35 Ill. App. 57 | Ill. App. Ct. | 1889
See. 84 of the City and Village Act declares that policemen in cities shall be conservators of the peace, and shall have power to arrest with or without process, all persons who break the peace, or are found violating any ordinance of the city or any criminal law of the State, and if necessary, detain such persons in custody over night or Sunday, or until they can be brought before the proper magistrate. Starr & Curtis’ Ill. Stats. 479.
Sec. 278 of said act provides that in all actions for the violation of any ordinance of any city the first process shall be a summons, provided, however, that a warrant for the arrest of the offender may issue, in the first instance, upon the affidavit of any person that any such ordinance has been violated, and that the person making the complaint has reasonaffie grounds to believe the party charged is guilty thereof; and any person arrested upon such warrant shall, without unnecessary delay, be taken before the proper officer to be tried for the alleged offense.
The proceeding must be in the corporate name of the city, and is a civil action, in form, debt, and governed in all respects by the rules of procedure in civil cases. Israel v. Jacksonville, 1 Scam. 290 ; Town of Lewiston v. Proctor, 27 Ill. 414; Town of Havana v. Biggs, 58 Ill. 483; Town of Partridge v. Snyder, 78 Ill. 519; Webster v. The People, 14 Ill. 365.
It is not contended here that if this action had been commenced before the justice, by summons, any complaint or other form of pleading would have been necessary; but the argument seems to be that because there was an arrest of the defendant, the case took in some part a criminal form, and that a failure to file an affidavit or complaint showing probable cause and stating the nature of the accusation, deprived" the justice of jurisdiction to hear the evidence and render judgment. Even if a complaint were required to be filed in criminal proceedings where the arrest was on view (on which question we express no opinion), no analogy would be furnished which would require a complaint or other written pleading in a civil proceeding to recover a fine or penalty for breach of a city ordinance where the offender was arrested on view. The fact that 'there is an arrest either by warrant or on view, does not change the proceeding from a civil to a criminal one. The justice has jurisdiction of the subject-matter by law, and if the offender is brought before him by an arrest on warrant, or by an arrest made on view, or by the service of a summons, he will have jurisdiction of the parties, and may proceed to the trial and determination of the case.
True, an affidavit or complaint is necessary to authorize the issuing of a warrant, but such affidavit or complaint is not the foundation of the justice’s jurisdiction to hear the case and render judgment therein, for he might hear just the same case and render the same judgment where the action was commenced by summons, and where no affidavit or complaint or written charge of any kind was filed. In other words, by whatever means the justice obtains jurisdiction of the defendant, whether by arrest on warrant, arrest on view, or by service of summons, the practice and proceedings before the justice are to be the same as in any other civil suit. It was said by the Supreme Court in Ewbanks v. Town of Ashley, 36 Ill. 177, where a warrant for the arrest of a defendant for violation of an ordinance was issued by a justice of the peace without any complaint or affidavit being tiled, “ when the jurisdiction is conferred upon justices of the peace in such cases, it follows that it must be held to authorize them to proceed as in any other cases. It then results, as a part of their jurisdiction, that they may hear such cases without complaint.” The warrant in Said case was served as a summons, but we are unable to perceive how that makes any difference as to the principle decided. The fact that no complaint is necessary in a proceeding before a justice to recover for the violation of an ordinance was also held in Town of Jacksonville v. Block, 36 Ill. 507.
It appears from the transcript of the justice set out in the statement of facts, that the defendant was arrested while committing the offense; that the action was debt for a penalty for disorderly conduct in violation of Section 1624 Bevised Ordinances; that the defendant pleaded not guilty; that the witnesses were sworn and testified; that the court being fully-advised, finds the defendant guilty of the charge and assesses the penalty or fine against him. This states with reasonable certainty an offense against the ordinance, and one of which the justice had jurisdiction. As it is admitted that it was lawful to bring defendant into court by arrest on view, it is difficult to conceive what the justice’s record lacks of showing a regular proceeding and valid judgment, unless we reverse the holding of the Supreme Court, and say that a complaint or some other written pleading is necessary to sustain the jurisdiction of a justice of the peace in an action to recover a penalty or fine under an ordinance. But if the proceeding before the justice had been in fact irregular, by reason of a failure to file a complaint, or a sufficient one, such fact would not warrant the judgment of the Criminal Court in dismissing the action .on motion.
The appeal brought all the parties before the Criminal Court, and it was the duty of that court to hear and determine the matter on its merits. The appeal is not to correct some error of law, but it is to obtain a trial de novo, and the court had no power to determine whether the justice had jurisdiction of the subject-matter until the evidence was heard. “ It is well settled in this court that no advantage can be taken in the Circuit Court of any irregularity in the process issuing from a justice of the peace or its service. * "* * The only requisite is jurisdiction in a justice of the peace; for aught that appears he had jurisdiction in this case, and the suit should not have been dismissed.” City of Alton v. Kirsch, 68 Ill. 261.
In that case the Circuit Court dismissed the suit on the appeal for the reason that the complaint filed before the justice appeared to be defective; but the Supreme Court said, the complaint in writing not being necessary, one defective in unimportant particular could not deprive the Circuit Court of the power to hear and determine the cáse on the facts, as they might be established in that court: and in Town of Jacksonville v. Block, supi'a, it was said .that “no exception was allowable in the Circuit Court as to the form or service of the writ, nor to any proceedings before the justice. The duty of that court was to hear and determine the cause in a summary manner, according to its merits.” See also Byars v. City of Mount Vernon, 77 Ill. 467.
Tiie argument of the counsel, that this can not be treated as a civil proceeding because, in order to sustain it as such, the provision of our constitution forbidding imprisonment for debt would be violated, is without force. The debts intended to be embraced in that clause are those arising ex contractu. It does not include fines or penalties arising from violation of penal laws. Kennedy v. The People, 122 Ill. 649, and cases there cited. The committal of the defendant until the fine is paid, is necessary in such cases, and the power to do so indispensable to the safety of society, the preservation of good order and the enforcement of the ordinances. Ex parte Bollig, 31 Ill. 88.
We have carefully examined all the cases cited by counsel for appellee, some of which seem to have been relied on by the learned judge who decided this case in the Criminal Court. Tracy v. Williams, 4 Conn., was a criminal examination, and was decided on a distinction between the requirement of the Connecticut statutes and common law. So far as the case purports to go on general principles, it is contra to Lancaster v. Lane, 19 Ill. 242. There, Lancaster the justice, was sued as a trespasser for issuing an execution on which a sale was made, The execution was issued to collect a fine which had been imposed by the justice. The docket of the justice was introduced in evidence, and so far as related to jurisdiction, it recited that: “ The fite was willingy fit in view of the justice. The justice imposed a fine of $5 each, giving no rite of evidence or jury.” The Supreme Court held that the justice was entitled to be tried by liis docket; that it showed a case properly docketed, and that the offense was committed in view of the magistrate. “The offender was in court, and therefore no warrant was necessary to bring him to court. * * * Being in custody of the officer and in court, and the court having jurisdiction of his person as well as of the offense, the magistrate could exercise the jurisdiction to the fullest extent by trying him.” In Mayor of Newark v. Murphy, 11 Vroom, 145, the officer making the arrest had no authority under the law to arrest for the violation of ordinances, and the same is true of the case of Clark v. New Brunswick, 14 Vroom, 175. It is unnecessary to examine all the cases cited in detail. It is enough to say that they are all easily distinguishable from this case.
The judgment must be reversed and the case remanded to the Criminal Court for further proceedings in accordance with the law as here stated.
Reversed and remanded.
