City of Puyallup v. Snyder

The opinion of the court' was delivered by Gordon, J. The appellant is a city of the third class organized and existing under the provisions of the act- of March 27, 1890. It instituted proceedings before the police justice of said city charging the respondent with the sale of intoxicating liquor contrary to the provisions of its ordinance upon the subject. Said ordinance provides a fine not to exceed ninety-nine dollars as a penalty for its violation. . The respondent upon being arraigned before said police justice, duly presented an affidavit and a request for a change of venue. It is conceded that said affidavit [573] was sufficient in form and substance. His application for a change of venue having been denied, he was found guilty and fined thirty dollars and costs by said police justice. Thereafter a writ of certiorari was issued from, the superior court of Pierce county requiring such justice to certify and send thereto a transcript of the proceedings, and subsequently said superior court set aside the judgment of said police justice, upon the ground that said justice erred in refusing to grant respondent’s application for a change of venue. From the judgment and order of the superior court vacating and setting aside said conviction the case is brought here upon appeal. In the present condition of the record, we are called upon to determine a single question. It is whether a change of venue lies from a police justice of a city of the third class in this state to a justice of the peace within said town or city. We think that the right exists. Section 1468, Code Proc., is as follows: “ If, previous to the commencement of any trial before a justice of the peace, the defendant, his attorney or agent, shall make and file with the justice an affidavit that the deponent believes that the defendant cannot have an impartial trial before such justice, it shall be the duty of the justice to forthwith transmit all papers and documents belonging to the case to the next nearest justice of the peace in the same county,- ...” and’ §25, Code Proc., confers upon justices of the peace “jurisdiction over all criminal cases coming under any city or town ordinance.” Section 657, Gen. Stat., being § 138, of the act of March 27, 1890, relating to charters of cities of the third class in this state, and providing for the election in such cities of a police justice, contains this provision: [574] “All civil or criminal proceedings before such justice of the peace, under and by authority of this chapter, shall be governed and regulated by the general laws of the state relating to justices of the peace and to their practices and jurisdiction, and shall be subject to review in the court of the proper county by certiorari or appeal, the same as in other cases. All officers elected by the council are subject to removal by that body at any time, . . . ” We think it quite clear from a consideration of the foregoing provisions of the statute, that, in a proceeding before a police justice for a violation of a city ordinance, the party charged is entitled to a change of venue as a matter of right, upon making the affidavit contemplated by § 1468, supra. Our conclusion, therefore, is that the superior court did not err in vacating and setting aside the judgment of conviction entered by the police justice of respondent city, and the judgment and order appealed from will be affirmed. Hoyt, C. J., and Anders, Scott and Dunbar, JJ., concur.