S. v. . McAden , 162 N.C. 575 ( 1913 )

CLARK, C. J., concurring. The defendant was indicted for violating chapter 445, Laws of 1909, regulating the use of public highways by motor vehicles.

From the verdict of guilty and the judgment thereon, the defendant appealed. (576) The defendant was tried and convicted in the justice of the peace court for violating section 18, chapter 445, Laws of 1909, which reads as follows:

"Any person violating any of the provisions of this act shall be guilty of a misdemeanor, and any one who shall be convicted thereof, or who shall plead guilty to any complaint for the violation thereof, shall be punished by a fine not exceeding $50 and costs of prosecution, or by imprisonment not exceeding twenty days, or both."

Section 19 provides that "All police justices of any city or justices of the peace of any township where any such violation shall occur shall have jurisdiction to hear, try, and pass sentence for any and all violations of any of the provisions of this act."

The warrant in this case was issued by a justice of the peace. The justice adjudged the defendant guilty and imposed a sentence of $10 and costs, from which judgment the defendant appealed to the Superior Court.

In the Superior Court the case was tried de novo upon an amended warrant, without a bill of indictment.

It is plain that under the Constitution the justice's court had no final jurisdiction, as the punishment prescribed for the offense exceeds the limit fixed by the organic law.

The attempt to give the justice of the peace final jurisdiction is rendered abortive by the addition of the words "or both" at the end of section 18 of the act.

The act conferring final jurisdiction is of no effect unless the punishment prescribed is within the constitutional limitation. The justice had no jurisdiction except to bind over, and the Superior Court could proceed to try only upon a true bill of indictment returned by (577) the grand jury. S. v. Fesperman, 108 N.C. 770; S. v. Perry, 71 N.C. 523; S. v. Cherry, 72 N.C. 123;S. v. Heidelburg, 70 N.C. 496; S. v. Vermington, 71 N.C. 264;S. v. Hooker, 145 N.C. 581; Connor and Cheshire on Const. of N.C. p. 581.

The point presented by this appeal has been so frequently decided that a further discussion of it is unnecessary.

The motion to quash the proceeding is allowed, and the proceeding dismissed.

Reversed.