City Council v. Eichelberger , 44 S.C. 351 ( 1895 )

The opinion of the court was delivered by

Mr. Justice Gary.

The defendant was tried in the may- or’s court of the'city of Greenville, for violating an ordinance of said city entitled: “An ordinance to fine and imprison persons found guilty of riotous conduct.” The punishment provided for in said ordinance is a fine not exceeding $50, or imprisonment not exceeding twenty days, at the discretion of the mayor, or both fine and imprisonment within the above limits, at the discretion of the mayor. Under the testimony, he was found guilty and fined in the sum of $50, or days imprisonment. From this sentence the defendant appealed to the. Circuit Court upon several exceptions, one of which was because the fine imposed was excessive, even if there was •a violation of the ordinance, in view of the mitigating circumstances of the case.

The appeal was heard by his honor, Judge Watts, at the November term of the Circuit Court for said county, who, after hearing read the testimony in the case, and argument of counsel, ordered that $45 of the fine imposed be remitted, and that the judgment of the city council be modified to that extent. The city council of Greenville appealed from said order on the following exceptions: “I. Because his honor erred in ordering that $45 of the fine imposed in this case be, and is hereby, remitted, and the judgment of city council be modified to that extent, in that having concurred with the mayor that the defendant was guilty of violating the aforesaid ordinance, the amount of the fine was purely discretionary with said mayor, with the exercise of which his honor had no right or authority of law to interfere. II. Because his honor should either have affirmed or reversed the judgment, of the mayor, and had no right or authority of law to modify said judgment, as stated in said order.”

1 None of the testimony is set forth in the statement of the “Case.” The correctness of the order appealed from depended upon the facts in the case, unless it should be held that the law does not authorize the Circuit Judge, under any circumstances, to modify the sentence imposed by the mayor. In Columbia Water Power Co. v. Columbia Electric c&. Co., 43 S. C., 154, the court says: “This court must assume that the Circuit Judge properly decided all the questions of fact upon which his judgment had, necessarily, to rest. Even if there was error on his part in his finding of facts, it is not the subject of review by this court in a law case.” If the law authorizes the Circuit Judge, under any circumstances, to modify the sentence imposed by the mayor, then this court, in the absence of all testimony, must assume that the facts and circumstances were such as to justify the granting of the order making such modification of the sentence.

2 Let us, then, consider whether the Circuit Judge had the power to modify the sentence imposed by the mayor. In the charter of the city of Greenville (19 Stat., p. 109), it is provided that: “The mayor and aldermen of said city are hereby severally and respectively vested with all the powers of trial justices in this State, within the limits of said city, to try and punish all persons charged with the violation of the ordinances of said city.” Under the case of City Council v. Brown, 42 S. C., 184, and the authorities upon which that case was decided, it clearly appears that the mayor exercised the powers of a trial justice when he tried said case. The extent of the punishment which he had the power to inflict was limited by the ordinance aforesaid. Section 66, Code of Criminal Procedure, provides that: “Every person convicted before a trial justice of any offence whatever and sentenced, may appeal from the sentence to the next term of Court of General Sessions for the county. All appeals from trial justice’s courts in criminal cases shall be taken and prosecuted as hereinafter prescribed.” Section 71 provides that: “The said appeal shall be heard by the Court of General Sessions upon the grounds of exception made; and upon the papers hereinbefore required, and without the examination of witnesses in said court. And the said court may either confirm the sentence appealed from, reverse or modify the same, or grant a new trial, as to the said court may seem meet and conformable to law.” It thus appears that the statute, in express terms, confers upon the Circuit Judge the power to modify the sentence appealed from. The only limitation upon his power is, that it must be, “as to the said court may seem meet and conformable to law.” There is nothing in the “Case” showing that the modification of the sentence by the Circuit Judge did not seem to him “meet and conformable to law.”

It is the judgment of this court, that the order appealed from be affirmed.