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THE

Pacific Reporter.

VOLUME XX.

(12 Colo. 94)

CITY OF GREELEY v. HAMMAN.

(Supreme Court of Colorado. December 22, 1888.)

1. APPEAL VIOLATION OF ORDINANCE-RIGHT OF MUNICIPAL CORPORATION. A prosecution for the violation of a municipal ordinance punishable by imprison. ment, but not punishable by general statute, is not criminal, and the corporation is entitled to an appeal therein; Gen. St. Colo. § 689, defining a crime to be a willful or criminally negligent violation of a public law, and an action of debt being the mode of recovery provided for the violation of an ordinance by Rev. St. Colo. p. 615, § 1-3, in force before the enactment of the Code, under which "civil actions" include all ordinary civil proceedings.

2. CONSTITUTIONAL LAW-CRIMINAL PROSECUTIONS.

The phrases "criminal prosecution, ""criminal case," etc., as used in the constitution, do not refer to prosecutions which were not criminal at the time of its adoption, or have not since been declared criminal by statute.

Error to county court, Weld county.

Hamman was prosecuted for violation of a city ordinance prohibiting the sale of intoxicating liquors. A conviction took place before the police magistrate; but on the trial in the county court, to which an appeal had been taken, the ordinance under which the prosecution took place was held void, and the action was accordingly dismissed. To review the final judgment thus rendered the present writ of error was sued out by the city, which Hamman moves to dismiss.

J. E. Garrigues and H. N. Haynes, for plaintiff in error. J. M. Freeman and J. W. McCreery, for defendant in error.

HELM, J. The specific question presented at this time upon the record before us may be stated as follows: Can a municipal corporation take a writ of error to review a judgment for defendant in an action for violation of a city ordinance, the penalty for which may be fine or imprisonment,-the alleged offense not being punishable under the provisions of any existing general statute?

It is contended that prosecutions, under circumstances such as are here presented, are criminal, and that they should be governed by the rules regulating criminal procedure and practice. It is also contended that in no criminal case can the people or the prosecution take a writ of error. If we shall determine, upon examination, that such proceedings are not criminal prosecutions, counsel's motion to dismiss must be denied. To the consideration of this question we therefore address ourselves. Blackstone defines a crime or misv.20p.no.1-1

demeanor to be "an act committed or omitted in violation of a public law either forbidding or commanding it." This definition has been substantially adopted by all the decisions and text writers. But we are not compelled to depend upon text-books or decisions for a definition, as one has been given by our legislature. Section 689 of the General Statutes reads as follows: "A crime or misdemeanor consists in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention or criminal negligence." Since felonies are defined in the constitution to be offenses punishable by death or imprisonment in the penitentiary, it follows that, under the foregoing statute, misdemeanors are violations of the public laws not thus punishable.

Universally, we believe, in the absence of an express statutory definition to the contrary, crimes and misdemeanors are held to exist only where there has been a violation of a public law. Such must be the position here taken, in view of the foregoing legislative declaration. But an ordinance is not a public or general law; it is not taken judicial notice of in suits or actions, but must be pleaded and proven; it is a local rule or by-law; a police regulation for the city; and proceedings thereunder are penal actions for the enforcement of local "domestic regulations." Cooper v. People, 41 Mich. 403, 2 N. W. Rep. 51; Garland v. City of Denver, 11 Colo. 19 Pac. Rep. 460; Shafer v Mumma, 17 Md. 331; People v. Board, 26 Mich. 422; Hughes v. People, 8 Colo. 539, 9 Pac. Rep. 50; Williams v. City of Augusta, 4 Ga. 509; Williams v. Davidson, 43 Tex. 35. At common law, ordinances were enforced by actions of debt or assumpsit; and where the common-law practice does not exist, and no specific method of procedure is prescribed, the ordinary "civil action" is the remedy. 1 Dill. Mun. Corp. §§ 409, 410; Horr. & B. Mun. Ord. §§ 168, 169. In general, proceedings for the violation of municipal ordinances are held to be civil actions, governed by the principles of law and rules of evidence pertaining to civil procedure. But a few exceptions to this general rule have been recognized by courts of most excellent standing, and it is contended that the present case falls within at least two of these exceptions.

The first exception relied on by counsel will not be considered, as, in our judgment, it is wholly inapplicable. There is no general statute authorizing a prosecution by indictment or information for the precise act prohibited by the ordinance before us, or in any other way recognizing such act as criminal. The legislative provision inhibiting the sale of liquors without a license, in less quantities than a quart, is not identical with the absolute prohibition by ordinance, except upon prescription, of the sale thereof in any quantity. Hill v. Mayor, 72 Ga. 314. Besides, the statute mentioned is wholly inoperative in Greeley, as by general law the exclusive control of the subject is conferred upon towns and cities.

Counsel's remaining contention is that since a party, convicted under the ordinance before us, may be punished by imprisonment, the proceeding must be criminal. We are of the opinion that, under the authorities, where a judgment against the defendant for violation of an ordinance entails a fine, even though the collection of such fine may, by virtue of the statute and ordinance, be enforced by imprisonment, the proceeding remains a civil action; and this is true whether it be in the name of the state or not. City of Oshkosh v. Schwartz, 55 Wis. 487, 13 N. W. Rep. 552; Platteville v. Bell, 43 Wis. 488; State v. Smith, 52 Wis. 134, 8 N. W. Rep. 870; Chafin v. Waukesha Co.,62 Wis. 463, 22 N. W. Rep. 732; Baldwin v. City, 68 Ill. 418; Ex parte Hollwedell, 74 Mo. 395. But where the judgment, when against defendant, may, as under this ordinance, include imprisonment in the first instance, the question becomes more embarrassing. In one treatise, at least, it is squarely asserted that, under such circumstances, the proceeding must be held criminal, and must be governed by the principles and rules pertaining to criminal ac

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