Brown v. Jarvis, Chief of Police

Blume, Chief Justice. Tbe city of Casper belongs to that class of municipalities defined under tbe laws of this state as cities of tbe first class. Guy Brown was convicted in tbe Police Court of said city of tbe crime of unlawfully possessing intoxicating liquor, in violation of tbe ordinances of said city. No fine was assessed against him and tbe only sentence imposed upon him was that be be confined in tbe city jail for tbe period of thirty days. Having been taken into custody, be instituted proceedings for habeas corpus in tbe District Court of Natrona County, 'Wyoming, and that court released him from custody, bolding that tbe laws governing cities of tbe first class do not authorize imprisonment except only for tbe non-payment of fine. Tbe sole question on this appeal, taken by said city, is whether the ruling of tbe court so made is correct. *408 In considering this question, we must not forget that penal provisions are strictly construed (36 Cyc. 1183; 16 C. J. 1360); that they must be construed most favorably to the individual (People v. Sloan, 95 App. Div. 226; 90 N. Y. S. 762), and that where the law governing a city prescribes the particular manner ih which its ordinances are to be enforced, that method is exclusive. Dillon on Municipal Corporations, (4th ed.) sec. 369; 28 Cyc. 781; Blanchard v. Bristol, 100 Va. 469, 41 S. E. 948; State v. Ferguson, 33 N. H. 424.) With these rules in mind, we shall trace the history of legislation defining and relating to cities of the first class. The first act of the legislature relating to cities of that class was chapter 80 of the Session Laws of 1895, subsequently embodied in sections 1587 to 1672, both inclusive, of the Devised Statutes of 1899. The provisions pertinent herein are subdivision 58 of section 1637, and sections 1657, 1671 and 1672, Devised Statutes of 1899. These provisions are as follows: Section 1637, subdivision 58: (Such cities shall have power) “To make all such ordinances, by-laws, rules, regulations and resolutions not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this section granted, maintaining the peace, good government and welfare of the city, and its trade, commerce and manufactures, and to enforce all ordinances, by inflicting penalties for the violation thereof not exceeding one hundred dollars for any offense, recoverable with costs, together with judgment of imprisonment, until the amount of said judgment and costs shall be paid.” Section 1657: “The police justice shall have exclusive jurisdiction over, and it shall be his duty to hear and determine all offenses against the ordinances of the city, and of misdemeanors under the laws of the state, arising within the limits of the city, when the fine which may be imposed does not exceed two hundred dollars, or the imprisonment *409 three months; and he shall also have jurisdiction for the examination of offenders against the laws of the state for offenses arising within the city limits.” Section 1671: “Any person convicted before the justice of any offense under the ordinances of the city shall be punished by such fine or imprisonment as may be regulated by ordinance.” Section 1672: “Whenever the defendant is sentenced to imprisonment for the violation of a city ordinance, he shall be put to work for the benefit of the city, under the direction of the mayor, for the term of his imprisonment, and when committed for the non-payment of a fine, or costs, for the violation of any ordinance, he shall also be put to work for the benefit of the city, and shall be credited on such fine and costs, one dollar and fifty cents per day for each day he shall work.” Subdivision 58 of section 1637, supra, alone gave the city the direct power to enforce its ordinances, and provided the specific method by which that should be done. It authorized the imposition of a fine, limited to the sum of one hundred dollars, and further empowered the city to imprison a defendant until the fine and costs imposed should be paid. Imprisonment, therefore, for any purpose other than to enforce the payment of a fine was not authorized. Bailey v. State, 30 Neb. 855, 47 N. W. 208. And unless the contrary clearly appears from other portions of the law, the method so pointed out must be held to have been intended as the exclusive method for the enforcement of the ordinances of such city. State v. Ferguson, supra. Section 1657, supra, has no bearing on this point. Section 1671, supraj provided that the person convicted before the police justice might be punished by fine and imprisonment as regulated by ordinance. It will *410 be noted tbat no limit whatever was fixed as to the amount of the fine or the imprisonment, and it seems incredible that the legislature intended to give the city authority to imprison for an unlimited time, as might be fixed by ordinance. Hence, the only reasonable construction of that section can be, that it refers back to subdivision 58, supra, which specifically limits the extent of the fine and imprisonment and specifically provides that the imprisonment can be imposed only in case of non-payment of fine. In other words, the imprisonment mentioned in section 1671, supra, must be held to mean the imprisonment referred to in subdivision 58, supra. Section 1672, supra (which is now sec. 1919, W. C. S. 1920), mentions imprisonment as an alternative and separate penalty, as well as imprisonment for non-payment of fine. But the imprisonment there mentioned means, of course, imprisonment lawfully inflicted. The section itself does not provide or purport to provide for or create imprisonment as an alternative and separate punishment, and authority therefor must be found, if at all, in some other provision; but no such other provision has been discovered. It cannot be said that the section just mentioned impliedly provides for the penalty mentioned, for it seems to be the ^established rule that a penalty cannot arise by implication, but must be expressly imposed. 28 Cyc. 781; Fire Department v. Braender, 14 Dailey (N. Y.) 53; Health Department v. Knoll, 70 N. Y. 536; Jones v. Estis, 2 Johnson 379; Bell v. Dole, 11 Johnson R. 173. It would seem, accordingly, that the act of 1895 already mentioned did not authorize imprisonment as a separate penalty for violation of an ordinance. The second act of the legislature relating to cities of the first class was chapter 71 of the Session Laws of 1907. But we do not find that the act evinces a purpose to enlarge in any respect the power of cities of the first class in connection with the point under discussion. The provision in the Revised Statutes of 1899 (sub. 58, sec. 1637), *411 which provided for the method of enforcing ordinances-was not changed in any manner. Section 1671, R. S. 1899, was merely amended by adding the clause: “provided,, no fine shall be greater for any offense than one hundred dollars recoverable with costs, and no imprisonment for longer time than three months. ’ ’ (The section, as so amended, appears as section 1912, W. C. S. 1920). The provision of that section that the penalties should be provided by ordinance remained as before. There was a material change in the wording of section 1657, R. S. 1899, which was amended and re-enacted by section 16 of chapter 71, supra, so as to read as follows: “The police justice shall have exclusive jurisdiction over, and it shall be his duty to hear and determine, all offenses against the ordinances of the city, arising within the limits of the city, when the fine imposed does not exceed one hundred dollars; to which may be added costs or the imprisonment three months. No change of venue shall be granted in any ease arising under the ordinances-of the city.” (The section as so amended appears as section 1902, W. C. S. 1920.) The section, before it was thus amended, gave the police justice jurisdiction not only in cases of violation of the ordinances of the city, but also over misdemeanors under the laws of the state “when the finé which may be imposed does not exceed two hundred dollars or the imprisonment three months.” The amended section left out the provision for jurisdiction over misdemeanors, and still, by a queer process of contraction, left the clause- “or imprisonment three months.” It is clear that the legislature had a definite purpose in amending the section,, namely to deprive the police magistrate of jurisdiction over misdemeanors arising under the laws of the state, but no other or different purpose can be gathered therefrom. The clause “or the imprisonment three months”" as found in the amended section, names a definite period *412 of imprisonment, no more and no less, and we cannot believe tbat tbe legislature intended to fix sucb definite period of imprisonment in ease of conviction for violation of an ordinance. In any event, tbe section as amended does not itself give or purport to give authority to tbe city to enforce its ordinance by tbe alternative and separate punishment of imprisonment, but simply fixes tbe conditions of tbe jurisdiction of tbe justice. Tbe authority for imprisonment must be sought elsewhere. If, however, the legislation so far considered leaves any doubt on tbe point under consideration, tbat doubt will be lifted when we come to consider tbe next act of tbe legislature, and tbe last on this question. Tbat act is chapter 51 of tbe Session Laws of 1909. Tbe chapter made many radical changes in tbe then existing laws relating to cities of tbe first class, and repealed all previous acts in conflict therewith. Section 39 of tbe act, now section 1868, W. C. S. 1920, purports to confer some general and miscellaneous powers upon sucb cities, including power "to prescribe forfeitures and penalties for tbe breach of any ordinance and enforce all ordinances by inflicting penalties for tbe violation thereof, not exceeding one hundred dollars and costs for any offense, together with judgment of imprisonment, or imprisonment and bard labor in the city upon tbe streets or elsewhere for tbe benefit of tbe city, until the amount of sucb judgment and costs are paid.” Tbe provision here set out is somewhat broader than its precursor, subdivision 58, section 1637, R. S. 1899. There is added tbe specified power ‘‘to prescribe forfeitures and penalties for tbe breach of any ordinance, ’ ’ and tbe further provision is made tbat imprisonment, though authorized only for non-payment of fines, may be at bard labor. Tbe provision as a whole is comprehensive, full and complete. There is no indication of any kind tbat *413 it is not intended as the exclusive method for enforcing the ordinances of the city. Its language seems to indicate the contrary. There is nothing in any other portion of said chapter 51 which in any way modifies the quoted provision. The chapter repeals any acts inconsistent therewith, and it would seem that we are necessarily forced to the conclusion that while a city of the first class may impose imprisonment in order to enforce a fine, and until such fine is paid, no other imprisonment is authorized. The judgment of the District Court was accordingly right, and must be affirmed. Affirmed. Potter, J., and Ktmbaub, J., concur.