Town of Batesburg v. Mitchell

• Decision Date: 17 September 1900
• Citation: 37 S.E. 36,58 S.C. 564
• Parties: TOWN OF BATESBURG v. MITCHELL et al.
• Court: South Carolina Supreme Court

37 S.E. 36

58 S.C. 564

TOWN OF BATESBURG v. MITCHELL et al.

Supreme Court of South Carolina

September 17, 1900

Appeal from common pleas circuit court of Lexington county; Ernest Gary, Judge.

L. M Mitchell and J. Walter Mitchell were convicted for violation of a town ordinance. From the judgment of the court of general sessions dismissing an appeal taken by defendants to such court from the conviction before the town council defendants appeal. Affirmed.

The following are the judgment of the lower court and the exceptions thereto:

"This case was heard by me on appeal from the sentence of the town council of the town of Batesburg upon an agreed state of facts. The facts were orally stated and are substantially as follows: The defendants, L. M Mitchell and J. Walter Mitchell, were convicted before the town authorities of Batesburg on the 18th day of April, 1898, for violating an ordinance of said town, and were sentenced to pay a fine each of $25, or labor on the streets of Batesburg for a period of 30 days. After the above-named sentence, the defendants gave notice of appeal to this court, and (instead of the bond required to stay the execution of said sentence) they paid to the proper authorities the amount of said fine under protest. No appeal bond was executed, the appellants contending that the payment of the fine under protest would dispense with the requirement of the bond to stay the sentence. Upon the call of the case the solicitor moved to dismiss the appeal on the ground that, the defendants having paid the amount of the fine imposed by the authorities of said town of Batesburg, that ended the case, and there was nothing from which an appeal could be taken. The defendants contend that, having paid the fine under protest, they are properly before the court, and rely upon the case of Town of Lexington v. Wise, reported in 24 S.C. 163. I am of the opinion that the appeal should be dismissed for the reason taken by the solicitor. I think there is nothing from which an appeal can be taken. Concede the fact that there were errors on the part of the town authorities of Batesburg, and suppose, for the sake of argument, I should sustain the appeal, and order a new trial of the case; the town authorities would very properly say, 'We have no charge against these defendants, and refuse to try the case.' That course would put an end to the case. I presume the defendants would then demand a return of the money, but that would be no answer to this case. That cause might or might not give rise to a civil action, but with that we have nothing to do at this stage of the question now before the court. No; the defendants have complied with the judgment of the town council, and that ends it. Suppose they had elected to serve out the other alternative of the sentence,--worked on the streets of said town for 30 days; could it be argued that after they had worked the allotted time an appeal could be heard from said sentence, even though they filed a protest on every day they were required to labor? I think not. The defendants have discharged themselves from any sentence that the town had against them by complying with the terms, viz. paying the fine imposed, and that put an end to the case. I have carefully read the case cited by the appellants' counsel (Town of Lexington v. Wise), and find the facts are not the same. In the Lexington Case the authorities contended that an appeal did not lie from their sentence, and refused to accept an appeal bond, and forced the defendant to either pay the fine or perform the other condition of the sentence. The circuit court held that an appeal did lie from such sentence, and the supreme court sustained this ruling. But I fail to find anywhere in the opinion of the supreme court any foundation for the proposition of law that is here invoked, that if a defendant pays his fine under protest he can still appeal. The mode of appeal from the municipal court of Batesburg is fixed by statute, and that mode must be pursued. It is therefore ordered that the appeal be dismissed."

Exceptions.

"The respondent above named, the town of Batesburg, will please notice that the above-named appellants will appeal to the supreme court of South Carolina from the order and judgment of the Hon. Ernest Gary, filed on the 24th day of September, A. D. 1898, in the above-named case, upon the following grounds, to wit: (1) Because the court erred in holding that the appeal from the municipal court of the town of Batesburg should be dismissed because, the defendants having paid the amount of the fine imposed by the authorities of the said town of Batesburg under protest, and in lieu of a bond, pending an appeal to the supreme court, there was nothing from which an appeal could be taken. (2) Because the court erred in holding, 'No; the defendants having complied with the judgment of the town council, and that ends it.' (3) Because the court erred in holding that the defendants 'were sentenced to pay a fine each of $25, or labor on the streets of Batesburg for a period of 30 days.' (4) Because the court erred in holding that 'the defendants have discharged themselves from any sentence that the town had against them by complying with the terms, viz. paying the fine imposed, and that put an end to the case.' (5) Because the court erred in dismissing the appeal herein." "(8) Because the court erred in not holding that said town council had committed an error of law in failing to issue, and to have the same served upon the said L. M. Mitchell and J. Walter Mitchell, a warrant of arrest charging the said defendants with riotous conduct on the streets, and also in further failing to summons in writing the said defendants to appear before said council and stand trial before them upon the charge of riotous conduct on the streets, when section 4 of Ordinance 3 of said town of Batesburg provides 'that every person or persons against whom any information is exhibited, shall be summoned by note in writing served upon him or her, or left at his or her usual place of abode, by any officer of council, to appear before them to answer the charge,' etc. (9) Because the court erred in not holding that said town council had committed an error of law in trying and pronouncing judgment and sentence upon the defendants in their absence and without notice to them, upon the charge of riotous conduct on the streets." "(11) Because the court erred in not holding that said town council had committed an error of law in assuming jurisdiction to try and pronounce judgment against the defendants for the alleged offense, when the testimony taken at said trial fails to show that said alleged offense was committed within the corporate limits of said town of Batesburg. (12) Because the court erred in not holding that the sentence pronounced against the defendants by said town council is erroneous and unlawful, because the same is indefinite and uncertain, the language of said sentence being as follows: 'Mr. Walter Mitchell and Dr. Mitchell were found guilty for riotous conduct on the streets of Batesburg, on Saturday, April 16, 1898, and they were fined 25.00 each, or 30 days each on the streets."' Johnstone & Wingard, for appellants.

J. Wm. Thurmond, for respondent.

McIVER C.J.

This is an appeal from the judgment of his honor, Judge Ernest Gary dismissing the appeal of the defendants from the sentence imposed upon them by the town council of Batesburg for violating one of the ordinances of said town. It seems to be conceded that the town council of Batesburg are invested by the charter of said town with all the powers and duties of a trial justice (now a magistrate) in the trial of...