Hendrick v. State

81 A. 18, 115 Md. 552, 1911 Md. LEXIS 168

• Court: Court of Appeals of Maryland
• Decided: April 5, 1911
• Status: Published

Opinion

Boyd, C. J.,

delivered the opinion of the Court.

John T. Hendrick filed a petition in this Court for a writ of certiorari directed to the Circuit Court for Prince George’s County, to the end that the case against him referred to in the petition may be reviewed and that the judgment of the Circuit Court may be quashed. The petitioner was arrested for operating his automobile without having paid the registration fee required by section 133 of the Motor Vehicle Law of Maryland passed in 1910 (Chapter 207), and was taken before a justice of the peace for Prince George’s County. He filed a motion to quash the warrant on the ground that the act was unconstitutional which was overruled by the jus tice, and he was then tried, found guilty and fined the sum of $15.00. He then entered an appeal to the Circuit Court for that county, and the record of the proceedings before the justice having been transmitted to that Court, the petitioner was there tried and the judgment of the justice was affirmed.

Section 140p of the Act of 1910 gives any person convicted by a justice of any offense under the sub-title of the Act the right to appeal to the Court of criminal jurisdiction of the county in which he may be convicted, which is the Circuit Court. The petitioner availed' himself of that right, but contends that he is entitled to the writ of certiorari on the ground that the act is unconstitutional, and that for that reason the Court was acting outside of the jurisdiction conferred upon it by law—the contention of the petitioner being that the Circuit Court was in error in assuming jurisdiction of the case when it had before it an agreed statement of facts. showing that he was a citizen of the United States, a resident of the City of Washington, in the District of Columbia, and conducted and operated his automobile from the City of Washington into Prince George’s County, and while temporarily operating the same as aforesaid was arrested in Hyattsville, in said county, on the charge of operating his said automobile on the highways in the State of Maryland without having procured the certificate of registration required by section 133 of the Motor Vehicle Law of said State.

So far as we are aware this is the first time an application has been made to this Court to grant the writ of certiorari to the Circuit Court (or any Court having like jurisdiction), on the ground that the latter, when sitting in its appellate capacity, hearing an appeal from a justice of the peace or other tribunal which was authorized by law to be taken to it, had exceeded its jurisdiction. That fact alone should cause us to be extremely cautions in entertaining such an application, for our reports contain many decisions in which the jurisdiction of the Circuit Court (we need not mention other Courts exercising like jurisdiction) has been attacked on the ground that the justice of the peace, or other tribunal appealed from, did not have jurisdiction, and hence the lower Court did not have it. If it had been supposed by the profession that there was a remedy by the writ of certiorari, it would surely have heretofore been resorted to by some of the attorneys engaged in such cases.

We have frequently decided that, although when a statute gives the right of appeal to the lower Court and no appeal is expressly given to this Court ordinarily we have no jurisdiction to entertain an appeal from the judgment of the lower Court, if the lower Court and the justice or other tribunal appealed from did not have jurisdiction we would entertain an appeal or writ of error on that ground. As that is thoriughly established in this State, it would of itself be sufficient, reason for refusing to grant a writ of certiorari to test the question of jurisdiction, as appeals or writs of error are the usual methods of bringing cases before this Court for review, and nothing could be accomplished in such cases by writs of certiorari, which could not be by one of those methods. It is true it was said in Gaither v. Watkins, 66 Md. 576, that we were not prepared to go to the extent of saying that “a writ of certiorari ought not to issue in any case where a party has a remedy by appeal or by writ of error,” but it was also there said that “the writ ought not to be granted in any case, where the party has 'a right of appeal, except for the purpose of testing the jurisdiction of the tribunal below.” That had reference to an application to such a Court as the Circuit Court for the writ of certiorari, to be issued to an inferior tribunal, and the reason why that Court should allow the writ to test the jurisdiction is given in that opinion, and is not in any way applicable to this Court. The reason there assigned was, that an appeal to the Circuit Court from an inferior tribunal “brings up the case generally on its merits, and this would in a case like the one before us, involving the question whether the public convenience required the road to be open, subject the parties to an expensive and protracted litigation. Whereas, by certiorari, to test merely the jurisdiction of the commissioners, the question is one to be decided on the face of the proceedings themselves. In such cases it is a more efficient remedy than by appeal.” In this Court we could not consider the merits of the case, but could only entertain the question of jurisdiction, which could be done as fully and as thoroughly by appeal or writ of error as by ceo’tiorari. There is therefore no valid reason for granting the latter.

It would certainly be contrary to all precedents, and not in accordance with the purposes for which this Court was constituted, to issue the writ of certiorari in such a case as this. In many of the States there are constitutional or statutory provisions authorizing their highest appellate Courts to issue this writ, as will be seen by a reference to 4 Ency of PI, and Pr„ 15, etc. But this Court is one of appellate jurisdiction only. In Sevinskey v. Wagus, 76 Md. 335, we held that a statute which provided that “the Court of Appeals, and the Chief Judge thereof, shall have the power to grant the writ of habeas corpus, and to exercise jurisdiction in all matters relating thereto throughout the State” was unconstitutional and void, as the Legislature had no power to confer upon the appellate Court such original jurisdiction. In passing on the question Chief Jttdge- Ai/vey said: “The Constitution, Article 4, section 14, in defining the jurisdiction of this Court, declares, that ‘The jurisdiction' of said Court of Appeals shall be coextensive with the limits of the State, and such as now is or may hereafter be prescribed- by. law;’ that is to say, such appellate jurisdiction as the Court then had or might thereafter have conferred upon it. The Court at the time of the adoption of the present Constitution had, under former Constitutions, appellate jurisdiction only; and the terms by which the jurisdiction is defined in the present Constitution are substantially the same in meaning as those employed in the Constitutions of 1851 and 1864. It would therefore seem to be clear that the-jurisdiction of this Court is appellate only; for if not so, and the Legislature could confer original jurisdiction upon it in cases of habeas cor pus, it could also confer such jurisdiction in cases of mandar mus, or in cases of any other subject-matter of original jurisdiction. This manifestly was never contemplated by the framers of the Constitution, and therefore the attempt by the Legislature to confer such jurisdiction is simply nugatory and void. Ex parte O’Neill, 8 Md. 227; State v. Shields, 49 Md. 301; State v. Glenn, 54 Md. 594.” It will be observed that the Legislature had attempted to confer the power sought to be enforced in that ease.

Of course it was not intended by that decision to say that this Court could not grant a mandamus, certiorari or other appropriate writ in aid of its appellate jurisdiction, but there is no power granted to it by the Constitution to issue writs of mandamus, certiorari, or writs in cases of any other subject-matter of original jurisdiction, and the Legislature has not attempted to do so, if it be supposed that it could constitutionally confer such power, notwithstanding what has already been said on that subject in the former decisions of this Court. Under our system it would.be of little, if any use, if it had the power, for, as we have already said, the question of jurisdiction of the Circuit Court, and of the justices of the peace or other inferior tribunal can be tested by appeal from or writ of error to the Circuit Court, and, in addition to that, where the writ of certiorari is sued out of the Circuit Court to test the power and jurisdiction of the inferior tribunal to act at all in the matter, the Circuit Court acts in its ordinary c6mmon law capacity, and an appeal will lie to this Court from its judgment, B. & H. Turnpike Co. v. N. C. R. R. Co., 15 Md. 193; and that too notwithstanding an appeal is given by the statute from the justice of the peace or other inferior tribunal to the Circuit Court. Bayner v. State, 52 Md. 368; 2 Poe on Pl. and Pr., sec. 723 a.

But even if we had original jurisdiction and were called upon to issue a writ of certiorari in such case as this, there would still be conclusive reasons why we should not d'o so. As under our decisions it is settled beyond all question that when there is an appeal the writ- can only properly issue to inquire into the jurisdiction of the lower Court, and prevent it from transcending the powers validly conferred upon it, we would he met at the very threshold of this case by the fact that there is nothing to show that the lower Court did exceed its jurisdiction.' The learned counsel for the petitioner overlook the distinction so often made by this Court between cases in which there is the right to decide and those in which the question is simply whether they were rightly decided, or as Chiee Judge McShekry, in his concise and forcible way of stating propositions, said in N. Y. Mining Co. v. Midland Co., 99 Md. 512, “the inquiry here is, not whether the trial Court rightly decided but whether it had the right to decide what it did decide.” If the lower Court had the right to decide what it did decide, • then no question can be made in this Court on the ground of want of jurisdiction, and whether it rightly decided what it did decide can only be reviewed by this Court when the right of review is given it. If that Court had no right to decide the constitutionality of the statute, when raised on the appeal to it, what was to become of the case? No other tribunal was given authority to determine it. Surely it can not be the law in this or any other State, that because the constitutionality of a statute is attacked, the Court must then and there stop all proceedings and further consideration of it, and require the case to remain undertermined. But that is precisely what the contention of the petitioner, if sustained, would lead to. If the Court had no jurisdiction to decide that the law was constitutional, where did it get the jurisdiction to do what the petitioner asked it to do—decide that it was not constitutional ? When the petitioner took the appeal and the papers were transmitted to it, it not only had the jurisdiction to decide the case, but it was its manifest duty to do so, unless the parties made some other authorized disposition of it. The statute in terms says that “any person so convicted of any offense under this sub-title shall have the right of appeal from the judgment of such justice of the peace * * * and such Court on such appeal shall hear the case do novo." No appeal to this Court is given but, as we have seen, an appeal will lie to test the jurisdiction. The judgment of the Court to which the appeal is taken under the statute is therefor as final and binding' on the parties as a judgment of this Court would be in any case in which its judgment is final—provided the Court had jurisdiction, and if it did not have, ample remedy i§ afforded the accused by appeal or writ of error.

It is not unusual for State Courts to have questions before them involving provisions of the Federal Constitution, and it can not be said that they have not the jurisdiction to determine such questions, unless there be some case in which the Federal Courts have exclusive jurisdiction. When the State Court determines the question, it is final and binding on the parties, unless reviewed by the tribunal authorized to review it, and it can not be said that such Court had no jurisdiction over the case merely because a Federal question was involved. In this Court we frequently have such questions presented, but it has never been suggested that our decisions were not final and conclusive on the parties, if not taken to the Supreme Court of the United States.

In Rayner v. State, 52 Md. 368, it was contended that the statute under'which the traverser had been convicted before, the justice of the peace, which conviction was-affirmed by the Circuit Court on appeal, was unconstitutional. Judge Alvey, in speaking for the Court, said: “But, whatever may be thought of the particular provisions of the statute supposed to be obnoxious to constitutional objections, and if the objections were conceded to be well taken, it does not follow that the right of appeal was not well and validly given, and that the Circuit Court would not have power and jurisdiction to hear and decide the case.” After saying that it was true that the Circuit Court was not in the exercise of its ordinary common law jurisdiction, but was acting as a Court of special limited jurisdiction, he continued: “Its judgment, however, rendered within the limits of the special jurisdiction conferred, is not only binding, but is final. This Court has no power to review it, and consequently the assignment of errors must be dismissed.” Tbe Court went on to say that, “If, ■instead of tbe appeal under tbe statute, tbe party bad applied for tbe writ of .certiorari, upon tbe specific ground of tbe unconstitutionality of tbe statute, and tbe consequent want of power and jurisdiction of tbe magistrate to proceed under it, tbe Circuit Court then would have been in tbe exercise, not of tbe special limited jurisdiction, but of its ordinary common law jurisdiction; and from its judgment in tbe premises a writ of error or an appeal could have been prosecuted to this Court.”

In tbe case of Judefind v. State, 78 Md. 510, tbe Sunday law was attacked on tbe grounds, amongst others, that it was contrary to tbe first paragraph of tbe 14th Article of tbe Constitution of tbe United States, and tbe. Bill of Rights of Maryland. This Court after repeating what in' substance bad been said in Rayner v. State, in speaking of tbe Circuit Court said: “That Court bad tbe power and authority to entertain the appeal from tbe judgment of tbe justice on tbe question of jurisdiction, as well as on other grounds, and, tbe plaintiff in error having invoked and submitted himself to its jurisdiction, its judgment is final and conclusive.” See also Messick v. State, 82 Md. 583; Roth v. State, 89 Md. 524; Arnsperger v. Crawford, 101 Md. 247; Josselson v. Sonneborn, 110 Md. 546; Smith Premier Co. v. Westcott, 112 Md. 146; 2 Poe on Pl. and Pr., sec. 723 a.

It will be seen from the cases cited and others which might be referred to that if it is desired to test in this Court the constitutionality of a law, which it is alleged is unconstitutional and void, and hence that tbe justice can not lawfully act under it, application for a writ of certiorari can be made to tbe Circuit Court and from the judgment of that Court an appeal can be taken to this Court, but if, instead of doing that, there is an appeal to tbe Circuit Court, under tbe authority of tbe statute giving such appeal, its judgment on the constitutionality of the statute as well as upon other grounds in final and conclusive. Of course, if tbe justice and tbe Court on appeal bad no jurisdiction of tbe subject- matter, or of the parties, by reason of the defendant not being summoned or something of that kind, then there is still an appeal to this Court, but if the Circuit Court had jurisdiction over the subject-matter and the parties, its decision is final. But in none of. those cases or in any others in this State has it ever before been said or suggested that an application can be made to this Court for a writ of ce'i'tiorari directed to the Circuit Court, when the latter had decided the case on an appeal authorized by the statute. That would simply be an unauthorized method of having this Court review a decision of the Circuit Court, which is made by the statute the appellate Court, without further appeal to this Court.

The petitioner in his notes relied on Williamson v. Carnan, 1 G. & J. 196, and Swann v. Cumberland, 8 Gill, 150, as well as some authorities outside of this State, but there is nothing in them which requires us to further prolong this opinion by a discussion of them. In a number of the other States, as we have seen, it has been held that under their Constitutions and statutes, their highest appellate Courts have jurisdiction to issue this writ, but of course we must be governed by our own Constitution, statutes and decisions, and there is nothing in the two Maryland cases mentioned which conflicts with what we have said—especially when considered in connection with later decisions, where such questions as we have been considering have been more directly presented.

It follows that the application for the writ of certiorari must be denied.

Application for writ of certiorari denied and the petition dismissed, the petitioner to pay the costs.