Ex parte Lewis
| Citation | 288 P. 354,47 Okla.Crim. 72 |
| Decision Date | 08 April 1930 |
| Docket Number | A-6757. |
| Parties | Ex parte LEWIS. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In order to disqualify a justice of the peace under the due process provisions of the Constitution of Oklahoma, the interest of such justice of the peace must be a direct personal, substantial, pecuniary interest in the subject-matter of the litigation, and not merely indirect incidental, contingent, or possible.
Original application of Julius Lewis for a writ of habeas corpus.
Writ denied.
Amos T Hall, of Tulsa, for petitioner.
The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
The petitioner alleges that on the 12th day of September, 1927, a complaint, duly verified and indorsed by the county attorney of Tulsa county charging the petitioner with being upon a certain public highway in said county and state in a drunken and intoxicated condition, was filed in the justice court of W. M. Wilson, a duly elected, qualified, and acting justice of the peace of District No. 3 in said county; that on said day the petitioner was tried and convicted of the offense charged in said complaint, and there was assessed against him a fine of $10 and a further sum of $11.80 as costs in said cause; that, defaulting in the payment of same, the petitioner was committed to the county jail of Tulsa county until the fine and costs were paid, where petitioner was being detained at the time of the filing of his petition.
The petitioner further alleges that said restraint and imprisonment is illegal and unauthorized in that the justice of the peace, before whom petitioner was tried and by whom petitioner was convicted, had a pecuniary interest in the conviction of the petitioner by reason of the fact that said justice depended upon a conviction of the petitioner in said cause for his fee; that by reason of said fact the petitioner was denied a fair and impartial trial before a fair and impartial judge; that by reason of the pecuniary interest of the justice of the peace in the conviction of the petitioner he is being and has been denied his constitutional rights, for the reason that the same is in violation of sections 6 and 7 of the Bill of Rights (art. 2) of the Constitution of Oklahoma; and for the further reason that petitioner's conviction before the said justice of the peace is void and illegal, in that the same is repugnant to the Fourteenth Amendment of the Constitution of the United States.
An order was made by this court for the enlargement of petitioner on bail pending a hearing on his petition. The question presented by his application is "whether or not the justice of the peace who tried and convicted the petitioner had such an interest as prevented or hindered said officer from giving the petitioner a fair and impartial trial, and that as a result of said illegal conviction he is being restrained of his liberty without due process of law."
Sections 6 and 7, article 2, of the Constitution of Oklahoma provides:
The statute fixing the fees in criminal cases for justices of the peace and constables is section 6432, C. O. S. 1921.
Section 6435, C. O. S. 1921, is as follows: "In all cases where the fees prescribed in criminal causes for justices of the peace and constables are not paid by the defendant or complaining witness, the fees allowed by law shall be paid by the county: Provided, that no such fees shall be allowed by the board of county commissioners until the justice of the peace or constable shall have filed an itemized statement, verified, that said fees have not and cannot be collected from any other source; Provided, further, that the total amount of fees paid by the county to any justice of the peace or constable, shall not exceed one hundred ($100.00) dollars per quarter. * * *"
Section 2993, C. O. S. 1921, provides for the filing of misdemeanor cases before justice of the peace, and is as follows:
The office of justice of the peace being created and the jurisdiction thereof fixed by section 18, art. 7, Constitution of Oklahoma, there arises no question of the constitutionality or legality of the court, but only the question of whether the fact that the justice of the peace may receive fees from the defendant upon his conviction creates such an interest in the action as disqualifies him under sections 6 and 7, art. 2, of the Bill of Rights of the Constitution, and the Fourteenth Amendment.
The petitioner, to support his contention, relies upon the case of Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 441, 71 L.Ed. 754, 50 A. L. R. 1243, wherein the court, speaking through Mr. Chief Justice Taft, lays down the following rule: "It certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case."
This rule, as laid down by the Supreme Court of the United States, follows the rule as stated in 33 C.J. 994, and the authorities therein cited. However the facts in Tumey v. Ohio, supra, are widely different from the facts in the case at bar, and the law applicable to that case is not in point in the instant case and can be easily distinguished. In the Tumey Case it appears that the Mayor of the village of North College Hill was the judge who heard and passed sentence upon defendants in misdemeanor cases in his jurisdiction. It further appears that he received a fee of $12 in this case, contingent upon the conviction of the defendant, and that he had no other source from which such fees might be received. In the case at bar we find by reference to section 6435, supra, that the justice of the peace has three sources from which he may receive his fee, namely, the defendant, the complaining witness (where the complaint is not approved by the county attorney), and from the county itself, by presenting an itemized statement to the board of commissioners.
Again, in the Tumey Case the mayor received a certain per cent. of the fine levied by him as his fee in the case, while in the case at bar the justice of the peace does not participate in the fine levied but only receives fees in accordance with the various ministerial acts performed by him in the case. It is a well-established rule of law that the interest of the justice of the peace must be in the subject-matter of the litigation. Langston v. Hazelhurst, 9 Ga.App. 449, 71 S.E. 592; Pace v. Hazlehurst, 9 Ga.App. 203, 70 S.E. 967; Tari v. State, 117 Ohio St. 481, 159 N.E. 599, 57 A. L. R. 284; Osborne v. Board of Improvement, 94 Ark. 563, 128 S.W. 357; Lindsay-Strathmore v. Superior Ct., 182 Cal. 315, 187 P. 1056; State v. Call, 41 Fla. 442, 26 So. 1014, 79 Am. St. Rep. 189; Laplant v. Marshalltown, 134 Iowa, 261, 111 N.W. 816; Tootle v. Berkley, 60 Kan. 446, 56 P. 755; McFaddin v. Preston, 54 Tex. 403; Cheuvront v. Horner, 62 W.Va. 476, 59 S.E. 964.
Referring to the Tumey Case it appears that the trial was had without a jury and that the defendant was not entitled to a jury to determine the facts in his case, whereas in all criminal cases before a justice of the peace in this state the defendant has a right to trial by jury if he so requests. Section 19, art. 2, Bill of Rights, Constitution of...
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