SAMUEL G. DAVIS, Appellant, v. CHARLES S. DIGGS, Magistrate for the Township of Owensgrove, Grand Bassa County, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, GRAND BASSA COUNTY. Argued April 28, 1952. Decided June 6, 1952. 1. Official misconduct is a public wrong statutorily defined as a criminal offense and is to be prosecuted upon an indictment. 2. Civil jurisdiction over a criminal cause of action cannot be acquired by consent of the parties concerned. Appellant instituted an action against appellee in the court below alleging that appellee, as Magistrate of the Township of Owensgrove, Grand Bassa County, had been guilty of official misconduct in failing to deliver to appellant monies collected in execution of judgments in actions for debt. The court below ruled in favor of appellee. On appeal to this Court, action dismissed for lack of jurisdiction over subject matter of a criminal nature. Momolu S. Cooper for appellant. A. B. Ricks for apdelivered the opinion of pellee. MR. CHIEF JUSTICE RUSSELL the Court. Appellant instituted several actions of debt against various parties before Charles H. Diggs, Magistrate of the Township of Owensgrove, Grand Bassa County. After these cases were adjudged in appellant’s favor executions were prayed for and issued for the collection of the debts. From the records certified to this Court, it is apparent that only a portion of the monies collected were turned 238 LIBERIAN LAW REPORTS over to appellant. Repeated demands made to Magistrate Diggs were of no avail ; and appellant entered action for official misconduct against him in the Circuit Court of the Second Judicial Circuit. The case was taken up and disposed of with a judgment in favor of Magistrate Diggs and costs against the appellant. From this judgment the appellant excepted and prayed an appeal to this Court. The Criminal Code of 1914 makes official misconduct a misdemeanor and defines it as follows : “Where any duty is or shall be enjoined by law upon any public officer or upon a person holding a public trust or employment, every wilful omission to perform such duty, where no special provision shall have been made for the punishment of such delinquency by statute, is a misdemeanor and is punishable by a fine of not more than five hundred dollars. The Court may also recommend the dismissal of said delinquent official.” Crim. Code, sec. 125. Thus we see that official misconduct is a public wrong statutorily defined as a criminal offense and is to be prosecuted upon an indictment and tried by a jury. Jurisdiction is the power by which courts hear and determine cases ; and it cannot be conferred solely by consent of parties. Thus, although appellant filed this case in a court having civil jurisdiction, where the case was taken up and disposed of, yet the offense was a public wrong and not a private wrong; hence it could only have been heard and determined upon an indictment duly found and tried before a jury. This Court must therefore refuse jurisdiction and declare the proceeding below a nullity. We also order the Resident Circuit Judge for the znd Judicial Circuit to command the County Attorney for Grand Bassa County to institute criminal proceedings forthwith against Magistrate Diggs upon the oath of appellant in these proceedings under section 125 of the Criminal Code of ‘914, for the wrongs alleged in the LIBERIAN LAW REPORTS 239 complaint herein. The case is dismissed for want of jurisdiction ; costs disallowed. And it is hereby so ordered. Dismissed. MR. JUSTICE SHANNON, dissenting. From the opinion read by our distinguished Chief Justice it is apparent that the procedure of summary investigation of illegal acts of justices of the peace and city magistrates by the judges of the several circuit courts has been pronounced contrary to a section of the 1914 Criminal Code which provides for prosecution for official misconduct. This Code, as the majority of my colleagues claim, repeals all previous statutes in conflict with its provisions–the statute of 1902 entitled “An Act Relating to Justices of the Peace and City Magistrates” being inferentially declared inoperative because its terms are held to conflict with the Criminal Code. The issue upon which the entire proceeding before the Circuit Court for the Second Judicial Circuit, Grand Bassa County, has been dismissed was never raised either in said court or during the hearing before us. The decision of my colleagues is therefore, to say the least, surprising. An additional point upon which I find myself unwilling to join my colleagues is their finding of a conflict between the Act of 1902 and the Criminal Code of 1914. In my opinion the Legislature did not intend violators of such a law to be characterized as criminals; prosecutions thereunder were intended to be purely summary and of a civil nature; hence provision was made for commencement of such proceedings by summons instead of by arrest. I quote the relevant portion of said Act: “Whereas the Justices of the Peace of the various Counties overleap their power and prerogatives, and assume to tax the aborigines and Americo-Liberians with exhorbitant and illegal costs; and, 240 LIBERIAN LAW REPORTS “Whereas, many of said officers assume to try, and determine cases over which the law gives them no jurisdiction, thereby causing great imposition and suffering among the weaker and poorer classes of our citizenship ; and “Whereas it is not the intentions of the Government to allow any of her citizens and subjects to be thus imposed upon ; “Therefore it is enacted by the Senate and House of Representatives of the Republic of Liberia in Legislature assembled: SEC. I. That from and after the passage of this Act, all Justices of the Peace and other officers having concurrent jurisdiction with them, are hereby enjoined to follow strictly the letter of the law created as found in Liberia Statute, old Blue book, entitled ‘An Act establishing the Judiciary and fixing the powers common to the several Courts,’ (see new edition, page i 14’16) and all Bills of Costs shall be strictly in accordance with the rates laid down in the ‘Bills of Fees,’ found on the 3oth and 31st pages of the new edition of the Blue Book, except where such Bills have been amended by expressed Act of the Legislature. Any Justice of the Peace, violating the provision of this section shall be deemed guilty of official misconduct; and upon conviction upon a summons, investigated before the Judge of the County Courts of Quarterly Sessions, [now the circuit courts] shall be fined the sum of Twenty-five Dollars for either trying a case over which the law gives them no jurisdiction, or for ordering the payment of any item of cost not being laid down by law. . . .” L. 1901-02, pp. 33-34, sec. Because the position of my colleagues in dismissing the entire proceedings forecloses any review of the merits of the issues involved, suffice it to say that I am in agreement with the finding of the court below that Magistrate Diggs could not be held to have converted any money. LIBERIAN LAW REPORTS 241 But, since there was evidence that some money never reached those for whom it was collected, Magistrate Diggs should have been ordered to see that the amounts collected were correctly remitted. To take from the circuit courts the supervisory power they have been exercising for over forty years of holding a check over the actions of justices of the peace and city magistrates would necessitate a long and unduly cumbersome process of prosecution under indictments even for minor matters heretofore summarily adjudicated. It is an elementary principle that, in construction of statutes, the intent of the lawmakers must be taken into consideration. The intent to correct irregular and unlawful acts of justices of the peace and constables permeates the statute in question. A procedure of summary investigation was provided therein with a statement that any judge shall have power to investigate such complaints or charges either in or out of court. Hence I have refrained from affixing my signature to the judgment herein.