Mississippi Supreme Court, 1938

Rawson v. State

Mississippi Supreme Court · Decided November 7, 1938 · Ethridge

184 So. 309; 183 Miss. 284; 1938 Miss. LEXIS 240 (Southern Reporter)

Counsel

Dudley Ramsey, of Forest, for appellant. No provisions were ever made for the election of an additional justice of the peace in District Number Three as provided by Chapter 174 of the Laws of 1932. On the 8th day of January, 1936, Governor Conner undertook to appoint F.R. Walter Justice of the Peace in and for District Number Three in Scott County and F.R. Walter executed a bond and took the oath of office, and assumed to continue to act as Justice of Peace of District Number Three, as did M.P. Morehead. The original trial in this cause was had on affidavit before F.R. Walter, acting as justice of peace under authority of the appointment of Governor Conner as hereinabove mentioned. Walters was not a de jure officer. Chapter 174 of the Laws of 1932 provides that there shall be one justice of peace in each justice district in the county, but at the discretion of the board of supervisors, they "may provide for the election" of an additional justice of peace. The order of the board of supervisors is a nullity as the board had no authority to do anything except to prove in their discretion for "the election" of an additional justice of the peace. This they did not do. A board of supervisors acts by virtue of limited jurisdiction and can only exercise those powers expressly conferred by the Legislature. In other words, they could provide for the election of a justice of peace but they could not create a vacancy by an order of this kind, so that we have this situation: a justice of peace who continued to act after the expiration of his term, and after his successor has been elected and has duly qualified by the filing of a bond and taking of the oath. Such a one is not a de facto officer. 35 C.J. 452, sec. 4; State v. Fountain, 14 Wn. 236 , 44 P. 270. He occupies no better position than one who has been appointed to a position after the position has been abolished. Dabney v. Hudson, 68 Miss. 292 , 8 So. 545. W.D. Conn, Jr., Assistant Attorney-General, for the State. The right and title of F.R. Walter to the office of justice of the peace cannot be raised by a motion in arrest of judgment. State v. Joyner, 148 Miss. 560 , 114 So. 340 ; Carter v. State, 167 Miss. 331 , 145 So. 739 ; Tucker v. State, 103 Miss. 117 , 60 So. 65. Under the repeated decisions of this court, the record shows that the justice of the peace who tried appellant at least was a de facto officer. Pringle v. State, 108 Miss. 802 , 67 So. 455; Powers v. State, 83 Miss. 691 . That the title of a judge may not be attacked collaterally, see: Bird v. State, 154 Miss. 493 , 122 So. 539 ; Dixon v. Roland, 143 Miss. 270 , 108 So. 807 ; Wilson v. State, 113 Miss. 748 , 74 So. 657.

Opinion of the Court

Ethridge, P. J.,

delivered the opinion of the court.

Pat Rawson, the appellant, was convicted in the justice of the peace court, the case was appealed to the circuit court, where it was tried anew, and the appellant was again convicted and sentenced to pay a fine and serve a term in the county jail. The jail sentence was suspended, and part of the fine also, during good behavior.

After the conviction in the Circuit Court, the appellant moved in arrest of judgment; on the ground that the person acting as justice of the peace was neither de facto nor de jure justice of the peace; and that neither *287 the justice court nor the Circuit Court has jurisdiction to try the case. The motion in arrest of judgment was overruled, and this is the only question presented on appeal.

It appears that for a number of years F. R. Walter was a justice of the peace in District 3 or Beat 3, of Scott county, Mississippi; and that in 1932 the legislature reduced the number of justices of the peace in each district from two to one, with the proviso that the board of supervisors could create) an additional justice of the peace in each district. In the primary election of 1935 one Moorehead was nominated for justice' of the peace of such district, and in the November election was duly elected justice of the peace. In October, 1935, after the primary election, but before the general election, the board of supervisors passed an order reciting: “The board of supervisors of Scott county, Mississippi, exercising their discretion under chapter 174 of the General Laws of Mississippi of 1932, in response to petitions so to do, hereby order that an additional justice of the peace may be provided for districts No. 2, 3 and 4, of Scott county, Mississippi; that is to say that there he two justices of the peace in .said districts; that this order shall not take effect until after the termination of the term of office of the present justices of the peace of said districts. Ordered this the 7th day of October, 1935.”

No election for justice of the peace was ordered, and after the expiration of the term of office of the justice of the peace, 1932 to January, 1936-, the Governor of the state appointed Walter to that, office-, the latter gave bond and qualified for the office, and entered upon the discharge of his duties. No election was ordered by the board of supervisors; and the affidavit in the present case was made on the 6th day of July, 1937.

It is contended that the appointment so made was without authority, and void, and that there was neither a justice of the peace de facto nor de jure. Section 103 of the state Constitution provides: “In all cases, not *288 otherwise provided for in this constitution, the legislature may determine the mode of filling all vacancies, in all officies, and in cases of emergency provisional appointments may be made by the governor, to continue until the vacancy is regularly filled;” etc.

Under this section of the Constitution the Governor has the right to make a provisional appointment of a justice of the peace, where no election had been held, to hold office until the vacancy is regularly filled. There was no' election in the present case, so the incumbent was lawfully in office by appointment of the Governor, where he may remain until an election is held to fill the vacancy. See State v. Lovell, 70 Miss. 309, 12 So. 341. The board of supervisors were vested with authority, under chapter 174 of the Laws of 1932, to create an additional justice of the peace for any beat of the county, and did so by the order above recited.

The office became effective under the order at the expiration of the term of the then incumbent, which term expired on the first Monday of January following. The office then became an office de jure, and the appointee of the Governor became justice of the peace de jure on being appointed and qualifying. Consequently, Walter was a de jure justice of the peace. Certainly he was in possession of the office, exercising the functions thereof, under color of authority, and this at any rate would constitute him a de facto justice of the peace, whose right to the office could not be challenged in the manner here sought.

It follows that the judgment of the court below must be affirmed.

Affirmed.

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