Cunningham v. Berry

Thayer, C. J. The appellant herein was tried and convicted in the recorder's court of Milton City, county of Umatilla, Oregon, for an alleged violation of a city ordinance of said city. The complaint under which he was convicted contained the following charge, in substance: “That the appellant did sell, dispose of, and convey to one L. B. Banks one bottle of whisky of a less quantity than one quart. The said selling, disposing, and conveying being and is contrary to the force and effect of section 8, ordinance numbered 3, of said Milton City, entitled ‘An ordinance to regulate and license the sale of spirituous and malt liquors,' said ordinance being approved by the board of trustees of said Milton City on the tenth day of January, A. D. 1888. All of which is contrary to the peace and dignity of the people of Milton, and contrary to the ordinance in such case made and provided." [624] The appellant, upon being arrested, and taken before the said recorder upon the said complaint, filed a motion to dismiss the proceeding upon the ground that the alleged ordinance he wa.s accused of having violated was void; that it failed to show-that it was published as required by the charter. The motion having been overruled, the appellant filed a demurrer to the said complaint, upon ■the grounds that the facts contained therein did not constitute a crime. The demurrer was glso overruled, and the appellant then interposed a plea of not guilty; whereupon a jury trial was had, and the appellant was found guilty, and sentenced to pay a fine of one hundred dollars and costs. He then sued out the-writ of review from said circuit court to review the judgment .of conviction and proceedings had thereon; which said writ, after being returned, the said-circuit court dismissed, upon the ground that an appeal would lie from said-judgment, .and consequently that the writ Of reviewwould not lie. From the last--,mentioned decision this .appeal is taken. The complaint ■upon which the-conviction .was had was pot sufficient. ,A. complaint in-such a case must sqt oiut.tbe fucts.constituting the offense as fully and completely as they are .required to ;b.e set out in .an indictment for a similar •offense against the state. It must .show-that the party .-accused committed ,t!he acts .which the ordinance prohibited. It should have shown in this case, not only that the appellant sold the whisky, hut that he.did so .without having first - obtained a license agreeably to the ■provisons of the ordinance,, apd the time, pf the passage of the ordinance, and the provisions of it shpujd have 'been recited in th.e complaint. The ordinance also has tobe proved where the commission of-the. offense .is defied by a plea of not .guilty, It must be signed by the mayor, after being passed by the hoard, qr.iii case qf his absence from the meeting at which it was passed, then [625] by the chairman thereof (section 3, article 6, of the charter), and must be proved to have been passed by the board of trustees, signed by the mayor or chairman of the board as mentioned, attested and published as prescribed in the charter, or by certified copies thereof under the hand of the recorder and seal of the city. (Section 9, article 5, of the charter.) City officials should understand that a person cannot be arrested, fined, and imprisoned under a city ordinance unless it was regularly passed, and had gone into effect at the time of its alleged violation, and that the proceeding under it must be duly and regularly taken. Whether an appeal will lie from such a judgment of conviction as the one herein depends upon the charter of the city. We have already passed upon that question at this term of court, in Barton v. City of La Grande. I have examined this charter, and am hot able to find any provision therein which authorizes an appeal in such a case. A writ of review, therefore, was the only remedy the appellant was entitled to invoke, and the circuit court should have sustained the one issued in this case. The circuit court, however, seems to have been misled by a former decision of this court, which is referred to and explained in Barton v. City of La Grande, and to have been under the impression that our holding in the former case-was different from what we intended. The decision of the circuit, court must be reversed, and the case remanded to that court, with directions to reverse the judgment of conviction rendered by the recorder’s court, which was- sought to be reviewed, and the appellant will be entitled to his costs and disbursements herein.