141 P. 831 | Cal. Ct. App. | 1914
The questions involved in this case arise upon the application of Ella Clark for a writ of habeas corpus, alleging the unlawfulness of her confinement in the county jail of Fresno County. The undisputed facts of the case are set forth in the petitioner's application for the writ, and are substantially these: The city of Sanger is a municipal corporation of the sixth class, and has been organized and exists as such under the provisions of the Municipal Incorporation Act of the state of California applicable to cities of its class. [Stats. 1883, p. 269.] Subdivision 1 of section 862 of that act empowers such cities "to pass ordinances not in conflict with the constitution and laws of this state or of the United States." By subdivision 14 of the same section such cities are empowered "to impose fines, penalties and forfeitures for any and all violations of ordinances; to fix the penalty at fine or imprisonment or both; but no such fine shall exceed $300, nor the term of imprisonment exceed three months." By section 867 of the same act it is provided that "The violation of any ordinance of such city or town shall be deemed a misdemeanor, and may be prosecuted by the authorities of such city or town in the name of the People of the State of California, or may be redressed by civil action at the option of such authorities." The city of Sanger, assuming to be acting under the foregoing provisions of the Municipal Incorporation Act, passed an ordinance for police regulation relating to the sale of intoxicating liquors, and kindred subjects, by the terms of which the sale of intoxicating liquors in the city of Sanger was declared to be unlawful, and the specific penalty of forty dollars was imposed for the breach thereof, which penalty it was provided should be recoverable in a civil action against the violator of the ordinance, which action the city of Sanger was authorized and empowered to maintain and prosecute in its own name. The ordinance further provided that "Whenever judgment is given and entered in any such action in favor of the city of Sanger for the recovery of the amount of such penalty and costs, the same may be enforced by execution, as provided in section 684 of the Code of Civil Procedure of the *391 state of California, which section of said code is hereby adopted in so far as the same is applicable; and if the judgment in any such action direct that the defendant therein be arrested, execution may issue against the person of such judgment debtor after the return of execution against his property unsatisfied in whole or in part, and require the officer to whom the same is directed to arrest such judgment debtor and commit him to the county jail of Fresno County, state of California, until he pay such judgment according to the terms thereof or be discharged according to law."
On the eleventh day of October, 1913, the city of Sanger commenced six actions each entitled "The City of Sanger, a municipal corporation, Plaintiff, versus Ella Clark, Defendant," in the recorder's court of said city. The complaint in each of said actions set forth an alleged violation of the terms of the foregoing ordinance and consequent liability of the defendant to the penalty of forty dollars in each case prescribed therein; a summons in each case in the usual form of process in civil actions was issued and duly served upon the defendant in the way provided for the service of civil process. The defendant in due time appeared and entered a general denial in each case, and a trial in each, apparently in the usual form of a civil trial, was had before the court, at the conclusion of which the court took the several cases under advisement, and on the following day rendered its judgment against the defendant in each case in the following form: "That plaintiff do have and recover the sum of forty dollars and costs, taxed at $17.50, from the defendant Ella Clark; and that execution for said amount and costs issue according to law; and that in the event said execution is returned unsatisfied I do direct that the city marshal or other authorized officer arrest this defendant Ella Clark, and commit her to the county jail in the county of Fresno and to the custody of the sheriff of said county, until she pay the penalty of forty dollars hereby adjudged to be due the plaintiff, or is discharged according to law." Upon each of these judgments a civil execution was issued and was presently returned unsatisfied; and thereupon the recorder rendered and entered in each case a further judgment in the following words: "Execution in this action having been regularly returned wholly unsatisfied it is by this court ordered and adjudged, as a punishment for the *392 offense committed at the city of Sanger, county of Fresno, on September 10, 1913, as above set out, that said defendant Ella Clark be committed to the county jail in the county of Fresno and to the custody of the sheriff of said county for the period of forty days, unless she sooner pay said penalty or the part remaining to be paid at the time payment is made, or otherwise discharged according to law." Thereupon a commitment was issued by the court in the first of these cases, and delivered to the sheriff of the county of Fresno, who, acting thereunder, arrested the petitioner and imprisoned her in the county jail; from which arrest and imprisonment she now seeks to be relieved through her application for this writ. The commitments in the other five cases were also delivered to the sheriff, who holds the same subject to execution in their order upon the person of the defendant.
The chief contention of the petitioner herein is that her arrest and imprisonment are illegal for the reason that she has been proceeded against and is being imprisoned in a civil action not involving fraud or a willful tort, or a militia fine in time of peace; but which, though civil in form is criminal in nature because solely involving the imposition of a penalty for the commission of a misdemeanor; which proceedings, the petitioner contends, were instituted and conducted by the city of Sanger in its own name and in the form and with the process of civil actions, in violation of the provisions of the constitution, and the laws of the state passed thereunder, regulating the prosecution of persons for crimes.
Section 20 of article VI of the state constitution provides that "The style of all process shall be 'The People of the State of California,' and all prosecutions shall be in their name and by their authority." The Penal Code provides that "Crimes are divided into felonies and misdemeanors" (sec. 16), and further provides that "A criminal action is prosecuted in the name of the people of the state of California as a party against the persons charged with the offense." (Sec. 684) The supreme court of California has construed the foregoing provisions of the constitution in several cases, and in relation to several different forms of proceeding, having for their ultimate consequence the imposition of a penalty in the form of imprisonment or other punishment involving disgrace. In the case of City of Santa Barbara v. Sherman, *393
Counsel for the respondent has urged that the same provision is to be found in the state constitution of Iowa, and which has been construed by the supreme court of that state to apply only to prosecutions before the higher tribunals referred to in the article of the constitution of that state wherein the provision occurs, and hence not to be applicable to proceedings in inferior courts arising out of the violation of municipal ordinances. The supreme court of this state has not caught this distinction; nor do we think that there is reason for its application to this provision of our state constitution; for the article therein which embraces this section refers to the judicial power of the state as vested not only in its courts of general jurisdiction, but also "in such inferior courts as the legislature may establish in any incorporated city or town." (Const., art. VI, sec. 1.) In this connection also it is urged by the respondent that the offense for which the defendant has been prosecuted is not such a public offense as to entitle it to the application of this section of the constitution for two reasons: 1. Because it comes within that class of minor infractions of ordinances which are denoted in the decisions of several states as "quasi criminal"; and, 2. Because it is not an offense against the public generally, but only an infraction of the special enactment of the city of Sanger in the enforcement of which that municipality alone is interested.
As to the first of these refinements it may be said that no such intermediate grade between civil and criminal breaches of legal obligations is known to our law. Section
This view of the chief question at issue renders unnecessary a consideration of the other question presented by petitioner, relating to the concurrent operation of the five other judgments and commitments obtained in the similar and simultaneous cases brought against the defendant under the terms of the ordinance under review.
For the reasons stated the petitioner is discharged from custody.
Lennon, P. J., and Kerrigan, J., concurred. *396