for this proposition, viz.: That the listing and drawing of jurors is embraced within the meaning of the terms "summon and impanel" as used in article 3, § 34 subd. 7, of the Constitution, and, further, that any variations in the method of listing and drawing jurors in any of the counties of the state made the act therein questioned repugnant to the provision, because such variations prevented the law from being uniform throughout the state....