167 Mo. 667 | Mo. | 1902
This is an appeal from a judgment of the circuit court of Jackson county, discharging a preliminary rule in prohibition theretofore issued by that court.
This court has jurisdiction of this appeal because j;he protection of the Constitution of this State and of the United States was invoked by the plaintiff in the lower court, and alleged to have been denied to him by the decision of that court.
The case made is this: The plaintiff was arrested by the police for disturbance of the peace and for being drunk on the streets in Kansas City, and was put upon trial before the police court of that city. He demanded a trial by jury, which was refused him. He thereupon obtained from the circuit court of that county a preliminary rule in prohibition against the police court, and the judge and prosecuting attorney of that court, upon the ground that under the charter and ordinances of that city he was entitled to a trial by jury, and also that under the Constitution of this State (secs. 22 and 28 of art. 2) he was entitled to a trial by jury, and also that under the fourteenth amendment to the Constitution of the United States and under section 30 of article 2 of the Constitution of Missouri,
The gist of this contention is this: Under the charter of Nansas City adopted in 1875, and under sections. 891 and 892 of the Revised Ordinances of Nansas Oity 1888 (being ordinance number 41982) a jury trial before the city recorder, as the court was then called (police court, as it is now called), was permitted to any person charged with a violation of a municipal regulation before said recorder or court, and that the new charter, adopted in 1889, expressly continued in force all ordinances in. force at the date of its adoption, until repealed by the common council, and that the ordinances in reference to such jury trial have not been repealed. On the contrary, the defendants show that the charter of 1889 creates the police court, provides for a police judge, who shall be ex officio a justice of the peace, and confers exclusive jurisdiction upon such court over all cases arising un'der any ordinance of the city, except suits for taxes due the city, and provides for appeals from him as police judge to the criminal court of Jackson county, and appeals from him as justice of the peace to the circuit court as in cases of appeals from other justices of the peace in civil cases. The defendants also show that the Revised Ordinances of 1888 (containing sections 891 and 892 aforesaid, providing for a jury trial) being ordinance 41982, was repealed and superseded by the Revised Ordinance of 1898, being ordinance 9258, and that a jury trial is not permitted under the present ordinance, but that, on the contrary, under section 699, Revised Ordinance 1898, the police judge now determines the guilt or innocence of the accused and fixes the punishment. The defendants further show that sections 891 and 892 of the Revised Ordinance of 1888, which was continued in force by the charter of 1889 until repealed by the common council, was repealed by section 1274 of .the Revised Ordinance of 1898, which is as follows:
“Sec. 1274. Repealing Clause. — All ordinances and*675 parts of ordinances of a general nature, not herein contained are hereby repealed, but in construing this provision no ordinance granting any right or privilege therein mentioned to individuals, firms or corporations, or fixing the salary, wages or compensation, or authorizing the appointment or employment of any officer or employee of the city, shall be held to be a general ordinance.”
The defendants further contend that even if sections 891 and 892 of the Revised Ordinances of 1888 were still in force, the plaintiff has not shown himself entitled to a jury trial, because he has not deposited or offered to deposit with the clerk of said court “a sum sufficient to pay the fees of such jury,” as those sections of the ordinance of 1888 required to be done when the jury was demanded.
Upon this showing, the circuit court discharged the preliminary rule in prohibition, and the plaintiff appealed to this court.
I.
If all the plaintiff contends for be conceded, he can not maintain this action. Eor the same ordinance provisions that he relies on as guaranteeing him a trial by jury, also require him to deposit with the clerk of the police court, at the time he demands a jury, “a sum sufficient to pay the fees of such jury,” and this the plaintiff does not allege or even pretend that he did. Hence, he has failed to bring himself within the provisions of the ordinance he relies on.
II.
But it is not true that the charter and ordinances of Kansas City, that were in force on August 18, 1899, when the plaintiff was arrested, give any right of trial by jury in cases arising upon a violation of municipal police regulations.
The charter of 1875 was superseded by the charter of
The Revised Ordinance of 1898 revised the subject of trials for violation of municipal police regulations and adopted a different policy and procedure from that provided by the revised ordinance of 1888, and by so doing, repealed the old ordinance provisions, even if section 1274 had not expressly done so. [Meriwether v. Love, 167 Mo. 514; Endlich on Inter. Stat., secs. 201 and 202; State v. Roller, 77 Mo. 120; State to use v. Hickman, 84 Mo. l. c. 79; State ex rel. v. Wardell, 153 Mo. l. c. 325.]
This is manifestly true in this case, because it could not be that it was intended to leave in force two ordinances of a general nature under one of which a jury trial was authorized and guaranteed, and under the other no such right was conferred, but on the contrary, the power was conferred exclusively upon the judge to find the guilt or innocence of the accused and to assess the punishment.
m.
The plaintiff here, apparently for the first time, contends, however, that even under section 699, Revised Ordinance 1898, he is entitled to a trial by jury. He works out this contention by taking the first sentence of that section, which provides: “All cases triable before such judge shall be proceeded with in the same manner as trials before justices of the peace for misdemeanors,” and by showing that by sections 2769 et
' Such contention is disingenuous. It ignores the remaining provisions of section 699, Revised Ordinance 1898. That section is as follows:
“Sec. 699. Proceedings. — All cases triable before such judge shall be proceeded with in the same manner as trials before justices of the peace for misdemeanors. If the police judge shall find the defendant guilty, said judge shall fix the punishment according to law, and the judgment shall be for fine assessed together with costs and commitment, either or both as may be required. If the finding be that defendant is not guilty, the judgment shall be for the defendant; such judgment shall be entered on jhe. record of said court.”
When read in its entirety, it is too plain to admit of serious controversy that no right of trial by jury is conferred by this section, and that it does not contemplate a reference to or adoption of the state statutes in reference to the right to a jury trial in such cases. Eor if the judge is alone empowered to pass upon the guilt or innocence and to assess the punishment of the accused, the jury would have no function to perform, and, hence, would be a perfectly superflous adjunct.
IV.
Neither the Constitution of Missouri nor the Constitution of the United States guarantees.to a person charged with a violation of a mere municipal police regulation, the right of trial by jury. Nor is such a right guaranteed or involved in section 30 of article 2 of the State Constitution or in the fourteenth amendment to the Constitution of the United States, which prohibit any person to be deprived of life, liberty or property without due process of law. [Walker v. Sauvinet, 92 U. S. 90.] “Due process of law” does not necessarily mean
Violations of municipal police regulations are not crimes within the meaning of that term as used in the Constitution. [Stevens v. Kansas City, 146 Mo. 460; State ex rel. Kansas City v. Renick, 157 Mo. 292.]
Being mere prosecutions to recover a penalty for a violation of a city ordinance, “an arraignment and plea are unnecessary, since such a proceeding is not a criminal prosecution.” [City of Lexington v. Curtin, 69 Mo. 626; St. Louis v. Knox, 74 Mo. 79.]
Ever since St. Louis v. Smith, 10 Mo. 439, such prosecutions have been treated by this court as civil in nature, although somewhat criminal in respect to some of the prescribed procedure. [Kansas City v. Clark, 68 Mo. l. c. 589; Ex parte Hollwedell, 74 Mo. l. c. 400; St. Louis v. Knox, 74 Mo. 79; St. Louis v. Weitzel, 130 Mo. l. c. 612; City of Gallatin v. Tarwater, 143 Mo. l. c. 46; Stevens v. Kansas City, 146 Mo. 460; State ex rel. v. Renick, 157 Mo. 292; State v. Muir, 164 Mo. 610.]
This being true, such prosecutions may be, in fact to be effective must be, summary. [Hill v. Dalton, 72 Ga. 314; United States v. Green, 19 D. C. 230.]
And where the act charged is a mere violation of a municipal police regulation and not a matter embraced in the public criminal statutes of the State, a trial by jury is not a constitutional right of the defendant in such a case. [1 Dillon on Mun. Corp. (4 Ed.), secs. 432-433; 2 Beach on Public Corp., sec. 1284.]
Aside from all this, the right of trial by jury for violation of mere municipal police regulations is not and never was contemplated by the Constitution of this State. [Vaughn v. Scade, 30 Mo. l. c: 604; Callan v. Wilson, 127 U. S. 540; 6
Y.
In addition to all that has so far been said, this proceeding must fail because no proper case for a writ of prohibition is presented by this record.
Even if all the plaintiff contends for be conceded, it would amount only to error, which could only be corrected by appeal. The jurisdiction of the police court to try cases for violation of municipal police regulations, leveled at disorderly conduct and drunkenness on the streets, is exclusive. Its procedure in the exercise of its jurisdiction may or may not be erroneous, but so long as it has jurisdiction, and acts within its jurisdiction, its rulings and proceedings can not be reviewed or corrected by means of a writ of prohibition, no matter how erroneous such rulings and proceedings may be. Mere error or irregularity or mistake, be it ever so manifest, which does not amount to an excess of jurisdiction, will not be ground for a prohibition. [Lloyd on Prohibition, p. 48; Shortt on Mand. and Prohib., marg. p. 436; 19 Am. and Eng. Ency. Law (1 Ed.), p. 263.]
A writ of prohibition “can not be made to perform the functions of an appeal, a writ of error, or a certiorari, its purpose being, not to correct errors, but to prevent a usurpation of jurisdiction.” [19 Am. and Eng. Ency. Law (1 Ed.), 265, and cases cited; Mastin v. Sloan, 98 Mo. 252; State ex rel. v. Railroad, 100 Mo. 59; State ex rel. Johnson v. Withrow. 108 Mo. l. c. 8; State ex rel. v. Ross, 136 Mo. l. c. 273; State ex rel. v. St Louis Court Appeals, 99 Mo. 219.]
Eor these reasons, the judgment of the circuit court discharging the preliminary rule in prohibition is, affirmed.
