157 P. 892 | Wyo. | 1916
This is a proceeding instituted in this court by the City of Sheridan by filing a petition for a writ of certiorari to review the action of the District Court in and for Sheridan County in a cause determined by said court on appeal from the municipal court of said city, wherein one S. P. Cadle, the defendant named in the petition, had been prosecuted in the municipal court for disorderly conduct in violation of a city ordinance, found guilty, and sentenced to pay a fine of five dollars and the costs assessed at $10.55, and in the district court on said appeal was adjudged not guilty and discharged. The petition alleges that after the taking of said appeal and the filing of the same with the papers in the cause in the office of the clerk of the district court the city filed a motion to dismiss the appeal and remand the cause to the municipal court for the execution of the sentence of that court, on the ground that the district court was without jurisdiction to entertain the appeal; that said motion was overruled and the city thereupon announced its intention to rely upon its exception to the overruling of said motion and declined to introduce any testimony; that said court proceeded to try the cause, found the defendant not guilty, and entered final judgment that the defendant be discharged, that his appeal bond he exonerated, and that he recover his costs from the city, to which the city at the time excepted. The prayer of the petition in substance is that the district court’s action upon the motion to dismiss the appeal be reviewed and reversed and the cause remanded to the municipal court for the execution of its said sentence, and to that end that a writ of certiorari be issued requiring the record in the cause to be certified to this court, that summons be issued to the
The cause has been heard on the petition for the writ, with the understanding that if the city’s contentions be sustained the writ shall issue, and the case disposed of accordingly, unless upon a further hearing after the return of the writ, should that be insisted upon, a different conclusion shall be reached respecting the substantive merits of the controversy. This course was taken following our request that briefs be submitted on the question of the power to issue the writ and the propriety thereof in this case, this appearing to be the first instance of an application to this court for review on certiorari. Briefs were submitted as requested by H. N. Gottlieb, city attorney, representing the petitioner, and F. W. Byrd, representing the defendant; the defendant’s brief covering the question of the jurisdiction of the district court on said appeal, as well as the authority of this court to issue the writ and the propriety of its issuance in this case. It appearing from the briefs that the facts to be shown by the record as stated in the petition were not disputed, we then suggested that the whole matter might be heard and considered upon the petition with the understanding above stated, and thus avoid the additional expense of bringing the record here if our conclusion should be against the petitioner upon grounds that would ultimately dispose of the case. A brief for the city on the' question of the district court’s jurisdiction to entertain the appeal was thereupon submitted by L. J. O’Marr, who had succeeded Mr. Gottlieb as city attorney.
The defendant does not contend that this court would be without authority to issue the writ of certiorari in a case of this kind, but opposes its issuance on other grounds. However, we would not feel justified in determining the other questions raised by the application without first inquiring
A similar territorial statute in Oklahoma was held by the Supreme Court of that state to be no longer in force because in conflict with a provision of the State Constitution granting the court power to issue the writ, like that found in the Constitution of this state; and the court further held that by such constitutional provision the writ was authorized as it exists at common law, as an aid to the Supreme Court in the exercise of its general superintending control over all inferior courts, boards and commissions, but to bring up the record for investigation and review as to jurisdictional errors only. (Baker v. Newton, 22 Okl. 658, 98 Pac. 931; Palmer v. Harris, 23 Okl. 500, 101 Pac. 852, 138 Am. St. Rep. 822.) But it is unnecessary in this, case to consider the present effect of said statute abolishing the writ in civil cases, and we shall not attempt to decide that question, for this is not a civil case. Although it was held in Jenkins v. City of Cheyenne, 1 Wyo. 289, that a prosecution for the violation of a city ordinance was a civil action, that decision was based upon a statutory definition of civil and criminal actions not now found in the statutes. But under the stat
The writ of certiorari is a common law writ, and under the power conferred as aforesaid by the Constitution we
The principal objections urged against the use of the writ in this case may be summarized as follows: (1) That if the appeal to the district court was not'authorized the judgment of that court is void, leaving the judgment of the municipal court unimpaired with the right of the city to proceed thereunder by causing the imprisonment of the defendant upon his failure to pay the fine assessed against him; and that certiorari will not lie to review a void judgment. (2) That the city might have applied for a writ of prohibition when the appeal was taken, and that there was therefore an adequate remedy sufficient to authorize the denial of the writ now applied for. (3) That the district court had jurisdiction of the appeal. The writ of certiorari is not one of right, but its issuance is discretionary with the court, though such discretion should not be exercised arbitrarily or capriciously; and the writ will not as a rule be granted where other adequate remedies are open to the petitioner-. Although an unquestionable ground for the writ is the want of jurisdiction in the proceeding sought to be reviewed, it is said that as a rule the writ will not lie where the proceedings or determination are absolutely null and void. (6 Cyc. 761.) But it is also said that the question has been variously decided in the different states, and that the doctrine in several of the states is that, although a reversal of void proceedings by certiorari is not essential, yet since one of
The writ of prohibition, like that of certiorari, is discretionary and not one of right, and we cannot regard it in this case as having afforded the petitioner a sufficiently adequate remedy. Although the papers on the appeal were filed in the district court on June 4, 1915, no action appears to have been taken thereon by that court until the motion to dismiss was heard and denied on June 30, 1915, and thereupon the case'was set down for immediate trial, and was tried on
The jurisdiction of the district court in the case at bar and similar cases depends upon the construction of two sections of the statute providing for appeals from police justices or municipal courts. The city’s contention is based upon the provisions of Section 1753, Compiled Statutes, 1910, found in the'general law for the government of cities of the first class, under which the City of Sheridan is organized. That section provides: v
*303 “In all cases before the police justice arising under ordinances of the city, wherein the fine assessed exceeds the sum of ten dollars or the imprisonment ten days, an appeal may be taken by the defendant to the district -court in and for the county in which said city is situated, but no appeal shall be allowed unless such defendant shall, within ten days, enter into recognizance with sufficient sureties to be approved by the justice, conditioned for the payment of the fine and costs of appeal, and that defendant shall abide the judgment of the said court and not depart without leave of the same, or that he will pay to the-said city of.the sum of, '$. The procedure o.f such appeal shall be as prescribed for appeals from courts of justices of the peace in criminal cases.” •
It was first enacted as a part of said general law in 1895, and then contained the above provision for appeals in cases wherein the fine exceeds ten dollars or the imprisonment ten days. The section was amended and re-enacted in 1907, but without any change in the provision allowing an appeal in the cases aforesaid.
The defendant relies upon Section 952, Compiled Statutes, 1910, found in a general law relating to municipal courts in cities and towns, enacted in 1905, and establishing a municipal court in a certain class of cities and towns, but by amendment of the first section (Sec. 949, Comp. Stat.) in 1909, in all cities and towns, for the trial of all offenses arising under ordinances, and providing that the judges of such courts shall be styled police justices. The appointment, term of office and compensation of such police justices was provided for, and in the section here relied on certain provisions as to procedure were made, as follows:
“The procedure of such municipal courts shall as nearly as possible conform to that provided by the general laws of the state in courts of the justice of the peace, but.such incorporated city or town may by ordinance provide such additional rules of procedure as may be found necessary for the proper conduct of such municipal courts; Provided,*304 That the same do not conflict with the general laws of the state and appeals to the district court from the judgments and decisions of said police justices shall be allowed, in all cases, such appeals to be taken in the manner now provided by law for appeals from justices of the peace.”
The changes made in the method of appeal by the 1907 amendment of the law governing cities of the first class are not here involved. The provisions of Section 1753 containing the amendment were followed in that respect, as we understand the petition, and it is not contended that there was any irregularity in the manner of taking or perfecting the appeal. The statutory provisions aforesaid allowing an appeal must be considered in connection with the constitutional provision that “appeals shall lie from the decisions of justices of the peace and police magistrates in such cases and pursuant to such regulations as may be prescribed by law.” (Art. V, Sec. 23.)
No doubt if Section 1753 contained the only provision on the subject, no appeal would be allowed in cases wherein the fine assessed does not exceed ten dollars or the imprisonment ten days, but that would result not because the statute expressly so declares, but because it allows an appeal only in cases wherein the fine exceeds the sum or the imprisonment the period specified. B'ut that section does not stand alone, nor is it, in our opinion, in conflict with Section 952, which allows an appeal in all cases. It differs only in failing to provide for all the cases provided for in the latter section. The provision of each section is affirmative. Each declares the right of appeal; the affirmative declaration in one covering certain specified cases, and in the other including all •cases. We do not think it can reasonably be held that the re-enactment in 1907 of the provision found in Section 1753 operated as an implied repeal of the provision of Section 952 on the same subject. (Sutherland on Statutory Construction, Sec. 202.)
Our conclusion is that the district court had jurisdiction of the appeal, and the writ will therefore be denied.