Ragsdale v. City of Danville

116 Va. 484 | Va. | 1914

Whittle, J.,

delivered the opinion of the court.

The mayor of the city of Danville imposed a fine of $10.00 upon the plaintiff in error, John'N. Ragsdale, for the violation of a city ordinance for the prevention of the spread of small-pox, in refusing to be vaccinated. To an order of the corporation court of the city dismissing an appeal from that judgment, this writ of error was granted. After the order of dismissal, the plaintiff in error, still refusing to pay the fine, was committed by order of the mayor to the custody of the keeper of the city jail, there safely to be kept until discharged by due course of law.

In dismissing the appeal from the judgment of the mayor, the corporation court was controlled by section 7 of chapter 5 of the city charter, which declares, that “An appeal may be taken from the judgment of the mayor in imposing penalties for infraction of the city ordinances to the corporation court of the city, except in cases where the penalty imposed is a fine not exceeding ten dollars, in which case it shall be final. ’ ’

We do not understand that counsel questions the power of the Commonwealth to authorize municipal corporations, in the exercise of the police power, to pass, and enforce by pecuniary forfeiture, compulsory vaccination ordinances. An instructive discussion of the subject will be found in the opinion of the late Mr. Justice Harlan, speaking for the Supreme Court of the United States, in Henning Jacobson v. Commonwealth of Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, (annotated in 3 Am & Eng. Anno. Cas. 765).

The precise contention upon this writ of error is that the offense with which the plaintiff in error is charged is a criminal offense within the meaning of section 8, Art. I, of the Constitution of Virginia; consequently, that he had a right of appeal from the judgment of the mayor to the Corporation Court of the city of Danville, and, therefore, that the provision of section 7, chapter 5, of the city charter, limiting that right to cases where the forfeiture is in excess of $10.00, is unconstitutional.

Notwithstanding the provision-of Magna Gharta safeguarding the right of jury trial in cases involving life and liberty, and similar provisions in the Constitution of the United States and of the several States of the Union, it is matter of common knowledge that the general course of legislation in both countries has been for centuries to confer summary jurisdiction upon mayors and police justices of cities and towns and justices, of the peace of counties for the trial of minor offenses. Such offenses are not regarded essentially as crimes and misdemeanors within the purview of the constitutional guaranties referred to. 24 Cyc. 145; 2 Dillon on Mun. Corp. (5th ed.), secs. 637, 749-750; 3 McQuillan on Mun. Corp., secs. 1059-1065, inclusive.

In England the line of demarcation “is between offenses known as pleas of the croton, where the trial must be by jury, and petty offenses punishable by fine or amerciement in the inferior jurisdictions.” 3 Dillon, sec. 750. This distinction has been fully recognized and observed by the decisions of this court.

Thus, in Ex Parte Marx, 86 Va. 40, it was held that the constitutional right of trial by jury did not apply to a proceeding to impose the forfeiture prescribed by section 3799 of the Code for violation of the Sabbath. That ruling was sustained by the court as at present constituted in Wells v. Commonwealth, 107 Va. 834, 57 S. E. 588.

On the other hand, in the case oi Mary Miller v. Commonwealth, 88 Va. 618, 14 S. E. 161, 342, 979, 15 L. R. A. 441, the plaintiff in error was tried upon a warrant issued by a justice of the peace for keeping a house of ill-fame and found guilty, and sentenced to pay a fine and also to be confined in jail six months. Thereupon, she appealed to the county court, and, before any further proceedings were had, moved to quash the warrant on the ground that the justice had no jurisdiction to try the case in the first instance; but the motion was overruled. The case was then tried by a jury, which found her guilty, fixing the fine at $17.00 and adding a jail sentence of one month and twenty days. This judgment was affirmed by the circuit court. Upon writ of error to this court that judgment was reversed on the ground that the statute conferring concurrent jurisdiction upon justices with that of the county and corporation courts over the offense of keeping a house of ill-fame was repugnant to section 10, Art. I, Constitution of Virginia, and that the statute giving in such case the right of appeal and trial by jury did not relieve the repugnancy. It will be observed that the offense for which this woman was prosecuted was a public crime punishable by fine and imprisonment. Code, sec. 3790.

It is of interest to note that that case was overruled in Brown v. Epps. 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676, where the court held that “Sec. 4106 of the Code, giving to the several police justices and justices of the peace concurrent jurisdiction with the county and corporation courts of certain criminal cases, is to be construed in conjunction with sections 4107 and 4108 giving to the person convicted the right of appeal to the county and corporation courts, and regulating how said appeal shall be tried. The appeal wholly sets at naught the judgment rendered against him, and sec. 4108 guarantees to bim a fair trial by an impartial jury, before whom he stands innocent until his guilt is proven. So construing these sections, section 4106 is not in conflict with Art. I, sec. 10 of the Constitution of Virginia. Miller v. Commonwealth, 88 Va. 618, 14 S. E. 161, 342, 979, 15 L. R. A. 441, overruled.”

Still, the opinion of Lewis, P., in the Mary Miller case is of value in connection with the case in judgment in this, that at pages 620-621 it gives an accurate statement of the law with respect to the class of offenses foj* th.e trial of which the legislature may confer summary jurisdiction upon subordinate magistrates. The learned judge, after referring to the constitutional provision, observes: “ft must be .conceded, however, notwithstanding the broad language of the Constitution, that there are many petty offenses against statutes or municipal ordinances, such as Sabbath-breaking, drunkenness, vagrancy, and a vast variety of others, which are triable without a jury, because they were so triable when the Constitution was adopted, and the right of trial by jury which is secured is the right as it existed at the time the Constitution was adopted. This was decided in the recent case of Ex parte Marx, 86 Va. 40, 9 S. E. 475, and such is the settle^, law on the subject] Byers v. Com’th. 42 Pa. St. 89; Work v. State, 2 Ohio St. 296, 59 Am. Dec. 671; Inwood v. State, 42 Ind. 186; Tigally v. Mayor of Memphis, 6 Cald. 382; State v. Glenn, 54 Md. 572; Natal v. Louisiana, 139 U. S. 621, 11 Sup. Ct. 636, 35 L. Ed. 288; 4 Bl. Com. 280; 1 Step. Hist. Crim. Law, 122; 2 Dill. Mun. Corp. (4th ed.), sec. 439.”

R will be seen that the cases relied on by the plaintiff in error apply to ajmore serious class of offenses/than the one in judgment, such as affect the public at'large, and are embraced in the criminal statutes of the State and regarded as public crimes or misdemeanors!? Thus, Jernigan’s Case, 104 Va. 850, 52 S. E. 361, so much relied on by counsel, was “an act forbidden by a public statute, punishable by a proceeding in tbe name and for tbe benefit of tbe State, and, if tbe judgment was not satisfied, by confinement in jail.” Tbe prosecution arose under section 2071 of tbe Code, a general statute to prevent unlawful fishing in private waters east of tbe Blue Ridge. ' The violation of tbe statute was denominated a crime and not a mere tort.'\

Tbe contention made bn'bebalf of tbe city of Danville, that tbe course of appeal from tbe judgment of tbe •mayor in tbe instant case was to tbe circuit court and not to tbe corporation court of tbe city, under section 2956 of tbe Code, is founded on a misapprehension of tbe statute. It. is only “where tbe order is made or judgment rendered in a corporation, in a case involving tbe constitutionality or validity of an ordinance or by-law of said corporation” that tbe appeal lies to tbe circuit court. But that is not this case. Here, tbe judgment of tbe mayor from which tbe appeal was sought to be taken was for violation of tbe compulsory vaccination ordinance, and neither tbe constitutionality nor tbe validity of that ordinance was drawn in question.

For tbe foregoing reasons tbe order of tbe corporation court dismissing an appeal from tbe judgment of tbe mayor is affirmed.

Affirmed.