State Of West Va. v. Simmons, (No. 8327)

• Citation: 117 W.Va. 326
• Decision Date: 14 April 1936
• Docket Number: (No. 8327)
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Harvey Simmons

117 W.Va. 326

State of West Virginia

v.Harvey Simmons

(No. 8327)

Supreme Court of Appeals of West Virginia.

Submitted April 7, 1936.

Decided April 14, 1936.

1. Criminal Law

The question of the alleged disqualification of a justice of the peace because of interest cannot be raised for the first time on appeal, where the disqualification, if arising under special circumstances, was known, or, if arising under general law, was presumed to be known.

2. Constitutional Law

Where a justice of the peace took cognizance of a misdemeanor case, within his general jurisdiction, after the enactment of Code, 50-17-14 and 7-5-15 and before the repeal thereof, the question of the alleged disqualification of the justice to act in such case, on the ground that the said statutes were unconstitutional because of the manner therein provided for payment of the fees of the justice, not having been raised until after judgment had been rendered by the justice and the case had passed beyond his control, must be deemed to have been waived.

Error to Circuit Court, Randolph County.

Harvey Simmons was convicted of operating a motor vehicle on a public highway while he was under the influence of intoxicating liquor, and he brings error.

Affirmed.

E. L. Maxwell, for plaintiff in error.

Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.

Maxwell, Judge:

The defendant was awarded a writ of error to the judgment of the circuit court of Randolph County imposing a fine of $50.00 and jail sentence of 90 days upon conviction for operating a motor vehicle on a public highway of said county while he was under the influence of intoxicating liquor.

The trial in the circuit court was on a warrant of arrest which had been issued against the defendant by a justice of the peace of said county October 22, 1934. The defendant having been found guilty by the justice, appealed to the circuit court.

The error assigned by the defendant and relied on by him was the action of the circuit court in overruling his motion that he be discharged from the prosecution on the ground that the proceeding before the justice was void and therefore the court had no jurisdiction of the case on appeal that the justice was without authority to issue the warrant under the then existing statutes pertaining to fees of justices in misdemeanor cases; that said statutes were tainted with unconstitutionality because of the manner therein provided for the payment of such fees. The same ground was urged in support of motion to set aside the verdict.

The defendant's said position is based upon the holding of this court in the case of Williams v. Brannen, Justice of the Peace, 116 W. Va. 1, 178 S. E. 67, decided January 15, 1935. We there held that the system then current of compensating justices of the peace as set forth in Code 1931, 50-17-14, and 7-5-15, was unconstitutional. It was provided in Code, 50-17-14 that in misdemeanor cases, fees of the justice, not paid by the parties, should be charged and recovered as directed in Code, 7-5-15. The latter section made provision for a general fund to be kept by the sheriff of the county, which fund was to be composed of fines collected by justices of the peace and paid by them to the sheriff. It was required that the sheriff's account should show the amount of fines to the credit of each justice. Further, that justices' fees, not collectible from the parties, should be paid by the sheriff "out of that part of such fund to the credit of the particular justice before whom such fee bill arose, if sufficient, and charged to such account, but neither the county nor the general school fund shall be liable for the fees or costs of any justice in such cases beyond the balance in the hands of the sheriff from fines paid by that justice."

We held in the Williams case that under such fee system, a justice, because of personal interest, was disqualified to act in a misdemeanor case. Following that decision, the legislature changed the said statutes. Acts of the Legislature, 1935, chapters 30, 31, and 32. But the case at bar arose when the statutes stood as they did at the time of the decision in the Williams case. Does it follow, as contended by the defendant, that the action of a justice in such circumstances was void? We think not. The action of a judicial officer who was disqualified by personal interest is voidable, not void....