In re Jahn
55 Kan. 694
Kan.
1895
Check Treatment

The opinion of the court was delivered by

Martin, 0. J. :

The petitioner was convicted in the police court of the city of Lincoln Centre upon three counts for violation' of ordinance No. 139, and upon two counts for violation of ordinance No. 113 of said city, which is of the third class. Ordinance No. 139 makes it unlawful for any рerson to barter, sell or give away any malt, hop-tea tonic, ginger ale, cider or other drink of like nature in less quantities than one gаllon, or to permit or allow the same to be drank at any store or other place of sale. Ordinance No. 113 declares it unlawful for any person, other than a druggist having a permit, to sell or barter any intoxi-*696eating liquors. The petitioner denied the right of the court to try him undеr either ordinance, claiming that both are invalid, but this contention was overruled. He next demanded a trial by jury, but this was refused. He was then tried by the court, and found guilty upon each count, and was adjudged to pay fines amounting ‍​​‌‌​‌​​‌​‌‌​‌‌​​​‌‌​​‌‌​​​‌‌​​‌‌​​​​​​‌​‌‌‌‌‌‌​‍to $200, besides $95.40 costs, and he was committed to jail until the fine and costs should be paid. The court fixed the appeal bond at $500. Afterwards the petitioner made a showing to the court of his inability to give аn appeal bond, and he asked to be discharged from imprisonment, but this was refused.

I. The petititioner claims that said ordinance No. 139 is void ; but in Monroe v. City of Lawrence, 44 Kas. 607, this court decided that an ordinance of the city of Lawrence of the same general nature ‍​​‌‌​‌​​‌​‌‌​‌‌​​​‌‌​​‌‌​​​‌‌​​‌‌​​​​​​‌​‌‌‌‌‌‌​‍was valid. The reasoning in that cаse is applicable here, and we consider it controlling.

II. The petitioner further contends that said ordinance No. 113 is invalid on the grоund that the sale of intoxicating liquors is regulated by the laws of the state, and any unlawful sale thereof, or the keeping of any place for carrying on such sales, is punishable under said laws and not under city ordinances covering the same subject. If this question were new, we might think the рosition of' counsel for petitioner a strong one, but under the old dram-shop act,'as well as the prohibitory amendment and the laws mаde in pursuance thereof, it has been held that the state may confer upon municipalities the right to punish, in pursuance of their ordinances, illegal sales of intoxicating liquors or the keeping of any place for conducting such business within their limits. ( City of Emporia v. Volmer, 12 Kas. 633 ; City of Salina v. Seitz, *69716 id. 143 ; The State v. Young, 17 id. 414 ; Franklin v Westfall, 27 id. 614; City of Topeka v. Myers, 34 id. 500; Junction City v. Keeffe, 40 id. 275, 279, 280.) And many decisions in other states are in accord with the foregoing. ‍​​‌‌​‌​​‌​‌‌​‌‌​​​‌‌​​‌‌​​​‌‌​​‌‌​​​​​​‌​‌‌‌‌‌‌​‍Tested by these authorities, we think that ordinance No. 113 is valid.

III. The next claim of the petitioner is that he was entitled to a jury in the police court, especially upon the charges under ordinance No. 113, for unlawfully selling intoxicating liquors аnd keeping a place where such liquors were unlawfully sold. A distinction has always been taken between offenses against mere municiрal regulations and those which are made penal by the laws of the state because of their supposed evil consequences to society; the courts holding that the former might be punished summarily by proceedings in the municipal court, while as to the latter the defendant is entitled to a trial by jury. In Neitzel v. City of Concordia, 14 Kas. 446, this court held that a prosecution in the police court for selling liquor without a license contrary to the оrdinance of the city was criminal in its nature, and after a trial on appeal by the district court could only be brought here by appеal. The complaint against the petitioner for the sale of intoxicating liquors must, we think, be treated as criminal in its character, and under § 5 of the bill of rights, declaring that “the right of trial ‍​​‌‌​‌​​‌​‌‌​‌‌​​​‌‌​​‌‌​​​‌‌​​‌‌​​​​​​‌​‌‌‌‌‌‌​‍by jury shall be inviolate,” he is entitled to a trial by jury. But it was long ago settled by this court that, where a statute authorizes a trial before a municipal court without a jury for a violation of a city ordinance, and at the same time secures to the defendant an appeal therefrom, clogged by no unreasonable restrictions, to an appellate court in which he hаs a right to a trial by jury, such summary proceeding is not in conflict *698with said. § 5 of the bill of rights. (City of Emporia v. Vohmer, 12 Kas. 622; In re Rolfs, 30 id. 758.) And this position has been established by other courts, although the supreme court оf the United States takes a different view of the subject under a somewhat similar provision of the federal constitution. (1 Dill. Mun. Corp. [4th ed.], § 439 [original § 367], and cases cited.) The petitioner claims, however, that he is not allowed an appeal “clogged by no unreasonable restrictions,” because, under ¶ 1010, General Statutes of 1889, he cannot appeal without entering into recognizance with good and sufficiеnt surety conditioned for his personal appearance before the district court on the first day of the next term, “and for the pаyment of such fine and costs as shall be imposed on him if the case shall be determined against the appellant.”

In McInerney v. City of Denver, 17 Colo. 302, it was held that such a provision as the foregoing, coupled with a further condition that the defendant must pay all costs accrued in the police court before the appeal should be perfected, constituted unreasonable restrictions upon the right of appeal; and we think it unreasonable to impose the condition for the payment of the fine and. costs if the case should be determined against the appellant, and that the recognizance should provide for nothing more than the appearance ‍​​‌‌​‌​​‌​‌‌​‌‌​​​‌‌​​‌‌​​​‌‌​​‌‌​​​​​​‌​‌‌‌‌‌‌​‍of the appellant before the district court of the county on the first day of the next term thereof, which, of course, implies that he will remain until his case is called and disposed of. Almost any man can obtain security for his appearance in a case where he is charged оnly with a misdemeanor, but it is very different when a neighbor is asked to become security for the payment of a fine, even upon a contingency, after it has been once imposed. We think that the *699provision in said ¶ 1010 for the payment of such fine and costs as shall be imposed is inсonsistent with the constitutional guaranty that the right of trial by jury shall be inviolate, and, therefore, we hold this clause of said paragraph to bе inoperative and void. If the petitioner had tendered a recognizance, with good and sufficient surety for his appearanсe, we think it would have been the duty of the police judge to have accepted and approved the same.

IV. The petitiоner claims that he was unable to give any security by reason of his poverty, and urges that he should be discharged for this reason, but he does nоt cite any authority in support of this proposition, and we know of none. Such a doctrine is too dangerous to be entertained.

Thе order of the court is that the petitioner be remanded to the custody of the respondent, but on entering into recognizance in the sum of $500 within 10 days, with good and sufficient security to be approved by the police judge, conditioned for the personal appearance of the appellant before the district court of the county on the first day of the next term thereof, he will be discharged from imprisonment.

All the Justices concurring.