The Violation of a Municipal Ordinance As a Crime

Vanderbilt Law Review Vanderbilt Law Review

Volume 1 Issue 2 Issue 2 - February 1948

2-1-1948

The Violation of a Municipal Ordinance As a Crime The Violation of a Municipal Ordinance As a Crime

Stanley D. Rose

Article 5

Part of the Civil Law Commons, and the State and Local Government Law Commons

THE VIOLATION OF A MUNICIPAL ORDINANCE AS A CRIME

There are few comers of the law that have so consistently defied any uniformity of analysis as that of the legal effects of violating a municipal ordinance. The Wisconsin Supreme Court recently handed down a 'decision' which certainly simplifies the issues, but which seems to require a close examination of the premises used by the court.

A Wisconsin statute2 permitted any local authority to pass an ordinance making it a misdemeanor punishable by fine or imprisonment or both to operate a vehicle upon any highway of the state while under the influence of intoxicating liquor. A limitation was imposed that such ordinance "must be in strict conformity" with the similar statute of the state.3

The county of Winnebago passed such an ordinance and McDonald was charged with a violation of it. McDonald demanded a jury, and Judge Schniege of the municipal court ordered it. Because no provision for a jury trial was in the ordinance, Keefe, the county district attorney, petitioned the circuit court for a writ of prohibition to prevent the enforcement of the municipal court's order for a jury trial. The circuit court denied the petition. On appeal, the supreme court reversed this denial. Judge Fairchild based his decision on the following chain of reasoning: 1. The power to define crimes is a sovereign power. 2. The legislature may not delegate such power to counties or munici-

palities.

3. The legislature may permit the counties and cities to collect fines as penalties for the violation of local ordinances or it may permit imprisonment to enforce the collection of a fine.

4. This power of collection is exercised

through a civil action for

the recovery of a fine.

5. Imprisonment may not be imposed for a violation of a local ordi-

nance because

a. as an attempt to punish for a crime the ordinance

is un-

authorized, and

b. by the constitution, there may be imprisonment only for a crime. 6. Therefore, this ordinance was invalid because the county inherently cannot create crimes and the legislature cannot delegate to the county its own power to create crimes.

The premises of this opinion offer the basis for entering upon a consideration of the entire problem of the violation of a municipal ordinance.

It should be common knowledge that practically every local community in the United States. sends people to jail for the violations of some of its ordinances. The Wisconsin court would.put an end to this. If the decision is correct, practically all states then face extensive alterations in the laws governing their local communities. There will be much debate before such steps are taken. It is submitted that such a fundamental overhauling of the codes is not entirely necessary. This comment will undertake to show: 1. that the legislature can delegate its police power to-municipalities; 2. that violations of the police power can be criminal offenses, though perhaps they should not be because they are not "true crimes" as understood in criminal law;

3. that the prevailing view of a violation of the police power in the form of a municipal ordinance being a civil action has created both confusion and injustice and is in need of a re-analysis to reduce both; 4. that to determine whether a given municipal ordinance aims at punishment or remedy is a better test of the procedure to be adopted than the present fixed view that all such proceedings are civil regardless of the consequences.

The first problem is that of delegation of power by the legislature. A basic maxim of representative government is that the sovereign powers may not be delegated.4 "[B]ut fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the state." 5

While practically all decisions on the point agree with Judge Cooley that this delegation of the sovereign power is an exception to the maxim,6

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there are- few. attempts at analysis. Tile suggestion has been niade7-which may explain the'reason advanced by Cooley-that devolution is a'more precise term'1han delegation. The function of the legislature is to allocate functions of governifiit not exclusively legislative to the proper---on historical and analytical "grotinds--depositaries. Since municipal corporations, both historically -and analytically, should be the regulators of theii own political life, the pbwer'devolves upon them. "By its very nature, a 'legislature is a duty-assigning body." 8 When the"state legislature assigns the duty of creating local by-laws to a municipality, it is not delegatifi"." aithority but is actually distributing or devolving a proper function upon these local groups. Whether the power to delegate agathority to a local unit 9 be an, exception to the basicmaxim or is explainable 6n ther grounds, its universal exercise must be recoghized.

As a preliminary, it should be understood that a municipal cprporation is a creature of the state.10 It has only the powers given it by the s&t which are specifically enumerated in its charter, This is a general view and in this comment, space does not permit any consideration of the possible inherent powers of local government."- The problem here being considered goes to the very contention that whatever powers of self-regulation may be permitted, no imposition of criminal sanctions can be delegated by the state to its creatures.

What is the nature of this power delegated by the state legislatures to the local counties and municipalities? This is the police power. Precise definition has been elusive,12 but the general aims of this power are well known: " [T] here seems to be no doubt that it does extend to the" protection

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-of the lives, health, and property of the citizens, and to the. preservation of good order and public morals." 13

A more explicit statement of the point is in Cook Couanty v. City of Chicago;14 "Among the powers exercised by municipalities are what are known as the police powers of the state. These powers rest in the state, and may be delegated to municipal corporations created by the state, to be exercised for the welfare, saftey, and the health of the public. Under the police power cities and villages may enact reasonable ordinances to preserve health ... The police power is not impaired by the Fourteenth Amendment ..., but every citizen holds -his property subject to the proper exercise of the police power, either by the state Legislature or by the public or municipal corporations, to which the Legislature has delegated that power." A5

The Wisconsin court in the principal case grants these propositions. "Nothing in this opinion is to be taken as in any way casting doubt upon the power of the legislature to vest in a county board or municipal council power to provide for the good order of the community by enacting ordinances regulating local affairs, provided there is not included the power in either to create crimes and impose criminal punishments." 16

The conclusion is that the legislature, without question, can delegate part of its power to municipalities. This delegable power includes the police power which is, in fact, very extensively exercised.

The: principal case admits the power to permit the municipal authorities to make police, regulations but denies the right to create crimes or impose criminal punishments. The language used is interesting in raising the question of what kind of "punishments"- are not criminal. This point will be discussed later. The point at issue here is, when given the power to enact local police regulations, what sanctions may be imposed to insure compliance with them. Very suggestively, an earlier Wisconsin court had said that, "We know of no better or more effective way of suppressing a disorderly house, or preventing or crushing them out, than to provide a penalty against the keeper." 17 Can the violation of a police regulation be a crime? This poses the further question which must be answered first of all, "What is a crime?"

"A crime is any wrong which the government deems injurious to the

13. Beer Co. v. Massachusetts, 97 U. S. 25, 33 (1877). 14. 311 111. 234, 142 N. E. 512 (1924). 15. Id at 512, 513. See also Baker City Mut. Irr. Co. v. Baker City, 58 Ore. 306, 113 Pac. 9 (1911); Tugman v. The City of Chicago, 78 Ill. 405 (1875); Commonwealth v. Bennett, 108 Mass. 27 (1871) ; Rossberg v. State, 111 Md. 394, 74 At. 581 (1909) ; Burckholter v. The Incorporated Village of McConnellsville, 20 Ohio St. 308 (1870) ; City of Danville v. Hatcher, 101 Va. 523, 44 S. E. 723 (1903).

16. 28 N. W. 2d 345, 349. 17. Ogden v. City of Madison, 111 Wis. 413, 87 N. W. 568, 570 (1901).

public at large, and punishes through a judicial proceeding in its own name.... Ordinarily a cause is not deemed criminal if the State is not the plaintiff." ' Such a definition would make a crime of almost any breach of a regulation, thus a further analysis must be made.

A "true crime" is one of the products of the matured common law. As the law came of age, "the rule was that there could be no conviction for the commission of a crime without criminal intent on the part of the offender." '- Every true crime has two parts; the physical element-the actus remv,-and the mental element-the mens rea.20 But the ordinary regulatory enactment simply declares the wrong to be the act itself-going more than thirty-five miles per hour-and no use is made of the magic words "wilfully," "maliciously," or the like which would indicate the traditional mark of criminal intent. So" we have a tremendous fidld of offenses that have none of the ancient requirement of the guilty mind. They have been variously called "public welfare offenses," 21 "public torts," 22 "police offenses," 23 and "regulatory offenses." 24

These types of offenses are of relatively recent appearance.25 They are due to the expanding complexity of our society in which "the legislatures found it necessary to increase tremendously the amount of regulatory enact-

merits; and for some reason the lawmakers turned to the criminal law for sanctions." 26

These offenses defy analysis in terms of the criminal law 'and their -effect on the criminal law has been bitterly attacked. They have become so numerous in the statute books that to the layman the -term "criminal" is beginning to lose its reprehensible character. That there is sound argument that violations of police regulations should not be classified as crimes is undeniable. The stumbling block 'seems to be the current, conceptions of penology.27. To the average layman, the most effe.ctive sanction is imprisonment. If a material change, is made at this point, it .may well be possible to make many. of the viplations of these police regulations mere civil offenses punishable by a pecuniary penalty.

This is not to be taken to -mean that all of these public welfare offenses are not true crimes. Four rules .we re set forth28 by Dean Gausewitz of the College of Law of the University of New Mexico that .indicate a possible ,line of demarcation:

I.. No act which imposes absolute liability should .-remain criminal. II. If the only penalty imposed for a present crime .is a. fine, the act should be removed. from the criminal code, for the. penalty can as well be imposed by civil action.

III. If a present crime was not a crime at common law, if its commission does not prima facie indicate a dangerous personality, and if the act is not popularly regarded as reprehensible, the act should be removed from the criminal code.

IV. If .the act is of a.type that requ.ires the interest and expertness of .a specially designated and qualified official for its efficient, enforcement, it should not be a crime unless it clearly does not come within, class III.

The conclusions suggested are that violations of police regulations are

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in the criminal codes as criminal offenses; that there is a powerful thcoretical basis for removing them from the criminal codes but that until this. is done the violators of such police regulations are subject to crimitial sanctions and should be protected always by the established safeguards of criminal pr'ocedure..

The prevailing view appears very clearly to be that the proceedings oni the violation of municipal ordinances are civil actions for the recovery of

a debt.2 The most explicit authority, so far as advancing a reason for this. stand, is Blackstone.0 [E]very person is bound and hati virtually agreed to pay such particular sums of Mnoney as are charged on hiri" by the sentence, or assessed by the interpretation of the law. For it i a'part of the original contract, entered into by all mankind Who partake tKe benefits" of society, to submit in all points to the municipal constituti6nq' and locall ordinances' of that state, of which each individual is a member. Wbatever,. therefor8, 'the law orders anyone to pay, that becomes instan ly a debt, which" he hath beforehand contracted to discharge." (Italics added)

It seems difficult to conceive that a part of our modern law shouldi still be based upon the social contract theories of the Eighteenth Century. Yt the courts do say that at common' laNV the proper action in Uhehe cases. is in debt -of Assumpsit.3' A more moderi View82 suggests the means for a. complete break with this approach by examining the sanction ifiended,rather than the procedure imposed by historical accident. This' modein i st fordetermining: vhetlier' an action is civil or criininal by an examiiat6n of the intent bf the lhislature in imposing the sanction will be considred later in this c6rntiint. At this point, the matter of importance is the 'JustiAcation, of.imprisonmefit in an alleged civil action for the violation of a- muicipal ordinance.

" It is inteesting f6 iibte 'thlat in-1596 one Clark 'recovered a 'jtgment against the mayor of a town for being falsely imprisoned. Clark' had -efused: .to pay a'ta- assessed by' the town and in'punishment had been 'p tt in jail. The court held that the violation bf a municipal by-law could not be 'Punished' by imprisonment contrary. to the twent)-ninth chapter of the Magna Carta,331

30. 3 Comm. *158. 31. Ewbanks v. Town of Ashley, 36 Ill. 177 (1864) ; Coates v. Mayor of New York,.

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which forbade the imprisonment of any free man except:by the judgment of his peers or according to the law .of the .land, The court further said that theto.wn- "might have inflicted a -rsonable penalty, but -not imprisonment, which penalty they might limit to- be levied- by distress,, or for.- which an actipq of.,.ebt lay." 34

Imprisonment may be imposed,.a.ttwp .points. -First, to coerce the payment of a fine already levied for. violation .of the ordinance, .and second,

a4 the, sol.peenalty (or in addition to. a fine).- for the violation :of the ordinance. Tle..basic question to be borne jn..!mind is that if this proceeding is a civil actjpq for debt, how is the constitutional provision against imprisonment for debt explained away?

The.Wisconsin court in the instant case is in accord with.the, general .coerce the payment of a fine35 and view that imprisonment is proper by so holding must be implicitly denying the. contract propounded. by the theory 'of Blackstone. The rationale for the coercion of a fine by imprisonment has b'een stated many times and now seems accepted beyopd question: An Illinois court ^6 simply said, "The prohibition does extend'to'actions for torts, nor td fines oi penalties' arising' from a volation of 'the penal laws of the state. It has reference to debts arising e-v con.tfachi."' A Nebraska ,court37 te if' as "merely "a means of cbmpelling 6dheience -o'thie judgment" of: the cotirt:"

AK'feder'air coitft88 gave a -very"

reasonable6 'combinatiori df these two -views of Why-imprisofment wiv ndt prohibited in these cas'es. "It may be -admitted that' a penalty Wgiven 'by a statiite Is :technically a debt It does -not, howtvei-, arise 'tipon contifat, but by oleriation of "law.'It i' iniposed -as a quasi' pfinishineritfor ttie Vi'olation"of li oi' the hegl;!6 o" ireusal to perform 'some duty 'to thepublic or i'ndividuals enjoined by la*. Penalties :are hposdin'furth'erfiaiie of iome public police, -and as Ia meis "of securing f6 -law. Persons vhc; incur"them are 'either in moras or law, obedieii&e -wrongldbrs, 'nd ndt "inipfy unfortunate 'debtors unable'to perform their pecuniary "obligatioiis." Al'-)un&ary-penali

seems obviously the proper forfeituredin this sort .of 'case aid' if by judicial decision'it is not within the pale of the forbidden contrdctull-debts, imprisonment'is p~rmissible to -coerce the p.Yment- of

." -

-"

34. Clark's Case, 5 Co. Rep. 64a, 77 Eng. Rep. 152 (1596). 35. Supra note 1, 28 N. W. 2d 345, 349. 36. Kennedy v. People, 122 Ill: 649, 13 N. E. 213, 214 (1887); accord, Bray v. State,

140 Alai 172,37 So-250 (1904).:

37:'.Peterson v. State, 79 Nebr. 132, 112 N. W..306, 310 (1907). In Bregguglia v. Lord, 53 N. J. L. 168, 20 Atl. 1082 (1890) it was held that although the mayorhad power to fine, imprison, or both, nevertheless, he did not have power to coerce the fine by imprison'nent unless that power was expressly given. Accord, Brieswick v. Brunswick, 51' Ga. -639 (1874). Contra: City. -of Milwaukee v.. Johnson, 192 Wis. 585, 213 N. W -335 (1927). (semble, there is an inherent power to coerce a fine validly imposed -by imprisonment). 38. United States v. Walsh, 28 Fed. Cas. 391, 393-4, No. 16;635 (D. Ore..1867):.

such a penalty. The truly fundamental question is, however, by what reasoning can it be justifiable to imprison a man as the sole punishment for the violation of a municipal ordinance? Imprisonment alone may only be imposed if expressly authorized by the state in a grant of power to the municipality,P and it is as a matter of fact extensively granted,'but how can it be authorized as proper in an action on this civic debt?

An early Indiana court 40 declared the legislative intent to be "to require payment by the labor of the defendant ..." It is sufficient to point out that the common law actions of debt and assumpsit lay for money only.41 It does not seem to be a question of justifying the use of imprisonment, but of simply showing that there are no constitutional barriers to its use. First of all, the usual constitutional provisions against imprisonment for debt either expressly or by judicial decision exclude these technicar debts. For example, Art. 1, Sec. 16 of the Wisconsin constitution forbids imprisonment "for debt arising out of or founided upon a contract, expressed

or implied."

then,

Unless,

Secondly, constitutional provisions against slavery or involuntary servitude do not prohibit imprisonment alone. "Imprisonment is not servitude. Labor eriforced as a punishment is 'involuntary servitude.'" 42 The use by the Wisconsin court of this type of provision43 to invalidate imprisonment alone as punishment for the violation of a municipal ordinance seems erroneous. is some other constitutional provision barring imprisonment except upon conviction for a crime, this is generally regarded as a permissible penalty. Admittedly this carries no weight as an argument and is hardly persuasive in supporting a contention that there is a primary intent to collect a debt. At the same time the courts are usually careful to avoid giving anyr expression to the punitive and supposed deterrent aspects of the imprisonment. There being little debate then, imprisonment continues as a proper civil penalty with such results as may now be considered.

there

The conclusion to be drawn at this point is that there does not appear to be any rationale for imprisonment as a civil penalty and at the same .tinie, there does not seem to be any constitutional objection to its use. If the

thought does arise that after all a man may be sent to jail without a trial by jury, the only answer is that these are civil actions and the personal liberties are not there the primary concern.

The results that flow from being able to imprison a man in a proceeding for the violation of a municipal ordinance present an interesting problem. By some means or other, the great majority of the courts have declared that such proceedings are civil. When a Tennessee statue made it a misdemeanor to violate a particular ordinance, the court felt impelled to say that "the word 'misdemeanor,' as employed in statutes conferring power upon municipal corporations, is not wholly synonymous with the same term as used at common law, or in general statutes defining offenses against the State of a grade less than felony, but has a more restricted meaning, being limited to offenses against the smaller local government." 44 The "punishment is in the form of the assessment of a penalty.45 . ..but at last the purpose of the action is punishment." 46 Such candor should lead to a realization that the personal liberties were at stake and that the rules of criminal procedure should govern. In the Tennessee case, the prisoner was told that the city quite properly had an appeal, that his release on habeas corpus was reversed; he was remanded to the custody of the jailer, and ordered to pay the costs of the appeal.

In a Minnesota case,47 because violation of an or'dinance is only a civil offense,-the accused had no right to a jury trial, proof beyond a reasonable doubt was not' needed for a conviction, and statutes which r~fused the uncorroborated evidence of an accomplice or which refused the .defendant's confession without evidence that the offense charged had been committed, did not. apply to her case.

A number of similar results lends much weight to the assertion of one writer that considering the proceeding on the violation of a municipal ordinance as a civil action "has proved a particularly handy theory in that it offers a convient subterfuge by which to evade the constitutional- rights of persons accused of crime." 48 A person accused of violating an ordinance may be punished and have no right to a trial by jury49 and in.:many cases, if the state had tried- him for the same acts he would have had such a right. It seems settled now that if by express grant from the legislature a city makes a. prohibition by ordinance which is also a crime by state statute, conviction for violation of the ordinance does not bar prosecution for the

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same offense as a state crime.50 The Lanza.- case settled, the law that the same. acts. may. be. punished by. separate jurisd~ctions, as. stateand federal, is the. :,qture of. without double jeopardy attaching. But .,Municipality the state, and :as .such can punish, only what the state permit.it tqpunish.62 The argument that there gre two jurisdictions simply is not true; if only, one jurisdiction, the accpsed is being punished twice for the same acts, once. criminally, and, once civilly with criminal sanctions..

The matter cannot be discussed rationally on the level of a civil action for debt. All, parties acknowledge that the plain intent is to punish. This returns such proceedings, squarely to the criminal law. The cors "...regard any proceedings as 'criminal' which may terminate in the-infliction of punishment; .efven thougl~ it be merely a pecuniary. fine."'P, "[I.If the ,legislature considers the act sufficently dangerous, to the state to yequirp punishment, it is. a..crime." 4 :And the. test of punishment is found, "wheraeyer imprisonmenat is prescribed or permitted,.

It is submitted that wvhen a violation of a municipal ordinance Fan be. punished by- imprisonment.alone, that .that public 9ffense is, being..declared a crime, and that all the safeguards of constitutional law s.hud, attach. The Wisconsin court.in the Schniiege case stat.ed that a .Municipal, ordinance cannot create. a. crime, and therefore that any imprisoqment-for:thc violation -of such an ordinance -is unatthorized. It has been indicated previously that municipalities clearly have the right to declare as crimes violations of their police regulations. That such, violations became debts by mere historical accident has resulted in inadequate protection for de.fendants in such cases. I The point at which the. courts were forced to make their major stand as to .whet.her' the prosecutions were. civil or criminal came when the defendant was acquitted and the municipality wished to appeal.6, The decisions cannot be reconciled, but are most instructive when the various attempts at rationalization are examined. The trouble stems, from the b.sic premises. The courts recognized that the law was established that these were civil

52. See Kneier, Prosecution Under State Law and Municipal Ordinance as Double

actions, .but it was also undeniable that the proceedings were usually criminal in form and led to sanctions that were peculiarly criminal and punitive. The language. difficulties are intriguing, however regrettable the results may frequently appear to be.

A Tennessee court 67 saidi "A municipality is a government within itself, and xhust have the power to punish for offenses against its laws, and must be able'to bring that punishment to bear and to-make it effective by its own agencies, that is, through its own courts and officers. However, the right of apeal hay be given, and generally'is given, and, if exercised,, the municipality appears in another jurisdiction; that is, in th6 courts of the'State, as a suitor to recover the penalty which it has assessed against the violator of its laws. But ihe larger court, while trying the controversy as a: civil suit, will see to it that the municipality, if successful,' shall have the same-sanctions for the- enforcement of its laws as if the trial had terminated in the municipal court. In truth, the action is in'itis various aspects a hybrid one, partly criminal and partly civil."

The Missotiri courts had some verbal difficulties, as shown by the following "A' proceeding in the name of a city to recover a penalty for the breach'6f an ordinance is a criminal one from some points of view but it is also a civil proceeding from other viewpoints. The best the law has been able to do is to call it civil or quasi criminal in character." 68

The same court seyeral .years later, when faced with the same type of violation, said, "We have differently defined the suit as civil or quasi civil." 59 A difference over the meaning of "quasi criminal" is seen in a series of

lP'resident of the Village of Platteville v. McKernan 60 simply states "that where a city or village ordinance, prohibits that which is a crime ,Pr misdemeanor,.4n4 punishable at common law or by statute, and prescribes a penalty for its violation by a fine, and,. conditionally, imprisonment, the action to recover such penalty is quasi criminal, and cannot be brought to this court by appeal on behalf of. the plaintiff."

city ordinance "arose to the grade of a misdetnearior for no other reason than that it was also forbidden by the state laW."

• The decision in City of Miliwaukee '%. Johnsonl 62 that "all proceedings to collect penalties under municipal ordinances shall be treated as civil actions, ..-." was, therefore, not unexpected, in that "the nature of the relief sought, and not the possibility that sbme-other proceeding may be brought... should be the test by which to determine whether the proceeding under the ordinance is civil or quasi criminal in its nature." 6 The ordinance in this case prohibited the owning or operating of a slot machine and the Penalty for violation was fine, imprisonment, or both.

The Wisconsin statute 64 says that "A criminal action is prosecuted by the state against a person charged with a public offense, for the punishment thereof. Every other is a civil action."

In City of Waukesha v. Sch essler,65 the city claimed that the. violation of a city ordinance resulted in a quasi criminal proceeding and therefore that the defendant's manner of appeal was erroneous. The court settled the matter with definite finality. "By no process of reasoning, nor any.subterfuge, can there be created a third class of actions, nor can any action except one prosecuted by the state be considered a criminal action." This is a wholly admirable solution and should clarify many matters if adopted more widely.

All jurisdictions have not remained adamant on these questions. Many courts have reacted vigorously to the view that such proceedings are civil and have flatly declared them to be criminal. The reasoning is varied. Most frequently it is asserted that the character of the proceedings precludes any other view than that they are designedly criminal.66 Whatever is done in the way of enforcement of ordinances is by permission of the state and in West Virginia that is criminal which "is a violation of any law or ordinance of man subjecting the offender to public punishment, including fine or imprisonment, and excluding redress for private injury, punitive or compensatory." 67

"The terms 'crime,' 'offense,' and 'criminal offense' are all "ynonymous, and ordinarily used interchangeably, and include any breach of law established for the protection of the public .... A municipal ordinance is as much the protection of the public as is a criminal statute of the a law fo state .... ,, 68 A strong factor in this matter is whether or not the ordinance

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'."

forbids an act which is declared a crime by state statute. If- it does, the violation of the ordinance is usually considered a crime,69 but, this is. clearly not entirely, adequate.

,

Some courts make no effort to deny to the municipality the right to create crimes under its .general delegated powers.O By specific, statute, the city authorities may be given definite power to hold criminal pr.Koceedings.71 Most conclusively, a North Carolina statute simply says, "If any person, shall violate an ordinance of a city or town, he shall be guilty of a misdemeanor, and shall be fined not exceeding fifty dollars, or imprisoned not exceeding thirty days." 72 The civic authorities, are given jurisdiction in these cases.73

The attempt has here been made to show the .effects of holding proceedings on the violation of municipal ordinances to be civil actions, Whether the proceedings be civil or, criminal, the defendant is being subjected to the criminal sanctions of imprisonment or fine and imprisonment. .In any proceeding in which the accused is faced with the possibility of being subjeg-ted to these sanctions, it is submitted that he. ought to be protected by the safeguards. of the criminal procedure. His guilt should be established by evidence showing it beyond a reasonable doubt rather than by a mere preponderance of the evidence. His right to a trial by jury should be set by the requirements in criminal cases in the particular jurisdiction. If the state constitution makes the right to'a trial by jury absolute in all criminal cases; anyone about to be subjected 'to criminal sanctions shotild'have an absolute right to'the benefit of this provision.

If, under certain circumstances, the state is allo'ied an appeal-in criminal eases, the limitatiois on the state should attach in'the same 'fashion to the iunicipality's right 6f appeal in th'ese cases.

".

The courts seemed to have recoguized some of these rights and in the attempt to reconcile the issues, were forced into the verbal arid logical discrepancies indicated above. The basic premise whici" made ci prbceedings on the violation of municipal ordinances civil actions is too broad tolie upheld with justice. Legislation will probably be necessary to attach these.safeguards firmly to the accused in these cases. The suggestion is here made to re-ekamine the problem in terms of what is intended by the particular police regulation and what is intended by the sanction imposed for its violatipn.

69.. See Note, 33 L. R. A. 33 (1896). 70. Kohr Bros. v. Atlantic City, 104, N. J. L. 468, 142 At. 34 (1928); Bi'ra v. State, 140 Ala. 172, 37 So. 250 (1904) ; City of Seattle v. Bell, 199 Wash. 441, 92' P.- 2d 197 (1939).

71. City of Greenville v. Pridmore, 162 S. C. 52, 160 S. E. 144 (1931) ; Hayes v.

City of Jasper, 26 Ala. App. 401, 160 So. 775 (1935).

72. GEN. STAT. N. C. § 14-4 (1943). 73. GEN. STAT. N. C. § 160-13 (1943).

As previously indicated, an attempt to consider a proceeding for the" violation of a municipal ordinance as a civil action for debt creates difficulties in its rationale. One of the difficulties is verbal. The common expression used by the courts is that a civil action is begun to collect a penalty, whereas a criminal action exacts a punishment. Suppose the punishment in a criminal action is a fine of a sum of money. A New York court tried to make a disis a generic term, tincti6n between a "fine" and a "penalty" 74 "'Penalty' which includes fines as well as other kinds of punishment.... Strictly speaking, 'penalty' denotes punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime against its laws .... As generally under-

stood in this state, ...a fine is imposed in a criminal action or proceeding, but a penalty or forfeiture ordinarily is recoverable in a civil action." This quotation does indicate the difficulty, for according to common parlance, all punishments are penalties, but not all penalties are punishments. The trouble is that to determine which is which the courts have, according to justice Brandeis, "usually attempted to distinguish between the type of procedural rule involved rather than the kind of sanction being enforced." 75 Thus it is first determined that proceedings on the violation of a municipal ordinance are civil actions and, therefore, it follows that only penalities ensue. It is submitted that a better approach is by way of distinguishing a remedial from a punitive sanction. This goes to the intent of the legislature in imposing the sanctior. A suggestive method of handling this distinction was made by justice Brandeis in Hclvering v. Mitchell.76

Mitchell was acquitted of a criminal charge of wilfully evading the income tax laws in the amount of $728,709. The Commissioner of Internal Revenue then assessed the deficiency of $728,709 and added to it the statutory penalty of 50%, or $364,354, for fraud with intent to evade the tax. The court of appeals approved the deficiency assessed but denied the right to assess the penalty because it was clearly a punishment and not a preventive measure.77 The Supreme Court granted certiorari on the penalty assessment issue. justice Brandeis upheld the penalty assessment and reasoned,

1. Mitchell's acquittal could not be res judicata because of differences of proof required in criminal and civil cases. A civil suit, "remedial in nature" is not barred by a prior criminal acquittal. "Where the objective of the subsequent action likewise is punishment, the acquittal is a bar." 78 Mitchell naturally contended that this was "a

criminal penalty intended as punishment for allegedly fraudulent acts," and therefore that the proceeding was criminal.

2. This sanction was remedl. The provisi6n of a civil procedure for collection of this penalty is evidence of that intent; the provision in another section. for a distinctly punitive sanction points to this as a remedial sanction.- The whole objective of such sanctions is to act "primarily as a safeguard for the protection of the revenue and to reimburse the Government for the heavy expense of investigation and the loss resulting from the taxpayer's fraud.".79

In a footnote, Justice Brandeis added that "The fact. that ,a criminal procedure is prescribed for the enforcement of a sanction may be an iridication that it is intended to be punitive, but cannot be deemed conclusive if alternative enforcement by a civil proceeding is sustained." so

In the light of the issues that may arise, the wisdom is apparent of writing the statute in such a way as clearly to indicate the objective. in mind. A New York statute 81 gives the alternative of a punishment of a fine ($150), imprisonment, or both; "br" such ordinance may provide for a penalty, not exceeding five hundred doilars to 'be recovered by the city in a civil action.';

In summary,, it is submitted that violations of municipal ordinances can be and frequently are crimes; that any distinction should be based upon the intent of the sanction imposed; that if any intent to punish is evident, vhich intent is bet manifested by imprisonment, the safeguards of criminal procedure should be at the disposal of the accused. A re-examination of' the rationale of penalizing for the violation of municipal ordinances is necessary to the en1 that if a crime is being created, it should be clearly delineated, but that if an act is being forbidden which the municipality intends to result in a pecuniary penalty in the nature of civil damages, it may not be forced-to justify its litigati6n by insupportable arguments based upon an obsolete philosophical concept.

--- FOOTNOTES ---

1. State ex rel. Keefe v. Schmiege, 28 N. W. 2d 345 (Wis. 1947). 2. Ws. STAT. § 85.84 (1945). 3. Wis. STAT. § 85.13 (1945). Punishment provided for violation in § 85.91 (3). 262

THE CONSTITTIrlONAL POWER

4. 1 CooiLY, CO NSTIuTIrONAL LImITATIONs 224 (8th ed. 1927). 5. 1 COOLEY, op. cit., 389, 390. The general subject of delegation of legislative power has been thoroughly covered with the general effect of destroying the absolutism of the maxim, delegatus zon potest delegare. See Baesler, A Suggested Classification o the Decisions on Delegation of Legislative Power, 15 B. U. L. REv. 507 (1935); Duff & Whiteside, Delegata Potestas Non Potest Delegari: A Maxim of American Constitutional Law, 14 Come. L. Q. 168 (1929).

6. The authorities may well be classed as pre-Cooley and post-Cooley, for from shortly after 1868 on, Cooley is the standard authority for this holding. The State v. Simonds, 3 Mo. 414 (1834) ; The State v. Noyes, 30 N. H. 279 (1855) ; Bliss v. Kraus,

16 Ohio St. 55 (1864) ; Trigally v. Mayor and Aldermen of Memphis', 6 Cold. 382 (Tenn. 1869); Durach's Appeal, 62 Pa. St. 491 (1869); State v. Westmoreland, 133 La. 1015, 63 So. 502 (1913); Stoutenburgh v. Hennick, 129 U. S. 141 (1889); Stanfill v. Court of County Revenue, 80 Ala. 287 (1885) ; City of Jacksonville v. Bowden, 67 Fla. 181, 64 So. 769 (1914) ; Robinson v. Schenck, 102 Ind. 307, 1 N; E. 698 (1885).

7. Baesler, A Suggested Classification of the Decisions on Delegation of Legislative Power, 15 B. U. L. Rv. 507, 509, 520 (1935) ; Walker, The Delegation 'of Police Power to Counties, 3 LA. L. Rav. 522, 525-28 (1941).

8. Walker, op. cit., 525. 9* To counties: Walker, op. cit.. To cities: McBain, The Delegation of Legislative Power to Cities, 32 POL. Sci. Q. 276, 391 (1917). See also, La Fargei Delegability of Police Powers to Non-Municipal Public Corporations in Home Rule States, 5 GEo. WASH. L. REv. 880 (1937).

10. 1 McQUILLAN, MUNICIPAL CORPORATONS § 145 (2d ed., 1940 Revision). 11. For an entry into the Home Rule debate, see McBain, The Doctrine of an Inherent

Right of Local Self-Government, 16 COL. L. REv. 190 (1916).

12. "The term 'police power' has been much employed in recent years, and many attempts have been made to define it, but it is said to be incapable of definition." Sanning v. City of Cincinnati, 81 Ohio St 142, 90 N. E. 125, 127 (1909). Mr. Justice Holmes had this to say: "We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the States is limited by the Constitution..., judges should be slow to read into the latter a nolulnus nmutare as against the law-making power." Noble State Bank v. Haskell, 219 U. S. 104, 110 (1911).

VIOLATIONs oF POLICE REGULATIONS AS CRIMES

18. BISHOP, CRIMINAL LAW § 32 (9th ed. 1923). 19. Comment: Unburdening the Substantive Criminal Law in Wisconsin, Wis. L.

REv. [19461 172, 173.

20. Perkins, A Rationale of Mens Rea, 52 Haav. L. REv. 905 (1939). 21. Sayre, Public Welfare Offenses, 33 CoL. L. Rav. 55 (1933). "The term 'public welfare offenses,' is used to denote the group of police offenses and criminal nuisances, punishable irrespective of the actor's state of mind, which have been developing in England and America within the past three-quarters of a century." Id. at 56, n. 5.

22. BEALE, A SELECTION OF CASES AND OTHER AUTHORITIES UPON CRImI;AL LAW, 129 (4th ed. 1928). Hall fails to see any significance in Beale's use of the term in connection with the cases he cites. Hall, Inter-relations of Criminal Law and Torts: II, ; Note, Public Torts and Mens Rea, 12 IoWA L. REV. 407 43 CoL. L. REV. 967, 994 (1943) (1927) at 408 states, "The term 'public torts' refers to injuries to the state which are treated as analogous to civil injuries but which are actionable criminally either at common law or by statute." Also Note, Public Torts, 35 H~av. L. REv. 462 (1922). Also MAY, LAW OF CaI Es § 10 (4th ed. 1938). "Recently there has been advocated a new classification of criminal offenses into public torts and real crimes. Public torts would' include all wrongs against the state actionable criminally, the penalities for which are not intended as punishment but as compensation ...they would include injuries to public property, public nuisances, and police offenses."

23. FREUND, THE POLICE POWER 21-22 (1904). "The peculiar province of the criminal law is the punishment of acts intrinsically vicious, evil, and condemned by social sentiment; the province of the police power is the enforcement of merely conventional restraints, so that in the absence of positive legislative action, there would be no possible offense... It has been the common practice of legislation to punish police offenses as misdemeanors, i.e., by fine or commitment to the jail." Also Freund, Classification and Definition of Crimes, 5 J. oF Camn. L. & CRin. 807 (1915). "Police offenses are both in legislation and administration often distinguished from common crimes. Either the interest affected or the guilt involved, or both, are less serious or urgent. The power or even policy of repression is to a considerable degree delegated to local authorities." Id. at 824.

24. Note, Reclassification of Certain Offenses as Civil Instead of Crintinal, 12 Wis.

25. Their history is traced in Sayre, Public Welfare Offenses, 33 COL. L. Rav. 55

L. Rav. 365 (1937).

(1933).

26. Comment, Unburdening the Substantive Criminal Law in Wisconsin, Wis L. Rsv. [1946], 172, 175. The writer then continues, "This does not, of course, include the numerois local ordinances and by-laws adopted by counties, cities, villages, and towns.... [in Wis-consin, because of the specific definition of a criminal proceeding] .. .In many states, h6wever, such, violations are treated as crimes, and dealt with as such." Wis. STAT. § 260.05 (1945) states that "A criminal action is prosecuted by the state against a person -chirged with a public offense, for the punishment thereof. Every other is a civil action." Wis. CoNsT: ART. VII, § 17 declares that "all criminal prosecutions, shall be carried on in the name and by the authority of the [State]." These two sections would give the basis -for a less questionable opinion in the principal case by making the inability of municipalities to create crimes peculiar to states which have such constitutional provisions and even then iot necessarily so if machinery is established by the state to prosecute 0olations of stich ordinances. It appears that in Minnesota, there are such provisions'in the city char-ters and the state is recognized as only a nominal party. State v. Brown, 50 Minn. 128, 52 N. W. 531 (1892) ; See also Sayre, Public Welfare Offenses, 33 COL. L. REv. 55, 67-70 (1933).

27. See ELLIOTT, CONFLICTING PENAL THaEORIES Ix STATUTORY CRIx

iIXAL LXW C.

28. Note, Reclassification of Certain Offenses as Civil Instead of Criminiil, 12 Wis.

11 (1931).

I,. REv. 365, 367 (1937).

JUSTIFICATION OF litPRISONMENT AS A PROPER PENALTY IN A CIVIL ACTION:

FOR THE VIOLATION OF A MUNICIPAL ORDINANCE

-

-' '

"...

29. 3 MCQUMLAN, MUNICIAL CoRoRAT1Ns § 1136 (2d ed., 1943 Revision); City of Milwaukee v. Johnson, 192 Wis. 585, 213 N. W. 335 (1927) ; O'Haver v. Montgomery, 120' Tenn. 448, 111 S. W. 449 (1908).

7 Cow. 585 (N. Y. 1827).

32. See Helvering v. Mitchell, 303 U. S. 391 (1938). 33. "Nidlus liber hoino capiatur, vel inmprisonetur ..

parium suorun, vel per legem terrae."

.Nisi per legate judicimti

-to

'

'

..

-

39. The City of Burlington v. Kellar, 18 Ia. 59 (1864) ; City of Bozeman v. Merrell, 81 Mont. 19, 261 Pac. 876 (1927) ; 2 MCQUILLAX, MUNICIPAL CORPORATrONS § 752 (2d ed. 1939 Revision).

40. Flora v. Sachs, 64 Ind. 155, 160 (1878). 41. 3 Br. CoMm. *154, *158, 42. Flannagan v. Jepson, 177 Iowa 393, 158 N. W. 641, 642 (1916). See Ex Partc

Wilson, 114 U. S. 417, 429 (1885).

43. Supra note 1, 28 N. W. 2d 345, 348.

CRIMINAL SANCTIONS

IN CIVIL ACTIONS,

44. O'Haver v. Montgomery, 120 Tenn. 448, 456, 111 S. W. 449, 450- (1908). 45. Id. at 459. 46. Id. at 460. 47. State v. Nelson, 157 Minn. 506, 196 N. W. 279 (1923). See City of Cape Girardeau (Rules of evidence in civil cases

v. Smith, 61 S. W. 2d 231 (St. Louis Ct. App. 1933) govern prosecutions for ordinance violations).

48. Grant, Penal Ordinances ih; California, 24 CALIF. L. Rav. 123 (1936). 49. Hood v. Von Glahn, 88 Ga. 405, 14 S. E. 564 (1892) ; Ogden v. City of Madison, 111 Wis. 413, 87 N..W. 568 (1901); Hunt v. City of Jacksonville, 34 Fla. 504, 16 So. 398 (1894) (these offenses "are generally trivial in character." $500 fine); City of Mankato v. Arnold, 36 Minn. 62, 30 N. W. 305 (1886).

50. Greenwood v. The State, 6 Baxt. 567 (Tenn. 1873) State ex rel Karr v. Taxing District of Shelby, County, 16 Lea 240 (Tenn. 1886); Hood v. Von Glahn, 88 Ga. 405, 14 S. E. 564 (1892); Ogden v. City of Madison, 111 Wis. 413, 87 N. W. 568 (1901). Contra: Village of Northville v. Westfall, 75 Mich. 603, 42 N. W. 1068 (1889) (a vigorous dissent to the very concept). 51. United States v. Lanza, 260 U. S. 377 (1922). See Grant, The LanIa Rule of

Successive Prosecutions, 32 COL. L. REv. 1309 (1932).

Jeopardy, 16 CoRN. L. Q. 201 (1931).

53. KENNY, OuTLN.Es oF CRmiNAL LAW 19 (15th ed. 1946): 54. Note, Public Torts, 35 HARv. L. Rm. 462 (1922). 55. Id. at 463. "The mere term 'fine' or 'punished by fine' in a penal statute does not necessarily imply a misdemeanor. It is otherwise'as to the terms 'fine and imprisonment' and 'fine or imprisonment'." City of Milwaukee v. Ruplinger, 155 Wis. 391, 145 N. W. 42, 43 (1914).

56. See Note, 116 A. L. R. 120 (1938).

Wisconsin cases...'

In Ogden v. City of Madison, 61 the court denied that the violation of a

57. O'Haver v. Montgomery, 120 Tenn. 448, 460-461, 111 S. W. 449 f1908). 58. City of St. Louis v. Ameln, 235 Mo. 669, 139 S. W. 429, 431 ('1911)'. Other cases in which "quasi criminal" means civil are: State v. Rouch, 47 Ohio St. 478 25 N. E. 29 (1890) ; Davis v. City of Guntersville, 27 Ala. App. 208i 169 So. 222 (1936).-

59. City of St. Louis v. Bender, 248 Mo. 113, 154 S. W. 88, 89 (191a). Two other Missouri examples: "a civil action" in City of St. Louis v. Stubley, 154* S. W. 2d 407, 410 (St. Louis Ct. App. 1941) ; "in' its nature a civil action" in City of St.-Louis, v. Fitch, 353 Mo. 706, 183 S. W. 2d 828 (1944).

60. 54.Wis. 487, 11 N. W. 798, 799 (1882). "Quasi- riminal" appears to mean criminal in, State v. Brown, 50 Minn. 128, 52 N. W. 531 (1892) ; Bray v. State, 140 Ala. 172, 37 So. 250 (1904),

-' 1 .

61. 111 Wis. 413, 87 N. W. 568, 573 (1901).

62. 192 Wis. 585, 213 N. W. 335, 338 (1927). 63. Id. at 337. 64. Wis. StAT. § 260.05 (1945). 65. 239 Wis. 82, 300 N. V. 498 (1941). 66. City of Portland v. Erickson, 39 Ore. 1, 62 Pac. 753 (1900). 67. City of Charleston v. Belier, 45 W. Va. 44, 30 S. E. 152 (1898). 68. State ex rel. Erickson v. West, 42 Minn. 147, 43 N. W. 845, 847 (1889). Sec. 610.01 ('MINN. StArs. ANN. 1947) states that "A crime is an act or omission forbidden by law, and punishable upon conviction by death, imprisonment, fine, or other penal discipline.... Every crime punishable by fine not exceeding $100, or by imprisoninent in a jail for not more than 90 days, is a misdemeanor."

THE TEST OF INTENT AS TO SANCTIONS

IMPOSED

74. City of Buffalo v. Neubeck, 209 App. Div. 386, 204 N. Y. Supp. 737, 738-9 (1924). 75. Helvering v. Mitchell, 303 U. S. 391, 400 (1938). 76. Ibid. 77. Mitchell v. Commissioner of Internal Revenue, 89 F. 2d 873 (C. C. A. 2d 1937). 78. Helvering v. Mitchell, 303 U. S. 391, 398 (1938).

CoNCLUSION

STANLEY D. ROSE

79. Id. at 401. 80. Id. at 402. 81. N. Y. SECOND CLASS CrnEs LAW § 42.