* Corpus Juris-Cyc. References: Constitutional Law, 12CJ, p. 1202, n. 56; Criminal Law, 16CJ, p. 154, n. 79, 88; p. 184, n. 4; p. 382, n. 50; Judges, 33CJ, p. 1017, n. 38, 45; p. 1023, n. 57; Justices of the Peace, 35CJ, p. 545, n. 80; Effect of interest in controversy as disqualifying judge, see 15 R.C.L. 527; 3 R.C.L. Supp. 466; 4 R.C.L. Supp. 1000; 5 R.C.L. Supp. 842; 6 R.C.L. Supp. 921. Appellant, Hitt, was convicted in the circuit court of Tallahatchie county of the unlawful sale of intoxicating liquor, and fined one hundred dollars and *Page 724 costs, and sentenced to thirty days in jail, and prosecuted his appeal here.
The prosecution was initiated before F.L. Hall, a justice of the peace of that county, on an affidavit charging Hitt with the unlawful sale of one gallon of whisky. The justice of the peace issued a warrant, and thereafter the defendant was arraigned. The justice of the peace heard the case, and adjudged the defendant guilty as charged, and imposed a fine of one hundred dollars and ninety days in jail. From this judgment, Hitt immediately appealed the case to the circuit court, and filed an appeal bond in accordance with the statute. In the circuit court, the defendant moved to quash the affidavit, to dismiss the cause, and to be discharged, setting up in the motion that on the trial in the justice of the peace court he had there moved to dismiss the cause because the justice of the peace was disqualified to try him, for the reason that said justice of the peace was an interested party, and not qualified to try the cause under the Constitution of the state, and the laws, providing that justices of the peace shall receive compensation for trying causes and misdemeanors by costs collected from the defendant only in event of a conviction, and that his trial by the justice of the peace under such circumstances would be a violation of the Fifth and Fourteenth Amendments to the Constitution of the United States as construed by the supreme court of the United States in the case of Ed Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243.
It was further set up in the motion that because of said interest of the justice of the peace he was without jurisdiction to try the cause, and that therefore, on appeal of the cause to the circuit court, it was also without jurisdiction to entertain the appeal except to quash the affidavit.
A plea in abatement, of the same tenor and effect, was filed by the defendant in the circuit court, and thereupon *Page 725 the circuit court allowed the defendant a special bill of exceptions setting forth that Hitt had proof before the circuit court on the motion to quash that the defendant was forced by the justice of the peace to a trial over his objection stating the disqualification of the justice of the peace to try the cause because, as alleged, his compensation as justice of the peace depended upon a conviction of the defendant. The bill of exceptions further stated that the defendant showed that he raised the question of disqualification before the justice of the peace prior to his arraignment and before entering his plea of not guilty.
The bill of exceptions shows that the circuit court overruled the motion to quash the affidavit and discharge the defendant. A special bill of exceptions to the same effect was granted by the judge of the circuit court on the plea in abatement. Oral proof was introduced to show what had occurred with reference to the disqualification of the justice of the peace in the trial before him. No order was entered on the minutes of the circuit court as to the motion or as to the plea in abatement; but the bill of exceptions shows that the court overruled the motion and held the plea insufficient.
The record does not show that the district attorney made any objection to the introduction of oral testimony as to the proceeding in the justice of the peace court. The Attorney-General, however, here raises the point that no order was entered on the plea in abatement; but, since the motion to quash raises the same question, we have concluded that the constitutional questions raised by the defendant in the lower court are of such moment as to elicit from us a decision of the questions thus presented. Neither in the bill of exceptions, nor in the record, is it shown whether or not the justice of the peace had theretofore tried any defendant on a misdemeanor or any other criminal charge.
The first question presented is, Was the justice of the peace shown to have been disqualified? *Page 726
Section 171 of the Constitution of 1890 provides for the establishment of the office of justice of the peace, and provides also that justices of the peace shall have concurrent jurisdiction with the circuit court of all misdemeanors, and further stipulates that the legislature shall provide for an appeal in all such cases to the circuit court. Section 2403, Hemingway's 1927 Code (section 2749, Code of 1906), vests jurisdiction, concurrent with the circuit court of the county, in the justices of the peace over all crime occurring in their several districts, where the punishment prescribed does not extend beyond a fine and imprisonment in the county jail, and further stipulates that, if the justice of the peace of a district shall be disqualified, any justice of the peace may have jurisdiction thereof. Section 2404, Hemingway's 1927 Code (section 2750, Code of 1906), establishes the practice of said courts. Sections 2408 and 2411, Hemingway's 1927 Code, provide for the method of trial by jury of six persons, and section 2406, Hemingway's 1927 Code, provides for bail for appearance for trial. Section 2405, Hemingway's 1927 Code, provides, among other things, that the judgment and committal shall require the defendant to pay the fine imposed upon him and all costs, and that he is committed to the county jail until such payment of fine and costs. Section 69, Hemingway's 1927 Code, provides that, in all cases of criminal offense tried by a justice of the peace, an appeal may be taken to the circuit court of the county, and that such appeal stays the judgment appealed from on giving bond in the penalty of not less than one hundred dollars nor more than five hundred dollars, and in intoxicating liquor cases not less than one hundred fifty dollars nor more than one thousand dollars. This statute further provides that on the appearance of the defendant in the circuit court his case shall be tried anew and disposed of as other cases pending therein. Section 70 provides that appeals may be taken without supersedeas, upon affidavit of the person convicted *Page 727 that he is not able, on account of poverty, to give bond, and provides that his case, upon the filing of an affidavit, shall be removed to the circuit court and there tried de novo.
It has been consistently held by this court that a judge of a court who has cause to recuse himself must pass upon the question of his disqualification, and it is incumbent upon the challenging party to bring to the attention of the court, under the rules of evidence, the facts upon which such disqualification rests. SeeCashin v. Murphy, 138 Miss. 853, 103 So. 787. In this case, the defendant is not shown to have introduced any evidence of the disqualification of the justice of the peace.
Paragraph (x) of section 1962, Hemingway's 1927 Code, is as follows:
"For services as conservators of the peace and for examinations or trials of all state cases in which the state fails in the prosecution, to be paid out of the county treasury on the allowance of the board of supervisors, on a detailed fee bill in each case, annually, a sum not exceeding — sixty dollars."
The remainder of this section sets out the schedule of fees to be taxed, and received by justices of the peace in all cases authorized by section 1922 of Code of 1927 and section 261 of the Constitution of 1890.
We observe this became the law in this state, by chapter 217, Laws of 1912, as amended by chapter 132, section 1, Laws of 1920, and Laws 1922, chapter 165, changing section 2182, par. (v) Code of 1906, in this material particular. Under the latter section, justices of the peace could collect from the county treasurer only fifty dollars, and only in cases for services as conservators of the peace or in the investigation of felony charges.
Counsel for appellant here cites the case of Connerly v.Lincoln County, 99 Miss. 731, 55 So. 963, which construed the statute as it existed in 1906, allowing fees only to justices of the peace for services as conservators of *Page 728 the peace and in investigations in felony cases. The law of 1920 materially changes that statute so as to embrace all trials in state cases in which the state fails in the prosecution. A justice of the peace is not disqualified so long as he can look to the county for payment in event he acquits a defendant on trial in a criminal case. It was incumbent upon the defendant to show that the justice of the peace had earned by his acquittal the sixty dollars allowed him by the law. He was before the justice of the peace, presumably the docket was there, and it was a matter of a few minutes of time to ascertain the truth if the justice of the peace was to be recused because of his interest to convict the defendant in order to secure his costs.
Without elaboration, we think Mr. Chief Justice TAFT, in the case of Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243, plainly recognized that our state was one of those states providing compensation for justices of the peace in those cases in which the defendant charged with a misdemeanor was acquitted. With the briefs in the Tumey case before us, we know that the very statutes which are called to our attention were brought to the attention of that court, and Mr. Chief Justice TAFT, after reviewing the statutes of other states which made no provision for the payment of justices of the peace in cases of acquittal, uses this significant language:
"In other states than those above mentioned the minor courts are paid for their services by the state or county regardless of acquittal or conviction."
In the light of the sixty dollars annual payment allowed by the statute in case of acquittal, considering the small amount of costs, two dollars and seventy-five cents, in this case, we do not think the record shows the disqualification of the justice of the peace, if perchance, it should be held that, under our system of criminal practice and procedure, a justice of the peace would be held *Page 729 disqualified because of the small amount of two dollars and seventy-five cents which he would be allowed in case of a conviction.
2. Conceding, for the sake of the argument, that we are in error in the conclusion stated above and that it appears from the statute that the justice of the peace in the instant case was disqualified because of his interest in the two dollars and seventy-five cents, the amount of his costs, has the defendant in this case been denied due process of law as set forth in the Fourteenth Amendment to the Federal Constitution? An examination of the statutes and Codes of our state reveals that for a period of more than eighty years it has been the established custom to impose costs on the defendants convicted of misdemeanors, and that the defendant stands committed until such fine and costs be paid, and that the justices of the peace, through those years, have been permitted to retain the costs. We know that Mississippi is, for the most part, rural and agricultural, and that, as a general rule, the earnings of those holding this office are, of necessity, small. Justices of the peace seem to fit the place for the immediate trial of offenses occurring in their neighborhoods, and for otherwise discharging the duties incident to a minor court.
As the appeal here prosecuted is bottomed upon the case ofTumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243, we think the statement of facts therein readily discloses the unusual situation produced by the statutes of Ohio. Mayor Pugh was given jurisdiction of the person of defendant by statute. Tumey was not entitled to a jury in the mayor's court. As we view the facts, his jurisdiction was extended so as to make the office of mayor a profitable one to said mayor and a profitable one to the town of which he was mayor. The costs were twelve dollars, and he was earning considerable money as a direct result of his sitting in trial of criminal cases. The defendant was entitled to *Page 730 an appeal, but only upon a bill of exceptions, and, although he was to be deprived of his liberty, at no point does it appear that he could ever have the question of his guilt or innocence submitted to a jury, or any other impartial tribunal. The amount collected in fees and distributed to the various associates of the mayor and prosecutors of the violators of the liquor statutes was immense. No such state of facts is presented by the record in this case, and in the light of our own holdings and our system of the administration of justice, we say that condition of affairs could not arise in Mississippi as is disclosed by the record in the Tumey case. Our court has consistently and uniformly held that, where a judgment of a justice of the peace is voidable only, it may not be attacked collaterally, and that it is subject to review only where the appeal is granted by statute. The record discloses in this case that in the trial de novo in the circuit court, which is our common-law court with added powers, the defendant in this case had a fair and impartial trial, before a fair and impartial jury and a fair and impartial judge. This is unquestionable, and must conclusively answer the contention of the appellant in this case unless the judgment was absolutely void. According to the unbroken precedent in this state, the judgment was voidable only, and, upon the question of disqualification of the judge, the court is not thereby ousted of jurisdiction. That point must be raised prior to the time the court loses jurisdiction of a case. Ex parte Grubbs, 79 Miss. 358, 30 So. 708; Nimocks v. McGehee, 97 Miss. 321, 52 So. 626; Yazoo M.V.R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 834, 42 L.R.A. (N.S.) 1172, Ann. Cas. 1914C, 968; Dixon v. Rowland, 143 Miss. 270,108 So. 807; Bryant v. State, 146 Miss. 533, 112 So. 675; 23 Cyc. 596-600; 35 C.J. 544.
If the judgment was void, habeas corpus would be the remedy in this state, and the last announcement thereon was in the case of Dixon v. Rowland, 143 Miss. 270, 108 So. 807, wherein the Chief Justice of this court said: *Page 731
"The disqualification of a judge because of his interest in a case, or of his relationship to a party thereto, can be availed of only by an objection to the judge made on that ground, either before his judgment is rendered, or, if made thereafter, before the judge has lost control of the judgment (Y. M.V.R.R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 834, 42 L.R.A. [N.S.] 1172, Ann. Cas. 1914C, 968), and his decision thereon is subject to review only in an appellate court on an appeal thereto if an appeal to such a court lies from the judgment rendered."
To the same effect is the case of Donnell v. State,46 Miss. 661; also Scott v. State, 70 Miss. 247, 11 So. 657, 35 Am. St. Rep. 649, and Ex parte Phillips, 57 Miss. 357.
The effect of the trial de novo is the strenuous effort of this state to see to it that a defendant charged with a criminal offense is awarded a fair and impartial trial as accorded by the law of the land.
The defendant in this case gave an appeal bond. If he had not done so, still he could have had an adjudication of his guilt or innocence and right to liberty, by the mere filing of an affidavit. If he had been arrested on the same day and there had been no justice of the peace court, the sheriff who caught him in the act, or had information that authorized him to arrest defendant under the law, would have required a bond before he could be released, or he would have had to remain in jail to await trial. In its practical effect, there is no difference. The judgment of the justice of the peace was stayed. It never had any effect upon the trial of his case in the circuit court before a jury of twelve men and a judge; both being impartial so far as the record shows. His trial in the circuit court was as if there had never been a trial before a justice of the peace, and was effectual to correct any and all errors committed by the justice of the peace either as to a ruling of law, or as to a ruling on facts. He not only had a review of his case, but he had a retrial *Page 732 of his case, with all the advantages that are accorded to a defendant whose life or liberty are at stake. Under the rule announced by our court that, where a judgment is voidable, the remedy is in the appellate court where the trial may be denovo, as it were, vacating the judgment of the justice of the peace and ignoring it, thereby the state has awarded to the defendant due process of law, or a trial in accordance with the law of the land as set forth in the Fourteenth Amendment.
Counsel for the appellant would have us apply the due process of law clause to one incident only of this case, and eliminate all others.
Mr. Justice PITNEY, in the case of Frank v. Mangum, reported in 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, said:
"As to the `due process of law' that is required by the Fourteenth Amendment, it is perfectly well settled that a criminal prosecution in the courts of a state, based upon a law not in itself repugnant to the Federal Constitution, and conducted according to the settled course of judicial proceedings as established by the law of the state, so long as it includes notice, and a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, is `due process' in the constitutional sense" — citing authorities.
And the court said with reference to proving the conditions surrounding the trial, absence of the defendant when the verdict was rendered, and as to whether or not jurisdiction was lost to receive the verdict and pronounce sentence as follows:
"But it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court. The laws of the state of Georgia (as will appear from decisions elsewhere cited), provide for an appeal in criminal cases to the supreme court of that state upon divers grounds, including such as those upon which it is here asserted *Page 733 that the trial court was lacking in jurisdiction. And while the Fourteenth Amendment does not require that a state shall provide for an appellate review in criminal cases (citing authorities) it is perfectly obvious that where such an appeal is provided for, and the prisoner has had the benefit of it, the proceedings in the appellate tribunal are to be regarded as a part of the process of law under which he is held in custody by the state, and to be considered in determining any question of alleged deprivation of his life or liberty contrary to the Fourteenth Amendment. In fact, such questions as are here presented under the due process clause of the Fourteenth Amendment, though sometimes discussed as if involving merely the jurisdiction of some court or other tribunal, in a larger and more accurate sense involve the power and authority of the state itself. The prohibition is addressed to the state; if it be violated, it makes no difference in a court of the United States, by what agency of the state this is done; so, if a violation be threatened by one agency of the state but prevented by another agency of higher authority, there is no violation of the state. It is for the state to determine what courts or other tribunals shall be established for the trial of offenses against its criminal laws, and to define their several jurisdictions and authority as between themselves. And the question whether a state is depriving a prisoner of his liberty without due process of law, where the offense for which he is prosecuted is based upon a law that does no violence to the Federal Constitution, cannot ordinarily be determined, with fairness to the state, until theconclusion of the court of justice in its courts" (italics ours) — citing Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667;Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835;McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867;Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79, 15 Am. Crim. R. 253; Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 653; Carfer v. Caldwell, *Page 734 200 U.S. 293, 26 S.Ct. 264, 50 L.Ed. 488, 489; Waters-Pierce OilCo. v. Texas, 212 U.S. 86, 107, 29 S.Ct. 220, 53 L.Ed. 417-428; Re Frederich, 149 U.S. 70-75, 13 S.Ct. 793, 37 L.Ed. 653-656; Whitten v. Tomlinson, 160 U.S. 231, 242, 16 S.Ct. 297, 40 L.Ed. 406, 412; Baker v. Grice, 169 U.S. 284-291, 18 S.Ct. 323, 42 L.Ed. 748-750; Minnesota v. Brundage,180 U.S. 499-503, 21 S.Ct. 455, 45 L.Ed. 639-641; Urquhart v. Brown,205 U.S. 179, 182, 27 S.Ct. 459, 51 L.Ed. 760-761.
The court there concluded that the Federal court could not ignore the fact that there had been a fair and impartial trial of the case subsequent to the error committed in the lower tribunal, and the court said further:
"This is not a mere matter of comity, as seems to be supposed. The rule stands upon a much higher plane, for it arises out of the very nature and ground of the inquiry into the proceedings of the state tribunals and touches closely upon the relations between the state and the Federal governments."
We think the announcement of the court in the Frank case,supra, is conclusive, convincing, and controlling here.
However, since the supreme court of the United States decided the Tumey case, supra, DAWSON, District Judge, in Ex parteMeeks (D.C.), 20 F.2d 543, with the Tumey case before him analyzed it as it related to the proposition there involved, viz., that the defendant, under the law of Kentucky, had a right to appeal, that he had open to him procedure which he declined to adopt which might have accorded him due process of law, and held that, as he failed to avail himself of such right to appeal to the state circuit court and have a trial de novo through the above rights of appeal, he could not obtain his release on a writ of habeas corpus. We point to that case as reflecting our views, and especially the authorities there cited.
We conclude that the judgment in the justice of the peace court was voidable; that, under our procedure, *Page 735 Hitt would not have been entitled to a writ of habeas corpus to secure his liberty; that he was awarded due process of law, by which he could secure a rehearing of his case de novo in a court of competent jurisdiction, and whatever error was committed by the justice of the peace in his view of the law, or his determination of the facts, was cured by the full, free, fair, and impartial de novo trial accorded him in the circuit court.
Under our Constitution and laws, the justice of the peace had jurisdiction of the person of Hitt, and jurisdiction of the subject-matter herein, to determine a misdemeanor case where the sentence imposed by law was fine and imprisonment in the county jail.
It follows that, under the due process of law sections of both state and federal Constitutions, Hitt was deprived of no right accorded him by the law of the land.
Affirmed.