The times. [volume] (Richmond, Va.) 1890-1903, 1892-01-15
UNCONSTITUTIONAL LAW
DECISION or THE sUrREmE Court.
A Section OF the Code OF Virginia Declared
Null and Void by Judge Lewis.
The Otheg Opinions.


One Of tho most important decisions handed
down by tho Supreme Court of Appeals for
some time was yesterday delivered by Judge
Lewis in the cause Of Miller against the Com
monwealth. The case came from the Circuit
Court Of Rockingham county. Judge Lacy
dissenting
Tho plaintiff in error. Mary Miller. was tried
before Justice Of the peace of Rockingham
county and sentenced 10 pay fine o. 500
and TO be confined in jail six months for keep
ing house Of ill-repute From this iudg-
nent of this justice she appealed 10 the
county court. ana after the docketng Of the
appeal in that court and before any further
proceeding IN the case was heard, she moved
the UT O. ouasE the warrant and 70 DIS
charge Ter from custody. OF the ground that
the Justice had no jurisdiction II the case,
aud therefore. the Judgment WAS VOID. but
tle motion was yerruled tO which ruling
she excepted. The case was then tried before
Jury which returned verdict o. guilty.
fixing the punishment az one month and
twenty DAYS confinement In jail aad
the payment Of fine OF SIT. motion
for new trial was made and overruled and
Judgment pronounced IN accordance with the
wards affirmed ly the circuit court.
writ Of error was awarded 10y ono O; ths
/ Judges of this court The Stat tory punish
ment for the ohense 10 question y conhne-
Lent M the jail not exceed one year and
fine not exceeding 5000 t. ode. section $500.
and by an act of Assembly APP
proved March IL. 1878, now carried
into section 4l06 OF the Code justices
Of the peace and police justices are given
/ iurisdi ton over the ofense concurrent with
that I the county amt corporation courts.
J Section 4l07. however. gives tine accused. in
case oi conviction. the right of appeal TO the
/ county corporation of the nustings court. and
PROV ies that unless let 20 bal he snail Ds
committed 10 Jail by the Justice until the next
/ term OF sucn court and by section 40 10 ~
provided that the accu ed shall be entitled u
J .ial Hy Jury ND the same manner az II he had
been in ictel for the o. ense IN the appellate
court 10 rs G. Intended that section 4ll6 IT
the Code ~ SO far IA It gives jurisdiction 20
Justice of the peace try case ike the pros
ent. is void because Il denies g. tie accused
the Institutional right of trial by jury IN
other WORDS. that % IS repugnant to that
clause OF the Constitution which ordans that
"in all capital n criminal prosecutions man
hath the right 20 demand the cause and ma
tlre If his eccusation, and o. 81 eedy
trial by an impartial jury" Article l., sec
ton TO-
TRUE RULE.
II MISUNDERSTANDING rule i'm the construc-
ton of State statutes that the lie islature
possesses all legislative power not prohibited
by tie fundamental aw. IL Is also true that
every legislative act ia presumed 10 be valid.
Where. however there is q C ear incOmpat-
bility between the Con-t.tution and the act
the latter Is invalid an ought 70 he so de-
r.areN. Tor the Constitution is the paramount
law binding alike upon all the departments
of tho government. Is there thon. such IN
compatiO lity between the act in question So
far as 10 relates To- d case like the presen. and
the Constitution, After careful c0nsidera-
we are OK opinion that there is. The guar
antee of the Constitution relied on IS plain
and unamuiguOus 10 declares in unmis-
taxable terms shat IN AT criminal prOseca q Ons
the accused hath the right 20 speedy trial
by a. impartial Jury. Language could hardly
be palmer or less liable % miscOlstructi n.
must be co ceded. however. that notwith-
stand n br al language of Constl-
tuition there ar, many mi or ofenses such
as sabbath breaking. drunke ness va rancy
And vast variety OF others VIII ch are triablo
without Jury because they were so triapie
when the Constitution was adopted and the
right of tra by jury which rs secured Is the
riUht as IL OK stel ut the time the Constitution
was adopted. This was decided IN the recent
case OF OK parte Marx 81. Virginia 40. and such
IA tie well settled law on the sub ect. hut
tho onense OF keeping "a house OF ll-repute 10
not of tAa, class. such an Ohense IS "a pub
he nuisance. and. therefore. is iudictablo at
common law. /. Russell. crimes 255.)
Accordingly there is no authority of which
we are aware holding that the olense IS, or
that 40 any time IN our Judicial history 70 has
ever been tuabe without "A jury and II ~
needless to say that it Is not competent for
the Legislature ~ classifying II, AS IS done IN
section so of the Code with % enses which
are So triable depr We person accused OF
the 0lense of tho benefit OF ury trial
snILAE CAS-.
In Warren against Pc pie. 3 Park. C.. c..
5it 10 was ned that an act OF the legislature
of New York which subjected the keepers OF
houses of iii-repute % summary CONVICTION be-
fore "A DO tice ol the ponce WAS unconstltu-
toual and void because 10 deprived the ac-
cu-ed OF "a trial by ury. To allow the legls-
'atfre 90 .aid the Court, o. except from the
operation OF q constitutional nov SION by dl-
rect enactment matter clearly falling
within rs meaning would sanction fraud
upon O. organic law. and might IN the end
destroy ITS obligation
That t act in question was well Intended.
that Is 90 say, 10 provide aspeedy anu cheaper
mode wi prosecuting o. euses against morality
and decency. is Obvi us But Us validity ~
not % he determine with reference 10 any
consideration q that sort The OnsttutiOn.
we repeat. ia the supreme .aw. aud tho right
oil trial by Jury which lt secures - not % DO
sacrificed or impaired in the interest Of
economy. Tar letter nmendt tie Constitution
than 10 violate 10 or 10 sauct lt5 violation.
however good may have been the motive OK
those hy whom the ret va passed
Judge Lewis AZ tn. Io no in ms opinion
q ,ed "A case from tne courts of Washington
winch was sim ar IN many respects 20 the ne
now treated by m. lie stated tiat 10 SUI
ureme Court he'd that q trail ny Jury ~@
ri ht ami lust under tie Con,ttution OF tue
United ~tates Concluding tho opinion, Judge
e..l- said We mi k their view is sound,
and more in accorda re with the spirt and
etter of tho 4, Institution than tne contrary
Wv which has been couto ded Tor. j no
5lar,nt4e Of the ederal Constitution. u IS
True applies only 20 pr ceedings I'D the ; 90
ersI conrts. bnt the pr Wsl Us OF the
Constitution ~ Nirgn MIA are Z the same erect,
and ouglt.we think, TO ie similarly interpret
ed The Judgment must therefore. be 10
ver.ed and Z plaintiff In error discharged
from custody
OIHin 0PIsloSs.
other decision. delivered yesterday were as
I,,,lls against Sutherland From the Cir.