People ex rel. Fennell v. Common Council

Campbell, J: The relator, who prosecutes as county treasurer of Bay county, asks a mandamus to compel the city authorities to pay over such funds as have been paid into their treasury upon fines collected for violations of city by-laws, on prosecutions before the recorder. The ordinances under which these fines were collected were all passed to punish various kinds of disorderly persons and conduct, most of which were to some extent also placed under condemnation of some 'kind by state law, and some of which are punished more or '.less severely by statute. In one instance the statutory punishment is the same with that under the by-laws. The defense is, that these collections were not made ■under the “penal laws” of the state, but under the city ordinances. The constitution declares that “all fines assessed and collected in the several counties and townships for any ¡breach of the penal laws,” shall be exclusively applied to ■the support of libraries. — Art. XIII., § 12. This provision does not differ from that in the constitution of 1835, except that by that certain militia exemption moneys were included in the same fund. That constitution declared that “the clear proceeds of all fines assessed in the several counties for any breach of the penal laws shall be exclusively applied to the support of such libraries.”— Art. X., § 4. The only statutes ever passed on the subject were passed .under the old constitution, and appropriate not only “fines .for any breach of the penal laws of this state,” but also penalties and forfeitures imposed by law or collected under .recognizances. — Chapter 128 of B. 8. of 1846, entitled •“ Of the collection of penalties, forfeitures and fines, and of jforfeited recognizances,” section 41; also section 116 of the ’Primary School Act, p. 233. These provisions have remained unchanged, the chapter ion the collection of penalties, etc., never having been modi [189] fied, and the section in the primary school act having been, re-enacted. — C. L., § 3673. These are the only laws which require such moneys to-be paid over to the county treasurer. The constitution says-nothing about it. The laws then and since have recognized, a distinction between penal forfeitures for the violation of' the laws of the state for the preservation of the public; order and enforced by the state authorities, and the multitudinous forfeitures under contracts, taxes, highway laws; and other statutes, where a liability arises to incur penalties, to the state or local interests or private parties aggrieved, where the omissions of duty have not been treated as coming within the category of criminal conduct, but partake-of the nature of a civil grievance or of a merely local wrong.. There has never been any law requiring such moneys to be-paid to the county treasurer. By the charter of Bay City, all fines imposed by any by-law or ordinance of the common council may be sued for by the city attorney in the name of the corporation (see. 57) before the recorder or police justice. The city may remit any such fines (see. 61), and it is declared that “all fines, penalties or forfeitures recovered before the recorder and police justice shall, when collected, be paid into the-city treasury, to be appropriated as the council may direct., —Sec. 67. By section 55 the powers belonging to the person designated as “police justice” in that capacity are declared to be additional to his powers as a justice under the general laws of the state, and the recorder’s judicial powers are those of a police justice, as prescribed by the charter (sec. 31), while his general duties are not judicial. There can be no doubt whatever of the intention of the legislature to distinguish fines and penalties under the bylaws from those under state laws, and to dispose of them differently. The law evidently regards them as imposed to-redress mischiefs injurious to the local interests. If these fines belong to the library fund, it must be because the [190] charter is in that respect unconstitutional, and because the city by-laws are penal laws in the sense of the constitution. ■ There can be no ground for distinguishing one by-law from another in this regard. If the delegation of authority from the state to impose such consequences renders these provisions penal laws, no difference is found in the charter between any classes of acts which come within the control of the council. Whatever they can regulate by ordinance, they can and must regulate in the same way — having a discretion as to the amount of penalties, but none to distinguish between their effect when imposed. If the punishment is fixed by the by-laws, the penalties for whatever purpose must stand on one footing. The whole power is derived from the same sections of one charter. It so happens that on some subjects contained in these ordinances there is state legislation also, and in one instance it is identical in substance with the ordinances (in regard to a class of drunkards), but it cannot be claimed that a state prosecution could be interfered with or the penalty remitted by the corporation. How far a double jurisdiction may lawfully go in such cases, is a question not before us. But with this one exception, the city ordinances either punish by fine that which the state has not so punished, or impose punishment very different in degree. The charter does not permit most misdemeanors to be punished by ordinance as severely as under the state laws, and the penalties are very different, and the whole system is aimed at furthering local interests and redressing wrongs against the municipal policy. We have heretofore on more than one occasion intimated that the penal laws referred to in the state constitution were the laws of the state. The term law, as defined by the elementary writers, emanates from the sovereignty and' not from its creatures. The legislative power of the state is vested in the state legislature, and their enactments are the only instruments that can in any proper sense be called laws. In the decisions of this court referring to the class [191] of provisions now before us, the distinction has been very expressly indicated.—Wayne County v. The City of Detroit, 17 Mich. R., 390; People v. Controller of Detroit, 18 Mich., 445; Mixer v. Supervisors of Manistee County, 26 Mich., 422. It is claimed, however, that certain of th,ese fines may be regarded as imposed under the laws of the state, and the cases in the 17th and 18th Michigan are cited for that purpose. Those cases, however, are very different. There the city charter, which ivas itself a state law, authorized the police court, which had no jurisdiction whatever to impose any penalties in the cases in question but those defined by the law itself, to deal with those particular cases and punish them as the statute directed. The authority was distinctly statutory, and the penalties were neither imposed nor governed by the ordinances. The only important question involved was, whether special provision could be made for ■punishing unlawful acts in a single city; and that was decided to be lawful. We have not been able to discover in any of the acts governing Bay City provisions analogous to those in the Detroit acts. The Detroit police court was not created by the charter, but by an independent statute passed under the old constitution and continued in force by the schedule to the present constitution. Its duties are the same in substance with those of justices in criminal cases, and are almost exclusively confined to dealing with criminals against state laws. The provisions referred to were part of a new police system. The recorder’s court of Bay City is organized under the charter for city purposes, and nothing has been done to give it any special powers over peculiar classes of misconduct, punishable by statutory penalties. . The case seems to present no features different from what would appear where the penalties were imposed for any act forbidden by ordinance, whether involving serious and general considerations or relating to local convenience. Some very interesting questions are discussed in the argu [192] ments, but the only question of moment is, whether this money belongs in the county treasury for distribution. If it does not belong there, the relator is not concerned in its uses, and cannot inquire into its sources or its disposition. We think the mandamus should be denied, without costs to either party. The other Justices concurred.