City of Greenville v. Foster , 101 S.C. 318 ( 1915 )

July 8, 1915. The opinion of the Court was delivered by This is an appeal from the order of his Honor, the Circuit Judge, sustaining the constitutionality of the municipal Court of the city of Greenville. The following facts appear in said order:

"Defendant was tried before the recorder of the city of Greenville and a jury on five charges of selling whiskey in violation of the city ordinances. Formal warrants were waived by the attorneys of defendant, but it was conceded in the argument before me that at the trial before the recorder that counsel for the city and for defendant agreed that the five cases should be tried on the same testimony, before the same jury, and as if upon separate warrants. The jury found defendant guilty upon each of the charges, and the recorder sentenced him to a fine of sixty ($60) dollars, or to serve thirty (30) days on the city chain gang in each case. The exceptions which were served on the recorder and the city attorney were not argued before me. The only question argued on appeal was as to the constitutionality of the recorder's Court of the city of Greenville; appellant contending that said Court is unconstitutional, in that the legislature has delegated to the city council the creation of the Court, whereas the Constitution (art. V, sec. 1) requires the legislature to create all Courts. This question was not raised in the recorder's Court, nor by any of the exceptions. The act of 1904 (24 Statutes at Large, p. 397), amended in 1905 (24 Statutes at Large, p. 911), gives a city council of any city in this State whose population is between 2,000 and 20,000 inhabitants authority to establish by ordinance a municipal Court. This act is codified in the Civil Code of 1912 as sec. 3001, vol. I, of said Code. The city council of Greenville by an ordinance regularly created the recorder's Court for said city. The question now presented is the constitutionality of the act, codified as sec. 3001 of the Code of 1912, assuming that this question has been properly raised here."

The first question raised by the exception is whether the defendant was guilty of one or of five offenses. His Honor, the Circuit Judge, states that the exception raising this question on appeal from the sentence imposed by the recorder was not argued before him. It was, therefore, waived. We may say, however, that even if it had not been abandoned, it could not be sustained.State v. Kelly, 89 S.C. 303, 71 S.E. 987.

The next question presented by the exceptions is whether the municipal Court of Greenville has jurisdiction to try the defendant.

Section 3001, Civil Code of Laws 1912, is as follows:

"It shall be lawful for the city council of any city in this State whose population by the last census was not less than two thousand, and not more than twenty thousand, * * * by ordinance duly enacted, to establish in said city a municipal Court, for the trial and determination of all cases arising under the ordinances of such city."

This provision conferred upon the city council of Greenville the power to establish the Court in question, unless said section was in violation of the Constitution. The question whether this provision was unconstitutional is not properly before this Court for consideration, as it was not raised in the recorder's Court, nor by any exception assigning error in that respect, on the appeal from the sentence imposed upon the defendant by the recorder.

Furthermore, the sentence was imposed by a defacto, if not by a dejure, Court.

But, waiving such objection, the exception raising this question cannot be sustained.

Section 1, art. V of the Constitution, contains the provision that:

"The judicial power of this State shall be vested in a Supreme Court, in two Circuit Courts, to wit: A Court of Common Pleas having civil jurisdiction and a Court of General Sessions with criminal jurisdiction only. The General Assembly may also establish county Courts, municipal Courts and such Courts (may be established) in any or all of the counties of this State inferior to Circuit Courts as may be deemed necessary, but none of such Courts shall ever be invested with jurisdiction to try cases of murder, manslaughter, rape or attempt to rape, arson, common law burglary, bribery or perjury."

But sec. 1, art. VIII of the Constitution, also contains the provision:

"The General Assembly shall provide by general laws for the organization and classification of municipal corporations."

These two sections must be construed together, and, when so construed, it is apparent that the General Assembly may either establish such municipal Courts as it may deem necessary, in any or all the counties of this State, or it may provide by general laws for the organization and classification of municipal corporations.

The municipal Court of Greenville is, therefore, not in conflict with sec. 1, art. V of the Constitution, and had jurisdiction to try the defendant for the offense of which he is charged. The power conferred upon the General Assembly to provide by general laws for the reorganization and classification of municipal corporations includes the power to establish municipal Courts.

Appeal dismissed.