State v. Pender

• Decision Date: 31 January 1872
• Citation: 66 N.C. 313
• Court: North Carolina Supreme Court
• Parties: STATE v. DAVID PENDER, et al.

66 N.C. 313

STATE

v.DAVID PENDER, et al.

Supreme Court of North Carolina.

January Term, 1872.

1. The power of the Legislature to confer criminal jurisdiction on the Chief Magistrates of towns and cities, stands on a different footing from the power to confer civil jurisdiction.

2. By the 4th section of Article IV of the Constitution, the Judicial power of the State is vested in a Court for the trial of impeachments, a Supreme Court, Superior Courts. and Special Courts; the jurisdiction of Special Courts is defined by section 19 of the same Article.

3. The acts of 1868-'69, chap. 178, and chap. 2 of the particular act, sec. 1, page 432, gives (among other officers enumerated) to Mayors, Superintendants of Police or other chief officers of cities and towns, power “to cause to be kept all laws made for the preservation of the public peace,” &c.; and chap. 3, sec 1, of the same act gives them power “to issue process for the apprehension of persons charged with any offence, and to execute the powers and duties conferred in this chapter,” but no final jurisdiction is given to them by any part of said act.

4. The power thus given to the chief officers of towns, &c., can be supported by the authority given the Legislature by the Constitution, to create Special Courts for cities and towns, and it can be no objection to the act in question, that it does not authorize these officers to try persons charged with misdemeanors, but simply to arrest and bind them over.

5. There is nothing in the Constitution taken altogether, prohibiting the Legislature from giving to cities and towns the power of selecting and designating their chief officers.

Cases of City of Wilmington v. Davis, 63 N. C. R., 582, Town of Edenton v. Wool, 65 N. C. R., 379, cited and approved.

This was a motion to set aside and vacate a judgment rendered against the defendants as bail of George A. Smith, heard before Moore, Judge, at Fall Term, 1871, of Edgecombe Superior Court.

The facts stated in the record are as follows:

John Norfleet was Magistrate of Police of the town of Tarboro', Edgecombe county, and as such issued the following warrant, viz:

State v. George A. Smith.

STATE OF NORTH CAROLINA,

To any Constable or other officer of said County--GREETING:

WHEREAS, Windsor Bilby hath complained on oath before me, a Magistrate of Police for the town of Tarboro', that George A. Smith did, on the 4th day of October, A. D. 1870, at and in the county and town aforesaid, violently assault the said Bilby, by shooting at him with a pistol, contrary to law and against the peace and dignity of the State. You are, therefore, commanded to arrest the said Smith and have him before me, or some other justice of the peace to answer said complaint and be otherwise dealt with according to law.

+----------------------------------------+
                ¦(Signed)¦JOHN NORFLEET, M. of P. [SEAL.]¦
                +----------------------------------------+
                

Upon said warrant is the following endorsement:

State v. George A. Smith:

The defendant is this day brought before me, and it appearing that he is guilty (from the evidence); it is adjudged that he be recognized in the sum of $500, with good sureties, for his appearance at the next Term of the Superior Court for Edgcombe county, &c.

JOHN NORFLEET,

Magistrate of Police for Town of Tarboro.

The said Smith gave bond in the sum required for his appearance at the Superior Court for Edgecombe county with the defendants as sureties. At said Term of the Court the said Smith failed to appear, and judgment nisi was entered against him and his sureties. A scire facias was issued against them and at February Term 1871, the judgment was made absolute. At the subsequent Term September 1871, a motion was made to set aside and vacate said judgment and the Court being of opinion that the said “Norfleet had no jurisdiction of criminal matters to any extent, and that the warrant issued by him for the arrest of the said Smith, as well as all the subsequent proceedings had before him were void,” adjudged, that the said judgment be set aside and vacated, from which judgment the Solicitor for the State prayed an appeal to the Supreme Court.

Attorney General for the State .

Bridgers & Bridgers for defendants .

RODMAN, J.

The power of the Legislature to confer criminal jurisdiction on the chief magistrates of cities and towns, stands on a different footing from their power to confer civil jurisdiction on such officers. The cases of the city of Wilming ton v. Davis, 63 N. C., 582, and the town of Edenton v. Wool, 65 N. C., 379, which relate only to the civil jurisdiction, have therefore no application to the present case.

By the Constitution (Art. IV, sec. 4,) the judicial power of the State is vested in “a Court for the trial of impeachments, a Supreme Court, Superior Courts, Courts of Justices of the Peace, and Special Courts.”

What Special Courts are intended to be, is defined by sec. 19 of the same Art., “The General Assembly shall provide for the establishment of Special Courts for the trial of misdemeanors, in cities and towns where the same may be necessary.”

The Act of 1868-'69, ch. 178 of the Acts, ch. 2, of the particular Act, sec. 1, p. 432, enumerates the officers who “shall have power to cause to be kept all laws made for the preservation of the public peace,” and to require security to keep the peace, and along with the Judges of all the Courts, including the Judges of the Special Courts then existing, or which might afterwards be created, confers these powers on the “mayors, superintendents of police, or other chief officer of all cities and towns in this State.” Ch. 3, sec. 1, of the same Act, enumerates the chief officers of cities and towns among the magistrates who may “issue process for the apprehension of persons charged with any offence, and execute the powers and duties conferred in this chapter.” Other sections of this chapter relate to the powers and duties of such chief officers; but no final jurisdiction to try offenders, such as is given to Justices of the Peace by chapter IV, is anywhere given to them.

The magistrate who issued the process under which the supposed offender in this case was arrested, is the chief officer of the town of Tarboro, and his official title is Magistrate of Police. Private Acts 1821-'32, ch. 66, p. 65.

The question, therefore, is whether the powers granted to the chief officers of the towns by the Acts of 1868-'69, ch. 178, can be supported as an exercise of the legislative power to create Special Courts for the trial of misdemeanors in cities and towns.

It can be no objection to the Act in question, that it does not authorize these officers to try persons charged with misdemeanors, but only to arrest them and bind them over to the Superior Court. As arrest must necessarily precede trial, the power to try offenders must include the power to arrest them. It the Legislature has not granted in full the power which it had a right to grant, that is no reason why their grant of a part of it shall fail. It is said, that conceding the power of the Legislature to give to the chief officers of the towns the powers of Special Courts, the power must...