State ex rel. Ward v. Murrell

• Decision Date: 17 February 1936
• Citation: 90 S.W.2d 945,169 Tenn. 688
• Parties: STATE ex rel. WARD v. MURRELL, Superintendent. BURNS, Sheriff, v. STATE ex rel: BOWMAN.
• Court: Tennessee Supreme Court

90 S.W.2d 945

169 Tenn. 688

STATE ex rel. WARD v. MURRELL, Superintendent.

BURNS, Sheriff, v. STATE ex rel: BOWMAN.

Supreme Court of Tennessee.

February 17, 1936

Appeal from First Division Criminal Court, Hamilton County; Charles W. Lusk, Judge.

Appeal from Second Division Criminal Court, Hamilton County; L. D Miller, Judge.

Habeas corpus proceeding by the State, on the relation of Thomas Ward, alias Warren, against E. G. Murrell, superintendent and habeas corpus proceeding by the State, on the relation of Leonard Bowman, against Frank Burns, sheriff. From a judgment discharging relator Ward, E. G. Murrell, superintendent appeals, and from a judgment dismissing petition of relator Bowman, he appeals.

Judgment affirmed in each proceeding.

COOK Justice.

These causes were heard upon appeal as if consolidated. They involve the validity of acts applicable to Hamilton county which confer jurisdiction upon the city court and the Second division of the criminal court.

By chapter 213, Private Acts of 1935, the Legislature conferred jurisdiction upon the city court of Chattanooga over misdemeanor cases arising within the city limits defined as misdemeanors not requiring trial by jury, and the Second division of the criminal court was vested with jurisdiction over misdemeanors in the county with power to arraign without indictment and try without a jury.

After passage of the act, Thomas Ward, the relator, was arrested upon a warrant for assault with a pistol, which implies a felony. He was carried before the judge of the Second division of the criminal court and upon arraignment the trial judge ordered the issuance of a warrant for the offense of going armed and thereupon adjudged him guilty and imposed a fine of $50. Unable to pay or secure the fine and costs, the relator was committed to the workhouse.

Alleging that the act conferring such power upon the court was void and the order of imprisonment illegal, Ward sued out the writ of habeas corpus. At a hearing upon the petition and respondent's demurrer, Judge Lusk declared the act void and ordered the prisoner's discharge from custody, and the respondent appealed. Pending appeal, the Legislature enacted chapter 794, Private Acts of 1935, embodying substantially the subject-matter of chapter 213.

We concur in the conclusion of Judge Lusk that chapter 213, Private Acts of 1935, is violative of the law of the land provision of the Constitution and is for that reason void. His judgment discharging the prisoner is affirmed. Beyond this it is sufficient to say that it is apparent upon comparison of the act that chapter 213 was repealed by the enactment of chapter 794. See Bennett v. State, 2 Yerg. 472; Zickler v. Union Bank & Trust Co., 104 Tenn. 277, 57 S.W. 341. This conclusion does not rest strictly upon the doctrine of repeal by implication, but upon the fact that the new law which covers the entire subject-matter of the first act was a legislative declaration that the last act was intended as a substitute for the first.

After enactment of chapter 794 the relator Leonard Bowman was tried before a justice of the peace on a charge of public drunkenness and fined $2. In default of payment of the fine and costs, he was committed to the workhouse. He sued out the writ of habeas corpus charging that the imprisonment is illegal because the act deprived justices of the peace of jurisdiction in such cases. Upon trial before Judge Miller, the last act was declared unconstitutional. The relator's petition was dismissed, and he was remanded to custody. We concur in the conclusion of Judge Miller that chapter 794, Private Acts of 1935, is void.

Referring to the contention of counsel that both acts should be sanctioned or sustained as necessary measures to rid Hamilton county of abuses of the fee system, it may be said that such abuses as exist could be corrected by the creation of inferior courts of appropriate jurisdiction without the necessity of either the legislative or judicial departments of the state ignoring or transcending the fundamental law.

Possession of the office of justice of the peace is not attended by any vested right to expectant fees. No provision of the fundamental law clothes justices of the peace with jurisdictional power or the right to try cases. Their jurisdiction is statutory, and the justice of the peace is entitled to fees only when allowed by statute. If the official duties by which fees result should be transferred to another tribunal, so that no service is required, and none can be performed, no personal right is affected and no property right is impaired.

True, where, as held in State v. Kerby, 136 Tenn. 386, 189 S.W. 859, the justice of the peace in the exercise of lawful jurisdiction has performed a service and certified fees legally earned for payment in the manner provided by law, he could not be penalized as was attempted by the statute there involved. Such legislation is distinguishable from that which transfers jurisdiction from one legally constituted court to another, as may be done in the exercise of power to establish courts under article 6, § 1, of the Constitution. By that provision the Legislature may create courts of general, special, or limited jurisdiction within a particular county or locality. Hodge v. State, 135 Tenn. 525, 188 S.W. 203; Judges' Cases (McCulley v. State), 102 Tenn. 509, 53 S.W. 134; State ex rel. Webb v. Brown, 132 Tenn. 685, 179 S.W. 321; Moore v. State, 5 Sneed, 510.

In Moore v. State, supra, it was said that under article 6, § 1, of the Constitution the Legislature may determine how many and what kind of courts are required for the administration of justice, and what shall be the limits of their jurisdiction. Acts creating such courts are not partial or discriminatory in the sense of article 1, § 8, and article 11, § 8, of the Constitution. Those provisions refer to laws that impair rights or impose penalties, and they are not involved unless the act creating the court subjects citizens, brought before such court, as was attempted by the act before us, to a summary or unusual procedure by which they are deprived of rights that are left open to citizens elsewhere in the state. The right of trial by jury, which is denied or impaired by provisions of this act, is the subject of general legislation, and laws affecting that right must be equal and uniform throughout the State. Silberman v. Hay, 59 Ohio St. 582, 53 N.E. 258, 44 L.R.A. 264. See State v. Gerry, 68 N.H. 495, 38 A. 272, 38 L.R.A. 228.

By chapter 794, Private Acts of 1935, the city court of Chattanooga was vested with power to try for misdemeanors committed within the city limits as follows:

"If the offense be one where the penalty provided by law is in excess of Fifty Dollars, or where a fine of any amount and imprisonment is prescribed, or where a greater fine is required in the

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