Portland v. Erickson, 62 P. 753

Portland v. Erickson

62 P. 753 | Or. | 1900

Mr. Justice Wolverton

delivered the opinion.

1. This is an appeal from the judgment of the circuit court upon a writ of review to the municipal court of the City of Portland, whereby a judgment of acquittal in *6favor of the defendant upon a charge of violating Ordinance No. 7133 of said city was reversed and set aside, and the cause remanded, with directions to the municipal court to adjudge that he be fined or imprisoned under said ordinance. The facts were essentially stipulated in the municipal court, and upon these the defendant was adjudged not guilty. It is alleged in the petition for the writ that the judgment was so rendered because the court' was of the opinion that the ordinance under which the prosecution was instituted was void for want of power or authority in the city, under its charter, to adopt it. Whether this is so or not, can not affect the case, under the view we entertain of the proceeding. The defendant contends that, having been acquitted, he could not be again legally tried for the same offense, and that the action of the circuit court in ordering the cause to be remanded to the municipal court, with directions that he be adjudged to pay a fine, or that he be imprisoned, was in effect a retrial. This brings up the question whether the violation of the ordinance with which the defendant is charged is an offense, within the inhibition of the state constitution (Article I, § 12), which provides that “no person shall be put in jeopardy twice for the same offense.” This court held in Wong v. City of Astoria, 13 Or. 538 (11 Pac. 295), a case under a city ordinance, whereby the defendant was sentenced to pay a fine, and to be imprisoned in default of payment, that such an action was not a criminal prosecution, within the meaning of the state constitution, Article I, § .11, which accords to the accused the right of trial by jury. The holding is, however, by no means decisive of the present controversy. That decision was based upon the idea, promulgated in some other jurisdictions, that the proceeding must be regarded, as a civil action for the recovery of a fine, penalty, or forfeiture. While this may be proper-and regular, yet *7where, under the statute and ordinances, enforcement is sought. by resort to proceedings authorized and carried on in all respects as criminal cases are prosecuted — by complaint and warrant — and where the court is empowered to inflict upon the accused not only a fine, which may be followed by imprisonment for its nonpayment, but also imprisonment aside from any pecuniary penalty or forfeiture, such proceeding becomes so far criminal in its nature, and the violation of the ordinance such an offense, that a person acquitted thereof can not be again put in jeopardy for the same offense : Village of Northville v. Westfall, 75 Mich. 603 (42 N. W. 1068); People v. Vinton. 82 Mich. 39 (46 N. W. 31).

Ordinance No. 7133, under which the complaint is preferred, empowers the municipal court tó impose a fine upon the offender of not less than $25 nor more than $100, or to imprison him for a term of not less than ten nor more than forty days, and to cancel any license he may have to engage in business under the ordinance. Now, while the civil action may extend to an enforcement of the fine and forfeiture, yet, when the court is authorized to go beyond this, and imprison the accused, without affording an opportunity to discharge the judgment by pecuniary recompense, then there is the creation of such an offense as comes within the inhibition of the constitution. By section 62 of the city charter the municipal court is given “jurisdiction of all crimes defined by ordinances of the City of Portland, and of all actions brought to enforce or recover any forfeiture or penalty declared or given by any such ordinance ; ’•’ and by section 65 it is provided that “all proceedings before the court or judge thereof, including all proceedings for the violation of any city ordinance, are governed and regulated by the general laws of the state applicable to the justices of the peace, or justices’ courts in like or similar cases, except *8as in this act otherwise provided.” The procedure in the Justices’ Code is by complaint, which is deemed an indictment, and by warrant for the arrest and detention of the accused until tided : Hill’s Ann. Laws, §§ 2132-2135, inclusive. Under the charter, this becomes the procedure for the municipal court (Ex parte McGee, 33 Or. 165, 54 Pac. 1091), so that -we have here the precise conditions upon which Village of Northville v. Westfall, 75 Mich. 603 (42 N.W. 1068), and People v. Vinton, 82 Mich. 39 (46 N. W. 31), are founded ; and we are disposed to follow them, as they extend the protection of the constitution to all cases affecting the life, limb, or liberty of the person, according to its true intendment. It was “founded,” says Mr. Justice Nisbet in State v. Jones, 7 Ga. 422, “in the humanity of the law, and in a jealous watchfulness over the rights of the citizen when brought in unequal contest with the state.”

2. Having concluded that the violation of such an ordinance constitutes an offense within the meaning of the constitution, there exists a fatal objection, which is also urged, to the city prosecuting the writ of review to the circuit court. The Justices’ Code, which is made the procedure for the municipal court, in so far as it concerns a violation of the ordinances of the city, provides that “an appeal can only be'taken by the defendant,” (Hill’s Ann. Laws, § 2161,) thus depriving the state or the city of the right of appeal; and, if an appeal will not lie, neither will a writ of review, unless expressly given by the legislature. True, the statute providing for the writ is general in its terms, as witness the reading that ‘ ‘ any party to any process or proceeding before or by an inferior court, officer, or tribunal may have the decision or determination thereof reviewed ’’: Hill’s Ann. Laws, § 583. But this has never been construed as giv*9ing the state the right to review any proceeding in a criminal action. In United States v. Sanges, 144 U. S. 310, (12 Sup. Ct. 609,) Mr. Justice Gray asserts that “ Prom the time of Lord Piale to that of Chadwick's Case, just cited, the text-books, with hardly an exception, either assume or assert that the defendant or his representative is the only party who can have either a new trial or writ of error in a criminal case, and that a judgment in his favor is final and conclusive. * * * But,” he continues, “ whatever may have been or may be the law of England upon that question, it is settled by an overwhelming weight of American authority that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with the express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law.” The federal statute under discussion in that case was quite as general as our own allowing the writ of review. It provides that “appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court, * * * in any case that involves the construction or application of the Constitution of the United States”; and yet it was determined that the writ of error does not lie in behalf of the United States in a criminal case which involves a construction of the constitution.

3. There is a distinction, of course', between a writ of error and a writ of review, but the remedy afforded by the former is in the nature of that given by the latter (4 Ency. PI. & Pr. 9), and for the purposes of this case they are essentially the same. Further on in his opinion the learned justice says : “ In either case [whether judgment has been rendered upon the verdict of acquittal or *10upon a determination by the court of an issue of law] the defendant, having been once put upon his trial and discharged by the court, is not to be again vexed for the same cause, unless the legislature, acting within its constitutional authority, has made express provision for a review of the judgment at the instance of the government.” Our criminal statute has provided for an appeal by the state from a judgment for the defendant on a demurrer to the indictment, and from an order of the court arresting the judgment: Hill’s Ann. Laws, § 1430. But this does not extend to an appeal from a justice’s court. 'There “an appeal can only be taken by the defendant”: Hill’s Ann. Laws, § 2161. Indeed, a statute giving the right of appeal to the state from an acquittal after trial for a criminal offense, regardless of the magnitude of the crime, would be unconstitutional, as within the inhibition against a second jeopardy for the same offense : People ex rel. v. Miner, 144 Ill. 308 (19 L. R. A. 342, 33 N. E. 40). In a footnote to that case the learned author of these valuable reports says : “It may be stated as a general rule that in criminal cases errors are not subject to revision at the instance of the state.” So it was held in Village of Northville v. Westfall, 75 Mich. 603 (42 N. W. 1068), proceeding upon like principle, that the acquittal of a defendant, prosecuted by complaint and warrant, as in a criminal proceeding, before a justice of the peace, for the violation of a village ordinance, is beyond the reach of any process by review. These authorities are decisive against the city’s right to prosecute a writ of review in such cases, and, this being so, the circuit court was without jurisdiction in the case at bar, and should have quashed the writ upon the defendant’s motion interposed for the purpose. The judgment of the court below will therefore be reversed, and the cause remanded, with directions to dismiss the writ.

Beyersed.