Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-10-03
The Clause Imposing Fines COnStitu"
tiOnal, but that Imposing, in Addition,
Imprisonment for not Less than
Ten Days nor More than
Twelve Months In
constitutional.

Below we present the opinion of Judge
Flipptn, of the criminal court, in a very i'm
pOrTant case under the VagTamCy act, in which
AttOrney-General Luke Z. Wright appeared
for the state, and I. H. Logwood for the de-
fendant:
State vs.. Matt O'Hara-Ipdctment under tie
act of 1910 for vagrancy. Motion to quash.
This brings pthe question whether, under
said act vagrancy is an indictable O1leuse; OF
whether justices of the peace have the power
4 10 make final disposition of said cases. 1t is
a fundamental rule in the construction of
statutes TO ascertain the intent of the law
giver, and thea 10 carry IL into effect, if not
opposed 20 5 me cOnstltuu nal provision. The
act OF 1919, so Iar as IL conflicts with former
laws On the same subject, repea!S them. II
tee legislature intended 10 confer an eXClu-
sive jurisdiction upon justices o. the peace in
cases Of vsgranCy, and have used appropriate
means to do so, then 1t would follow as a mat
ter Of ecu sc that VagrauCy would DCt be an
indiCtaoie Offause. Then, two questions pre-
sent themselves at the threshold OF this inves-
tigattOn; first, what power did the legislature
intend to confer upon justices OF the peace in
these cases; and, secondly, If they intended
10 grant to them an exclusive jurisdiction, had
the legislature the constitutional power to do
so? Inen as to the legislative intent sec
OF the act reads, THAT il is hereby made the
duty of sll Tcace officers OF the stare to arrest
all Vagr&ni> ent carry them before some US
tice of the peace 10 ne oealt with as tie law
| Directs .la K the phr@soalogy. II does not
| say take them baI 'Ce the grand jury, or g
Judge, or 'tty uLhe- Irazlst a q; bUt
for all peace Outrgas 10 take these
vagTants before in tees of he JeaCs-before
no other persons. This G cary Co}-ie's upon
justices o; the peace an Crigihal, exeluS We jul
risdictiOu iu such Gas Is, and the Cn!y remain
ing quest on IN this connection Is thi Does
Il nos also give them a final disposition OF The
cases? When carried before the justices Of
the peace they are there 10 De dealt with as
the law directs. ne query a1iSeS, what lave
The law, of course teaching yagrancy, The
law embodied l8 the aCt> under COnSiugra-
ton since this il the latest law on the sub
ject. 1t is argued thai tbs justice Of the peace
cannot nave a nna- dlSpOSI ion OF these cases
from the fact tAat uuC erSecJlOn certain pun
sh lBeuts may he inflicted at the di CT ton of
\ the court; that the phrase, "zt .he discretion
| OF the court does not apply to Fne action OF
the Justlcs, DuL must apgiy 10 ne seton Of
! some court OF record. HDCs5 who aTgue tnvS
must admit even if vagrancy i, an indicttble
misdemeauOri ina uuuvf Plea OF guilty ii
! could then be dis Osed OF hy the justice, in
! which event it must be disposed of at The
discretion OF the court" 80 the phrase 80 the
discretion oi the court" does not nee ss,arily
apply to courts OF TecCgd, but may Apply Ia
the official action OF justices Of the peaCh our
Judicial system recognizes a multi 4iIcity OF
court, among hem magistrates or igS ice,
courts We lind nothing j.. the IrgOing
gZestiens wnIcA excludes the idea Du, that
lusJlceS may nave been invested by the lGglS-
lature W tn the .wcr o try and finally de-
termine these cases. II viii be noted that the
act nowhere in express erns declares va
grancy M cUtnle. bat simply mi~dsmeauor.
and many IA suem2anDiS = e not IIUicUable:
for example see % l., lI2}--7.S iHc.U I'VE We
lature to clothe justices Of toe
peace with eX-lus We, original
aud final disposition Of these cases. That
good policy and punlic. practical economy
would favor such on idea, and the language
OF tie act illustrate SUch an Intent. such
being the purpose OF The Legislature, tne
graver questions reua n. suppose tn V did in
Tend II, did they have Inc cons StitutiOl al power
to do so? The penalty mpos sed, II viii be seen,
under rec. is a fine not less than five dollars
nor more than thirty-ive dollars, or imprsOn-
ment In the county wOrkhOuse not less than
ten days nor more than twelve months, at
the discretion OF the court. lStt constitutions
al to inflict such penalty without an indict
ment or pTeSentmcnt, and a II al by jury?
This is the vital question in the case. The
"Fhat no person shall be put to answer any
crI minal charge but by preSentment, Indict-
ment or impris nment." In ., Humphries 80,
Safe VS.. M'GenulS, Judge M'Klnney says:
"From this brief view of the usual manner OF
prosecuting offenders at common law, il ap-
pears that for mere misdemeanOrs persons
might be put TO answer without Indictment
or pIeSentment previously found by grand
jury; and that II was only for 'crimes" in the
pIoper sense OF that term Or felOnious offences
that II was lndlspensl Ole, that the accused be
Tewanted by the finding Cf a grand jury be-
fore the offender could be put 10 an
swer." Judge story, in his commentaries on
the cons tuition, vol g. sec l77S, says in speak
Ing on the same subject, ''and this is regular
" true at The common law of all offences
above the grade of common misdemeanor."
In one word, that these offences above the
grade Of misdemeanOr. must be prosecuted by
Indictment or presenmentIt will then be seen
that the lilh Sec OF the Dill OF rights only has
reference TO the mode Of prosecution, and that
It was not necessary under the constitution to
prosecute miSdemeanOrs by Indictment or
preSeDtmrnt, and has been so directly adjudi-
Gated by the supreme court of this State in
the case referred to, so the statue does not con-
q avene the constitutional provision. The
4 e6th sec. OF the Bill Of Rights says, "that the
Fright of trial by jury shall remain invi0late,
'etc." This has been explained to mean the
fright of trial by jury aS IL existed at common
hlaW at the time OF the adoption of the consti-
\ ution. See Hum N 'OaYin vs.. State, ,TregalIy
eVS. mayor and aldermen OF Memphis 6 Cold,
PraTVF Ttarapf
HbpiniOn Then The question suggests itself
#lnless a party on q charge OF Vagrancy had
"a right TO q trial by jury at the Ii me of the
HhdoptiOn of our constitution he could not now
1tlaim 1t. Judge M'hinney says IN the Hum
10Y. case, p, 80, 'it cannot for moment be sup
Fposed that the term criminal charges was
Entended 10 comprehend apply TO nliSde-
nlednOTS be 1dIse By The cOP!nlgT tan well
by statutory enactment in North Carolina in
force in this territory al the adoption
OF our constitution and still in force, numer-
GUS offenses or the grade of misdemeanOrs
were summari y tcied and punished, without
presentnrnt or indictment, by SinqEs 8ldQis-
trdte as in cases OF drunkeDnes prOf4ne
swearing, Sabbath breaking, UdQrancy, and
others that might be enumerated" SO Judge
A'kinney expressly says that UdgTdacY was
tTiable by a single magistrate at the time of
The adoption OF our constitution Nor does
this view conflict with The eighth section of
We constitution, which says that no man
snail be taken or imprisoned, or dlsseized of
mis- freehold, Liberties or privileges, or out
lawed or eXied, or in any manner de-
prived Of his life, liberty or property but
by the judgment of his peers or The tq1U Of the
land" While he might not He punished nv a
judgment Of his peers in these cases, vet ii is
done according to the law of the land, the law
il existed when our constitution was
adopted. Pennsylvania, with d similar con-
sutuuOu 10 ours taxes the same view Of these
cases. lSee most important case of 8ver &
Davis vs.. Commonwealth, reported in AZ Pa,
p. S9.l In that case, under an act of the legis-
lature police magistrate sent the defend
ants, charged and convicted OF being profess
sionsl thieves, 10 prison for ninety days at
as 10 the constituuonality Of the act, and Mr..
Justice Strong, now OF the supreme
court Of the United States, delivered tue opin-
Ion OF The court, most clear aud fOrclOle
o e, Affirming the judgment below. He took
occasion in said opinion TO remark that
summary conviction for petty Odens.s
against the statutes We're always sustained,
and they were never supposed 10 be in con-
fiIct with the common law right to a trial by
Jury" Then, under this decision, iuRsmuch
as vagrsncy was punishable by single JUS
tice Of the peace at the time when our consti-
tuition was adopted, II may now also be tried
and punished by him. This is So provided
OF such a character as would be contrary TO
tine genius and spirit of our constitution
Now under this act justice Of the peace is
empowered TO teDd q party 10 the work
house for twelve months. We cannot find
that he had sucn sn extraordinary power be-
fore the adoption OF our constitution, and
since that time IL certainly has not been in
creased. Whatever powers he had before our
constitution in such ca>es he has now, unless
these have been abridged by the legislature.
He certainly had the power to fine, and we
think he now has the power 10 commit to
prison. or 10 the WOrkhOuse, Tor a limited pc
Rod, in default OF the payment of the fine
and costs. That single justice at common
law cou impTisOn Vagrants at hard LABOR,
see BuTnes' Justice, vol. 1, p. 300 That great
numbers OF petty cases might oe tried without
the intervention "f y jury. see an enumera-
ton OF the same in 90 d, 3SG. The opinion
was delivered by Judge Henry g, Hm tn, and
] was characterized y a careful Investigation
and vigorous common sense. He goes on 10
state that these examples are enough TO show
that before the constitution punishments
might be inflicted for small Offenses without
the Intervention Of a jury, and that the pro-
! ceedings might be summary and speedy and
efficient. But that a justice Of the peace had
at any time the power 10 Imprlson upon con-
viction for misdeIneanOr, for the period OF
twelve months, we can ind no authority,
and II certainly wOuld be obnoxious to the pro-
visions OF the constitution Already referred
to- IL does not harmonize with the spirit
OF our organic law, which throws around
the liberty OF the citizen, the stTon est Of safe
guards. FOR these reasons we conclude that
| the clause OF the act OF 1915 authorizing Just
| ices of the peace TO impose iMprisoDme nt in
| the workhOuse not less than ten days nor
more then twelve months to be unconstitu-
uonal and void. In holding we do not
mean TO say that the legislature has no right
/ To confer upon justices the power TO imprison
for briel, limited period In such cases, cut
We do determine that the clause OF the act, ss
an entirety fixing the limits of mprtsoil u1ent,