Hathaway v. State

• Decision Date: 08 April 1940
• Docket Number: 34054
• Court: Mississippi Supreme Court
• Parties: HATHAWAY v. STATE

195 So. 323

188 Miss. 403

HATHAWAY v. STATE

No. 34054

Supreme Court of Mississippi, Division A

April 8, 1940

Suggestion Of Error Overruled April 22, 1940.

APPEAL from the circuit court of Monroe county HON. CLAUDE F CLAYTON, Judge.

Ike Hathaway was convicted of possessing intoxicating liquor, and he appeals. Affirmed.

Affirmed.

McFarland & Holmes, of Aberdeen, for appellant.

Article 4, Constitution of the United States, Amendments, page 14 Mississippi Code of 1930 Annotated, and Section 23 Constitution of the State of Mississippi, page 49, Code of 1930 Annotated, are almost identical in wording and are to the effect that the people shall be secure in their persons, houses and possessions from unreasonable seizure and search.

The search warrant provided for and directed to be issued therein (Sec. 1975, Miss. Code of 1930 Annotated), if issued by a justice of the peace, must be issued by "a justice of the peace of the county" in which the property ordered to be searched is located.

If C. J. Pennal had not resided two years in Monroe County in the district from which he was selected mayor, he was not eligible under Section 171 of the Constitution of the State of Mississippi, supra, to hold the office of justice of the peace, and had no jurisdiction over any part of Monroe County except as mayor over that part of Monroe County located within the corporate limits of the Village of Nettleton and, therefore, the search warrant which issued in this case was absolutely void, and the evidence procured as a result of a search made under said search warrant was incompetent, as it was unlawfully procured.

This court cannot give to the citizens of this state the protection provided for by the Constitution of the State of Mississippi and of the United States against unreasonable search and seizure of their premises by holding that the search warrant in this case is valid.

Sec. 1975, Miss. Code of 1930 Annotated.

Our democratic form of government would be trampled under foot if citizens of other counties adjacent to the counties in which we live, who happen to be mayors of towns located in one or more counties and who have judicial authority, are to be permitted, against the provisions of the constitution, to exercise judicial functions outside of the territory included within the corporate limits of the towns from which they have been elected to serve as mayor.

C. J. Pennal, who was elected mayor of the Village of Nettleton, partly in Lee County and partly in Monroe County, and who resides, and for many years has resided in Lee County, may have been, because of his residence in Lee County for two years or more prior to his selection as mayor of said village, entirely acceptable as mayor and as ex-officio justice of the peace to the citizens of Lee County, where he resided, and to the citizens of the Village of Nettleton, where he likewise resided, but the Constitution provides that he could not possibly be an ex-officio justice of the peace of Monroe County. In fact, the Constitution says that he was not even eligible to hold the office of ex-officio justice of the peace in Monroe County because he had not resided in Monroe County, or in the 5th district thereof, the district in which Nettleton is situated, for two years next preceding his selection.

Our understanding of the law has always been that the constitutional provisions of the laws of search and seizure are to be strictly construed and followed precisely when the persons, houses and possessions of our citizens are to be searched.

The learned circuit judge, in sustaining the demurrer of the district attorney to our special plea, referred to Section 2536, Mississippi Code of 1930, which is the statute authorizing the selection of a police justice in cities having less than 7, 000 inhabitants, but the court will note that this selection is made by the mayor and board of aldermen electing a police justice, and there is nothing in the record here to show that C. J. Pennal was so elected, and, furthermore, the Village of Nettleton is not a city. This section further provides that in all towns, villages and other municipalities where a police justice is not elected the mayor or mayor pro tem shall be the police justice; and in either case the police justice shall be an ex-officio justice of the peace in and for the corporate limits. If this makes C. J. Pennal ex officio justice of the peace in Monroe County, Mississippi, it conflicts with Section 171 of the Constitution and is unconstitutional.

We have been unable to find any provision of law whereby any municipality, such as the Village of Nettleton, Mississippi, for the purpose of construing these statutes, must be considered as a district for the selection of a justice of the peace; and if there is any such provision, it would clearly be unconstitutional as violative of Section 171 of the Constitution.

Section 171 of the constitution clearly provides that the Legislature shall have authority only to fix the number of justices of the peace in each supervisor's district in the county, and that they cannot provide for a justice of the peace whose district includes a part of another supervisor's district or a part of another county, as the district of the justice of the peace must be wholly within one supervisor's district and wholly in one county.

If the evidence was procured unlawfully by the officers, it, of course, was inadmissible in evidence.

W. D. Conn, Jr., Assistant Attorney-General, for appellee.

It was contended at the trial below, as well as here, that the mayor of Nettleton, because of his citizenship in Lee County, had no authority to issue a search warrant to be executed in Monroe County, outside of the...