¶1(dissenting).
¶2I regret very much that I am unable to agree with the majority opinion in this case.
¶3The “Statement” in the transcript of record appears as follows:
“The appellant, Herbert McAbee, was indicted for driving a motor vehicle on a public highway while under the influence of whiskey or some narcotic, was tried by a jury on March 6, 1951, and found guilty. The indictment did not allege that this was a second or subsequent offense. The appellant was sentenced to serve three (3) years in the South Carolina State Penitentiary.
“On March 7, 1951, motion to re-open the case for the purpose of sentencing was made and denied. Due notice of intention to appeal to the Supreme Court was given.
“The appellant was tried and convicted on November 10, 1947, in the Spartanburg, South Carolina, City Recorder’s Court for driving on November 8, 1947, while under the influence of intoxicants; the sentence of the Recorder’s Court was the service'of thirty (30) days or the payment of One Plundred ($100.00) Dollars.
“On August 29, 1949, the appellant was sentenced to serve thirty (30) days or pay a fine of Fifty ($50.00) Dollars by Magistrate Esten C. Taylor, Esquire, for driving under the influence of intoxicants.”
¶4The exceptions present first the question of whether the County Court had jurisdiction where the indictment merely alleged that the defendant was driving under the influence *279of intoxicants and did not allege that it was a second or subsequent offense. The pertinent part of the indictment reads as follows: “… that he did willfully operate a motor vehicle on a public highway while under the influence of whiskey or some narcotic, … Section 1004 of the Code of 1942 sets forth the manner in which objections to an indictment shall be made, and this procedure was not followed in the instant case. The proper time to have raised such issue was prior to the swearing of the jury, objection to be taken by demurrer or motion to quash the indictment. Appellant having failed to raise the issue below is precluded from doing so here. State v. Smith, 215 S. C. 387, 55 S. E. (2d) 343. This renders unnecessary a consideration of whether the rule as set forth in State v. Parris, 89 S. C. 140, 71 S. E. 808, would be applicable in the matter before us.
¶5There remains the propriety of the imposition of sentence in accordance with Section 57(g)(3) of Act 281, at page 485, 1949 Acts and Joint Resolutions, where the two prior convictions were both had in courts of inferior jurisdiction. Appellant contends that Magistrate Taylor lacked jurisdiction by reason of the fact that the offense there was a second offense, the penalty for which is imprisonment of one year or the payment of a fine of not less than $1,000.00, or both, while the magistrate’s court jurisdiction is limited' by Section 923 of the Code of 1942 and Article V, Section 21, of the Constitution of 1895, to those cases where the punishment does not exceed $100.00 or imprisonment for 30 days. In our opinion appellant’s contention on this score is correct, for, in view of his first conviction in the Recorder’s Court, when appellant was brought before Magistrate Taylor it was upon a charge which could have resulted in sentence of one year imprisonment or fine of $1,000.00. This clearly places the offense beyond the magistrate’s court. State v. Mellette, 106 S. C. 224, 91 S. E. 4.
¶6Such lack of jurisdiction renders the purported conviction before Magistrate Taylor a nullity. As stated in 21 C. J. S., *280Courts, § 116: “Where a court is without jurisdiction in the particular case, its acts and proceedings can be of no force or validity, and are a mere nullity and void, not voidable, even prior to reversal, whether the lack of jurisdiction appears on the face of the record or by proof outside of it; … ”
¶7It matters not that the validity of the purported conviction is questioned here rather than in some manner in that cause, for a failure of jurisdiction of the subject matter can never be waived and may be raised at any time. 14 Am. Jur., Criminal Law, Sec. 214. Nor is such purported conviction immune to collateral attack for such immunity presumes jurisdiction of the offense charged. 15 Am. Jur., Criminal Law, Sec. 504. The orderly administration of justice requires that the fatal defect of failure of jurisdiction of subject matter be noticed wherever found for this is an essential ingredient of any act by any court. Particularly is this so where there is involved a penal statute which must require a strict construction. In this connection it is worthy of note that in Smith v. State, 75 Fla. 468, 78 So. 530, it is held that the word “convicted”, as used in the statute denouncing the sale of intoxicating liquors as a second offense in a county which had voted against the sale of such liquors, meant adjudication by a court of competent jurisdiction of the defendant’s guilt. Although the provisions of Section 57(g), supra, defining what shall constitute an offense are rather broad, yet, as here, where the purported conviction for a prior offense is a nullity and void, it cannot be considered for the purpose of making the crime here charged a third offense. An exhaustive discussion of cases wherein increased penalty is provided for subsequent offenses is found in 116 A. L. R. 209, supplementing 58 A. L. R. 20, and 82 A. L. R. 345.
¶8For the reasons cited above, appellant’s motion that he be re-sentenced in accordance with the provisions of Section 57(g)(2), supra, as .a second offender, should have been granted, since he had not prior to the instant conviction been *281convicted of a second offense as contemplated by the statute; and the sentence herein imposed is erroneous.
¶9The conviction of appellant herein should be affirmed, the sentence imposed set aside, and the case remanded to the Spartanburg County Court for re-sentencing within the limits of the statute as respects a conviction for a second offense.