Gober v. Phillips

• Citation: 151 Miss. 255,117 So. 600
• Decision Date: 11 June 1928
• Docket Number: 27227
• Court: Mississippi Supreme Court
• Parties: GOBER et al. v. PHILLIPS. [*]

117 So. 600

151 Miss. 255

GOBER et al. v. PHILLIPS. ^[*]

No. 27227

Supreme Court of Mississippi

June 11, 1928

Division A

Suggestion of Error Overruled July 18, 1928.

APPEAL from circuit court of Hinds county, First District, HON. W H. POTTER, Judge.

Action on note instituted in a court of a police justice and ex officio justice of the peace in the city of Jackson by Logan Phillips against Oscar P. Gober, and others. Judgment was rendered for plaintiff, and on appeal to the city court plaintiff recovered judgment, and on appeal to the circuit court the judgment was affirmed, and defendants appeal. Affirmed.

Judgment affirmed.

S. C. Broom, for appellants.

It will be observed that the Constitution divided the county into five justice of the peace districts and fixed and prescribed the territorial limitations of the same. See section 170 state Constitution. Section 171 makes it more certain as to territorial limitations and provides that one is ineligible unless he has resided in the district two years before his election. He shall hold his office four years. You will observe that the Constitution makes the county a five-wheeled vehicle--not six or more; and to emphasize the fact that it means just what it says, section 90 of the Constitution places a limitation upon the legislature to change it. Paragraph (t) says there is one thing you can't do and that is to create new districts for the election of justices of the peace and constable. Section 170 provides for the election of supervisors in the five districts; their territorial limitations are fixed; would you say that we might have one at large for the city of Jackson embracing a part of two or more of the five districts?

We do not question the right, the constitutional rights, of the legislature to create the inferior court of police justice nor their right to make him an ex officio justice of the peace in and for his municipality, provided that municipality is all within one and the same justice of the peace or supervisor's district. We know as a matter of common knowledge that when the law was enacted creating the inferior court of police justice and ex officio, it was never contemplated, the mind of the legislature was not directed to the situation, where a municipality was partly in two separate districts.

It is not necessary to determine in this case whether or not he can be a police justice in a municipality lying in two different justice of the peace districts. We concede that he can and it matters not which district in the municipality he resides in, because that is another type of inferior court and its territorial limitations are not fixed by the Constitution. We concede the right to create the county court, but if the legislature had said, there is hereby created a justice of the peace at large whose territorial jurisdiction shall be for the entire county, then the act would have been unconstitutional and obnoxious to paragraph (t) of section 90 of the state Constitution which provides against special law, etc.; 35 C. J. 490-91; 12 C. J. 816; State v. Locker, 226 Mo. 384, 181 S.W. 1001; In re Thompson, 85 N.J.Eq. 221; State v. Noble, 118 Ind. 350.

It must be conceded that unless Penix is a lawful police justice he can't be an ex officio justice of the peace. The admitted facts are that he has never been elected, commissioned or bonded; that he does not hold office for the term of mayor and yet the statute provides that he shall be elected. But we maintain that if he is a police justice in and for the city of Jackson he is nevertheless without jurisdiction as an ex officio justice of the peace to try the appellants herein because of the facts set forth above.

This precise question has never been settled by our supreme court. The case of Bell v. McKinney, 63 Miss. 187, presented this question: The town of Chesterville is partly in Lee and partly in Pontotoc counties. The mayor lived in Pontotoc. McKinney was alleged to have committed a trespass on lands in Lee county and outside the municipality. He was convicted and sent to jail and this was a suit for damages for false imprisonment. It will be observed that all parties admitted in their brief that the mayor would have had jurisdiction. As a justice of the peace, I seriously doubt it. At any rate it was not necessary to decide this question in that case, therefore this case is not in point and has no bearing on the case now under consideration. Poplarville Saw Mill Company v. Marx & Sons, 117 Miss. 10; Heggie v. Stone, 70 Miss. 39; Rich v. McLaurin, 83 Miss. 95.

Powell, Harper & Jiggitts, amici curiae, for appellee.

The first point raised by appellants is that J. H. Penix had no jurisdiction in this case because he did not hold his court in the same district in which he lived. Appellants state that J. H. Penix holds his court in district five but lives in district one. As authority for their contention that Penix must live in the same district in which he holds his court they cite sections 170 and 171 of the Mississippi Constitution. The mistake which appellants make is apparent. They place the court of police justice under section 171 of the Constitution of Mississippi. The true status of the police court of the city of Jackson, Mississippi, is that it is an inferior court established under and by authority of section 172 of the Constitution of Mississippi, 1890. Hughes v. State of Mississippi, 79 Miss. 7; State ex rel. Knox v. Speakes, 144 Miss. 125; Bell v. McKinney, 63 Miss. 187; Poplarville Saw Mill Company v. A. Marks & Son, 117 Miss. 10; Faulkner v. State, 134 Miss. 101, at 108; Rich v. McLaurin, 83 Miss. 95.

Appellants seem to lose sight of the fact that J. H. Penix is not a justice of the peace, but is police judge with the powers of a justice of the peace.

Title to an office cannot be questioned by plea in abatement. See Pringle v. State, 108 Miss. 802. The only way in which the title to the office now held by J. H. Penix can be raised is by quo warranto. This is specifically held in the case of Wilson v. State, 113 Miss. 748; Town of Sumner v. Henderson, 116 Miss. 64; Mayor & Board of Aldermen of the City of Jackson v. State, 102 Miss. 663, 59 So. 873; Hem. Code 1917, sec. 5926.

That the city council had a right in view of the above authorities, to create a police court and a police justice and to give to the police justice and to the court certain broad powers cannot be questioned. Sec. 6059 of Hem. Code 1917.

Hendrix & Burkett, for appellee.

The main contention of appellants is that J. H. Penix, police justice and ex officio justice of the peace for the city of Jackson, has no jurisdiction to try this case against appellants because the city of Jackson, the corporate limits of which comprises the district of the court over which J. H. Penix presides, is divided by a supervisor's district line, and that the police justice and ex officio justice of the peace lives in a different supervisor's district from the one in which appellants live, and because J. H. Penix happens to live in a different district from the one in which he holds court, although all the parties, both appellants and the judge of the court, live within the corporate limits, and are residents of the city of Jackson, and because of these reasons, this court has no jurisdiction of this case.

Section 172 of said Mississippi Constitution provides that: "the legislature shall from time to time establish such inferior courts as may be necessary, and abolish same whenever deemed expedient." Under this section of the Constitution, the legislature established the court of police justice. See Bell v. McKinney, 63 Miss. 187; Riley v. James, 73 Miss. 1, 18 So. 930.

The law which creates the court of police justice and ex officio justice of the peace is section 5926, Hemingway's Code, which after stating his qualifications and powers, adds: "He shall hold his courts in the Municipal Building. That he may sit as committing court in all violations of the law, within the county outside of the Municipal corporation, and of all felonies within the corporation. "He shall be ex officio justice of the peace in all cases arising within the corporate limits of the municipality, and he shall discharge his duties as such." "He shall keep a separate docket as justice of the peace." Thus, we see that his powers and his jurisdictions are not only sharply defined, but made mandatory. See Jackson v. State, 102 Miss. 663, 59 So. 873.

Counsel for appellants urges that J. H. Penix, has never been elected by popular vote, that he is under no bond, nor does he hold any commission from the Secretary of the state, or other state authorities. The question as to whether or not the city of Jackson has more than seven thousand inhabitants does not enter into this case, since the city of Jackson has been operating under the commission form of government since 1912, and, therefore, the section of our Code, which provides for the election of police justice by the people of the municipality in a city having more than seven thousand inhabitants, is not now in effect in Jackson, Mississippi, the police justice having derived his powers and duties from the commission of the city of Jackson, those same powers having been placed in the commission by the Commission Government Act of 1912. We contend that there is no merit in this contention of the appellants.

Counsel for appellants make a serious mistake of assuming that the court of police justice and ex officio justice of the peace was created under the provision of section 171 of the Constitution, instead of section 172. Hughes v. State, 79 Miss. 77, 29 So. 786.

The comments of counsel for appellants, relative to section 90 of the state Constitution, which provides that the legislature shall not pass...