Jaquith v. Royce

Adams, J. The first section of ordinance No. 40 provides “that no cow or other cattle shall be permitted to run at large within the city limits, between the hours of 9 o’clock, p. m. and 5 o’clock, a. m., * * * and that it shall be the duty of the city marshal to take up upon complaint of any citizen any cow or cattle found running at large.” Sec. No. 6 provides that, “If any person shall break open in any manner, directly or indirectly, any pen or inclosure with the intent of releasing any animal confined therein pursuant to the provisions of this articlé, every such person on conviction shall for such offense be fined in a sum of not less than ten dollars, and not more than one hundred dollars.” The information, after reciting the ordinance, alleges “ that the city marshal took up and placed in a pound or inclosure as in said ordinance provided, a certain cow then and there being the property of the defendant, O. F. Jaquith, and that on the 23d day of July, 1875, the said cow being confined in said pound and inclosure, the said defendant did break open said pound and inclosuro with intent of releasing the said animal therefrom, contrary to the provisions of said ordinance.” I. The appellee contends that the violation of an ordinance of a city providing a penalty of a fine is not a crime, and that, therefore, the plaintiff was not liable to be arrested, but was only liable to be subjected to a civil proceeding. Such is not our view. i. cbimihat. pal corporanance. In the case of The State v. Stearns, 11 Foster (N. H.), 106, complaint was made-against a person for keeping a bowling alley without license, in violation of a city ordinance. Upon a question ot costs which arose, it was held that the proceeding was criminal and not civil. Bell, J. said: “ The question whether a legal proceeding is to be deemed civil or criminal or as partaking of the nature of civil and criminal proceedings is to be deter [409] mined by the consideration whether the law is designed to suppress and punish a public wrong, an injury affecting the peace and welfare of the convmuniiy and the general security, or whether it is designed merely to afford a remedy to an individual for an injury done to his person or property. * * * The present case is one of a prosecution for an offense made penal by a city ordinance because of its supposed evil consequences to society. It has no relation to any individual wrong and the remedy prescribed is such as indicates a criminal proceeding. It is prosecuted by a public officer as a part of his official duty, but might be prosecuted by any other person as well. The fine is payable to the city but not to compensate any wrong to the corporation. * * * The case, then, seems to us to lack all the indicia, of a civil action, and to be in fact, as it appears, a criminal prosecution.” In Nathaniel Goddard, Petitioner, etc., 16 Pick., 504, the defendant was prosecuted for neglecting and refusing to remove snow from the sidewalk in a street in the city of Boston adjacent to his land, in violation of a by-law of the city imposing a penalty of a fine. Shaw, Oh. J., said: “There is no difference in principle between a prosecution for breach of a by-law made to promote the health, safety and convenience oí a large city, and a like prosecution for nuisance or other misdemeanor made such by common law or statute. In both cases the law is made by competent authority, the object of i1 is the health, comfort and safety of the community, and in both cases a violation of it is a public wrong.” It appearing, therefore, that where a city ordinance is made to promote the public peace, safety and convenience, and pro vides for a penalty of a fine, the violation of the ordinance is a public offense, and the guilty party is liable to a criminal prosecution, we proceed to inquire before what tribunal the guilty party can be tried. 2 JURISDICTION: justice ínayoi\1>eace' The ordinance providing the penalty does not prescribe the tribunal; but it does not follow that no tribunal whatever has jurisdiction of the case. Sec. 4660 of the Code provides: “Justices of the peace have jurisdistion of, and must hear, try and determine all [410] public offenses less than felony,” etc. It would, therefore, doubtless be conceded that the justice on whose warrant the plaintiff was arrested had jurisdiction, unless his jurisdiction is excluded by Sec. 506 of the Code, which is as follows: “The mayor of each city or incorporated town shall be a magistrate and conservator of the peace and within the same have the jurisdiction of a justice of the peace in all matters civil and criminal arising under the laws of the State or the ordinances of such city or town.” By said section it will be seen that the jurisdiction of the mayor is not expressly made exclusive. By Sec. 4499 of the Eevision, the jurisdiction of the mayor in prosecutions of this kind was expressly made exclusive. The provision being repealed and not re-enacted, we must presume that the legislature did not intend to make the jurisdiction of the mayor exclusive. It follows that the justice of the peace upon whose warrant the plaintiff was arrested had jurisdiction to try the case; and, if so, he had power to issue the warrant and, as an incident to that power, to detain the defendant in custody until he should be tried. That is the restraint of which the plaintiff complains as illegal, and from which he was discharged. It will be observed that the question does not arise in this case as to'whether a justice of the peace can impose imprisonment instead of a fine as a penalty for the offense, in the absence of an ordinance providing such penalty, nor does the question arise as to whether, in case a fine is imposed, a justice of the peace has power to commit in default of payment thereof. The imprisonment in this case was neither the penalty for the offense, nor the means of enforcing payment of a fine. It was simply incident to the arrest, and the arrest was the proceeding whereby the justice of the peace acquired jurisdiction of the pierson. 3. oBiMijiAx, law: city orciinance. II. It is contended by the appellee that the act which it is alleged in the information that the plaintiff committed was not a violation of any ordinance. The plaintiff’s t . , act consisted in breaking into the pound or indosure where his cow was confined, with intent to release her. It .is contended by him that while the ordinance prohibits [411] breaking into a pound or inclosure with the intent to release other animals, it does not prohibit breaking into a pound or enclosure with intent to'release a cow. The ordinance expressly provides that the 'marshal shall “ take up any cow or .cattle running at large.” It also expressly provides for taking up and confining in a pen, pound or other place provided for that purpose certain animals, among which a cow is not enumerated. It seems to us, however, that the duty imposed upon the marshal of “ taking up ” a cow, necessarily includes the idea of confining her. If so, then the breaking open of the pen, pound or inclosure was a violation of the ordinance. Beversed.