22 S.D. 475 | S.D. | 1908
This is an appeal by the plaintiffs from an order of the circuit court refusing to issue a mandamus to- the police magistrate of the city of Huron commanding him to transmit to said circuit court the record, pleadings, and documents connected with a certain action theretofore tried and determined by the said police magistrate in which the plantiffs herein were defendants and to allow an appeal to be taken therein. It is alleged, in substance, in the affidavit of the plaintiffs presented to the circuit court, that the plaintiffs were arrested upon a complaint and warrant issued by the defendant as police magistrate of the city of Huron charging them with the crime of keeping a house of ill fame in that city; that the plaintiffs being arraigned, and pleading not guilty to the charge, they demanded a jury trial, which was granted, and upon such trial they were found guilty and adjudged to pay a fine by the court; that immediately upon the entering of said judgment these plaintiffs gave notice that they appealed from said judgment, and the whole thereof, to the circuit court, and immediately thereafter and within the time allowed by law tendered a bond in the penal sum of $200 with good and sufficient security to perfect said appeal; that said appeal was denied by the said justice, and the bond so offered rejected by him; that said magistrate still refuses to permit said appeal, and refuses to transmit to said circuit court the record in said action. Wherefore the plaintiffs ask that a peremptory writ of mandamus be issued to the said defendant as po lice magistrate commanding him forthwith to transmit said proceeding to the circuit court.
To the affidavit of the plaintiffs the defendant filed an answer, alleging that the city of Huron is incorporated under special act
The contention of the respondents that the provision in effect denying the right of an appeal in a case decided in the police justice court of Huron by reason of its being a part of the original charter of the city of Huron granted to that city in 1883 has never been repealed or changed cannot be sustained; and the further contention of respondent that the special charter is in the nature of a contract that cannot be repealed by the state Legislature is equally untenable. The author of the article on Municipal Corporations in 28 Cyc. 272, 273, in discussing this question, says: “It is also a general rule that a municipal corporation can exercise 11O' power which is repugnant to the common or statute law of the state. * * * The municipality has such measure of power as the Legislature thinks it wise to grant for the public good, either by special charter or general laws. But this pow^r, not being protected from inpairment by the contract clause of the federal Constitution, is subject to the legislative will and discretion. The General Assembly has undoubted authority to prescribe the limits of municipal powers, and to add to or subtract from them at pleasure. Nor can its motives be questioned. The diminution or increase of power may be affected directly by an amendment of a special charter or the general law under which the corporation was organized. The corporate powers may also be diminished by a repeal of certain sections of the general law. This change may likewise be indirectly effected by the enactment of a law repugnant to charter provisions, whether special or general.” Bowyer v. Camden, 50 N. J. Law, 87, 11 Atl. 137; San Francisco v. Canavan, 42 Cal. 541; Philadelphia v. Fox, 64 Pa. 169; State v. Kolsem,
It will be observed that the charge against the plaintiffs made in the magistrate court was • that of keeping a house of ill fame. The keeping of such a house is made a crime by the Penal Code of this state by section 6571 (Comp. Laws 1887), which provides: “Every person who keeps any bawdyhouse, house of ill fame, * * * is guilty of a misdemeanor.” Assuming for the purposes of this decision, that it was competent for the city of Huron by ordinance to make the keeping of a house of ill fame an offense under the city ordinance, the plaintiffs had the same right to appeal as they would have had, had they been tried and convicted under the state law. It cannot seriously be claimed that the city of Huron, by providing that certain acts which are made, crimes under the state law constitute the violation of an ordinace and trying the party under the ordinance, deprives him of his right of appeal. Where the city hais assumed to pass an ordinance making a certain act punishable as a violation of the city ordinance which is made criminal by the state law, the provisions of the Constitution and the sreneral law of the state applies. In the present case the police magistrate of the city of Huron seems to be vested with the same powers as city justices of the peace in this class of cases.
It is further contended by the respondent that this case is ruled by the decision of this court in the case of the City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947, but the question now presented was not raised in that case, and that decision is not therefor applicable to the case at bar, and, as we understand that decision, there is nothing therein in conflict with our views in the present case. As to whether or not the provisions in the charter of the city of Huron limit an appeal in ordinary cases for a violation of a city ordinance we do not now decide as a decision upon that question is not necessary at-this time, and the views herein expressed are applicable only to cases -where a city ordinance has provided that an act shall constitute a violation of that ordinance which is also made criminal by the laws of the state.
Our conclusion, therefore, is that the provision in the charter of Huron in effect preventing an appeal of these plaintiffs is in con