State v. Schelton
| Decision Date | 29 July 1933 |
| Docket Number | 25,830 |
| Citation | 186 N.E. 772,205 Ind. 416 |
| Parties | State of Indiana v. Schelton |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Evidence---Judicial Notice---Compensation of Justices of the Peace.---Court takes judicial notice that justices of the peace in Steuben County are compensated in criminal cases on fee basis. p. 418.
2. CRIMINAL LAW---Justice of the Peace---Appeal---Trial De Novo.---When a criminal action is appealed from a justice of the peace, the cause is tried de novo. p. 418.
3. CRIMINAL LAW---Justice of the Peace---Appeal---Jurisdiction of Circuit Court.---If the justice of the peace had no jurisdiction in a criminal case, the circuit court can acquire none on appeal to it. p. 418.
4. CRIMINAL LAW---Justice of the Peace---Jurisdiction---Personal Interest in Fees.---2106 Burns 1926, giving justices of the peace jurisdiction in cases of misdemeanor punishable by fine only, does not violate the due process clauses of the Federal Constitution because such justices are remunerated on a fee basis. p. 418.
From Steuben Circuit Court; Clyde C. Carlin, Judge.
Robert Schelton was convicted in a justice of the peace court of speeding and, on appeal to the circuit court, the cause was dismissed. From the judgment of dismissal, the State appealed.
Reversed.
Arthur L. Gilliom, Attorney-General, James M. Ogden Attorney-General, Harry L. Gause and E. Burke Walker, Deputy Attorneys-General, for the State.
John H Schlencher, for appellee.
The appellee was charged by affidavit, filed May 20, 1927, with the violation of the motor vehicle law by speeding. Section 10140, Burns 1926.
A warrant was issued for the arrest of the appellee, and on May 21, 1927, he was brought before the justice of peace of Pleasant Township, in Steuben County, Indiana, who entered a plea of not guilty after appellee stood mute and then, after hearing the evidence, found him guilty and assessed a fine of one dollar and costs of the action.
The appellee appealed to the circuit court, and there filed a motion to dismiss for the reasons that the justice before whom he was tried was without jurisdiction, and also that section 75 of chapter 169 of the Acts of 1905 (Section 2106, Burns 1926) is unconstitutional. The motion was sustained by the court, and the state appeals.
The assignment of errors by the appellant are as follows: (1) The court erred in sustaining the appellee's motion to dismiss for want of jurisdiction of the justice of the peace; (2) the court erred in holding that that part of section 75 of chapter 169 of the Acts and Laws of the General Assembly of the state of Indiana of the year 1905, being an act entitled an Act concerning public offenses, conferring upon justices of the peace in criminal cases concurrent jurisdiction with circuit courts to try and determine all cases of misdemeanor punishable by fine only, is unconstitutional for the reason that in a trial of said cause before the justice the defendant would be subject to deprivation of his liberty and property without due process of law as by the 5th and the 14th amendments to the Federal Constitution guaranteed because of the justice having a direct, personal, substantial, pecuniary interest in finding against the defendant for the costs which the justice would receive as his personal fee on a conviction.
Section 75 of chapter 169, Acts 1905 (section 2106, Burns 1926), is as follows: "The jurisdiction of justices of the peace in criminal cases shall be co-extensive with their respective counties, and they shall have exclusive original jurisdiction in all cases where the fine assessed can not exceed three dollars, and concurrent jurisdiction with the criminal court and circuit court to try and determine all cases of misdemeanors punishable by fine only; and in trials before justices, fines to the extent of twenty-five dollars, with costs, may be assessed; and they shall have jurisdiction to make examination in all cases; but they shall have no power to adjudge imprisonment as a part of their sentence, except in the manner specially provided in this act."
Section 2109, Burns 1926, provides what fees justices of the peace may charge and what salaries certain justices of the peace are to receive. Justices of the peace located in townships having a specified population are placed upon a salary and those in townships having a less population are upon a fee basis. This court takes judicial knowledge of the fact that the justices of the peace in Steuben county are upon a fee basis, and therefore the justice of the peace of Pleasant township, Steuben county, received for his remuneration in the trial of criminal cases, fees as provided by statute.
When a criminal action is appealed from a justice of the peace, the cause is tried de novo. Peelle v. State (1903), 161 Ind. 378, 68 N.E. 682; Harlan v. State (1921), 190 Ind. 322, 130 N.E. 413.
But if the justice had no jurisdiction of the cause of action, the circuit court can not acquire jurisdiction on appeal. Jolly v. Ghering (1872), 40 Ind. 139; Mays v. Dooley (1877), 59 Ind. 287; Horton v. Sawyer (1877), 59 Ind. 587.
The question presented in the instant case is: Does a justice of the peace have jurisdiction to hear a criminal case under section 75, chapter 169 of the Acts of 1905, where his remuneration depends entirely upon fees as provided?
Section 14 of Article 7 of the Constitution of Indiana provides that: It will thus be seen that our Constitution provided for the office of justice of the peace. It is one of the oldest offices known to our law, and our state, as well as practically every other state, from its organization has recognized the need and usefulness of the office of justice of the peace. Through all these years, with few exceptions, it has operated on the fee basis.
The appellee practically rests his contention upon the case of Tumey v. State of Ohio, decided March 7, 1927, and reported in 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A. L. R. 1243, decided by Chief Justice Taft. If the facts in the instant case were the same as those in the Tumey case then the opinion of Chief Justice Taft should be followed, but as we view this opinion it is not decisive of the questions before us in the instant case.
In the case of Tumey v. State of Ohio, supra, the defendant, Tumey, was charged with unlawfully possessing intoxicating liquor, and was arraigned and tried before the mayor of the village of North College Hill, Hamilton County, Ohio. Tumey moved for his dismissal because of the disqualification of the mayor to try him under the 14th Amendment. The question in the case was whether certain statutes of Ohio in providing for the trial by the mayor of a village of one accused of violating the Prohibition Act of the state (General Code Ohio, Sections 6212-13, et seq.), deprive the accused of due process of law and violate the 14th Amendment to the Federal Constitution because of the pecuniary and other interests which those statutes give the mayor in the result of the trial. Chief Justice Taft held that these statutes did violate the 14th Amendment, and denied the accused due process of law. In order to fully comprehend and understand the opinion of Judge Taft it is necessary to consider these Ohio statutes.
Section 6212-15, General Code of Ohio provides that: "No person shall, after the passage of this act . . . manufacture, . . . possess . . . any intoxicating liquors."
Section 6212-17 provides that: "Any person who violates the provisions of this act . . . for a first offense shall be fined not less than one hundred dollars nor more than one thousand dollars; for a second offense he shall be fined not less than three hundred dollars nor more than two thousand dollars; for a third and each subsequent offense, he shall be fined not less than five hundred dollars nor more than two thousand dollars and be imprisoned in the state penitentiary not less than one year nor more than five years."
Section 6212-18 provides, in part, that: "Any justice of the peace, mayor, municipal or police judge, probate or common pleas judge within the county with whom the affidavit is filed charging a violation of any of the provisions of this act, when the offense is alleged to have been committed in the county in which such mayor, justice of the peace, or judge may be sitting, shall have final jurisdiction to try such cases upon such affidavit without a jury, unless imprisonment is a part of the penalty but error may be...
To continue reading
Request your trial