City of Florence v. Berry

• Decision Date: 23 July 1901
• Citation: 39 S.E. 389,61 S.C. 237
• Parties: CITY OF FLORENCE v. BERRY. SAME v. ROLLINS.
• Court: South Carolina Supreme Court

39 S.E. 389

61 S.C. 237

CITY OF FLORENCE v. BERRY.

SAME v. ROLLINS.

Supreme Court of South Carolina

July 23, 1901

Appeal from common pleas circuit court of Florence county; Gary Judge.

Indictment by city of Florence against W. H. Berry and R. J. Rollins, in separate cases, for violating city ordinances. From affirmance in circuit court of judgment against defendants in mayor's court, defendants appeal on the following exceptions: "(1) Because the circuit judge erred in holding that the mayor had jurisdiction to try defendant, although it appeared upon the face of the proceedings that the prosecution against defendant was not based upon an oath or affidavit, as required by law. (2) Because the circuit judge erred in holding that while the city clerk was without authority to administer an oath, and that although the prosecution in this case was based upon a statement purporting to have been sworn to before said clerk yet that, by appearing, the defendant waived the jurisdictional defect, and that the same was cured by verdict or sentence. (3) Because the circuit judge erred in holding that defendant, having voluntarily appeared before the mayor and having gone to trial without making objection to the warrant or the affirmation on which it was based, was then in the position after verdict as though he had voluntarily submitted himself to the jurisdiction of the court, and that in such case it would not be necessary for such clerk to be authorized to take the affirmation. (4) Because, in the case of the city of Florence against W. H. Berry, there being no proof as to the sale of whisky to James N. Purvis, his honor erred in not holding that there was no venue proven as to the sale of whisky to J. S. Dale, the sale to J. S. Dale being the only count in the warrant upon which there was any proof as to the sale of whisky. (5) Because, in the case of the city of Florence against W.H. Berry, while the defendant was charged with selling to J. S. Dale on the 15th day of July 1900, one-half pint of rye whisky, of the value of twenty-five cents, the proof was that the defendant sold to Dale two drinks of whisky for fifteen cents, and his honor erred in not holding that there was a total variance between the charge and proof, thereby placing the defendant in the position to be charged with one offense and convicted by proof of a different offense, and thereby placing defendant in a position to be indicted for the same offense as proven, in which indictment he could not plead former conviction. (6) Because, in the case of the city of Florence against R. J. Rollins, while the defendant was charged with selling to Zehee one-half pint of corn whisky on February 6, 1900, and one-half pint of rye whisky on February 11, 1900, the proof was that the defendant sold to Zehee one-half pint of rye whisky on February 6, 1900, and one-half pint of corn whisky on February 11, 1900, thereby placing the defendant in the position to be charged with one offense and convicted by proof of a different offense, and thereby placing defendant in a position to be indicted for the same offense as proven, in which indictment he could not plead former conviction." Affirmed.

Wilcox & Wilcox, for appellants.

W. H. Wells, for respondent.

McIVER C.J.

These two cases, being both prosecutions for violations of an ordinance of the city of Florence, forbidding the sale of spirituous liquors within the corporate limits of said city, were heard and will be considered together, as the most of the questions presented by the appeals are common to both. We propose to consider these questions in the order in which they are considered in the argument of the counsel for appellants.

Exceptions 1, 2, and 3 raise a jurisdictional point, and may be considered together. The point made is that the affidavits upon which these prosecutions were based purport to have been sworn to before the city clerk of Florence, an officer who it is claimed has no authority to administer an oath. Assuming without deciding, that the city clerk has not been invested with power to administer an oath, we think that the jurisdictional point is not well taken. It must be remembered that jurisdiction is of two separate and distinct kinds: (1) Jurisdiction of the subject, or, as it is usually phrased, of the "subject-matter"; (2) jurisdiction of the person,--and very different rules apply where the question is as to the jurisdiction of the subject from those which are applicable where the question is as to the jurisdiction of the person. In the former the question of jurisdiction cannot be waived by any act or admission of the parties, for the very obvious reason that the parties have no power to invest any tribunal with jurisdiction of a subject over which the law has not conferred jurisdiction upon such tribunal. Hence the common expression, "Consent cannot confer jurisdiction." But in the latter the rule is very different. The party may, by consent, confer jurisdiction over his person, or may waive the right to raise the question, whether the proper steps prescribed by law for obtaining such jurisdiction have been taken, as is illustrated by the familiar instance of a party who, though not served with a summons, appears and answers, and is thereby precluded from afterwards raising the question as to whether the court had acquired jurisdiction of his person. See Martin v. Fowler, 51 S. C., at...