Delaney v. Police Court of Kansas City

• Decision Date: 19 March 1902
• Parties: DELANEY, Appellant, v. POLICE COURT OF KANSAS CITY et al
• Court: Missouri Supreme Court

67 S.W. 589

167 Mo. 667

DELANEY, Appellant, v. POLICE COURT OF KANSAS CITY et al

Supreme Court of Missouri

March 19, 1902

Appeal from Jackson Circuit Court. -- Hon. Roland Hughes, Special Judge.

Affirmed.

John F Delaney, pro se, John M. Parry and Shelley Grover for appellant.

(1) "The terms of a special law are not ordinarily regarded as repealed by a later law of a general nature on the same subject. To thus effect a repeal such an intent must be clearly manifested in the latter." State ex rel. v Frazier, 98 Mo. 429. "Repeals by implication are not favored or allowed unless the first act be so inconsistent as not to stand with the subsequent act." Glasgow v. Lindell's Heirs, 50 Mo. 60; State ex rel. v. Severance, 55 Mo. 378. (2) (a) Sections 598 and 584, Revised Ordinances, state that "any person violating, failing, neglecting, or refusing to comply with any provision, regulation or requirement of this chapter shall be deemed guilty of a misdemeanor." The terms "crime," "offense," and "criminal offense," when used in this or any other statute shall be construed to mean any offense, as well misdemeanor as felony, for which any punishment, by imprisonment or fine, or both, may be by law inflicted. R. S. 1899, sec. 2396. The said word "crime" of itself includes every offense from the highest to the lowest, "misdemeanors" as well as treason and felony. Kentucky v. Dennison, 24 Howe 717. All crime less than felony is termed misdemeanor. Bishop's New Criminal Law, 382. The word "misdemeanor," in its usual acceptation, is applicable to all those crimes and offenses for which the law has not provided a particular name; and they may be punished according to the degree of the offense, by fine, or imprisonment, or both. A misdemeanor is, in truth, any crime less than felony; and the word is used in contradistinction to felony. Misdemeanors comprehend all indictable offenses which do not amount to felony, as perjury, battery, libels, conspiracies and public nuisances. Russell on Crimes (3 En. Ed.), 45. (b) Section 699, Revised Ordinances, states that "all cases triable before such judge shall be proceeded with in the same manner as trials before justices of the peace for misdemeanors." Secs. 2769, 2770 and 2780, R. S. 1899. (c) Section 31, article 2 of the Constitution of Missouri, and the thirteenth amendment to the Constitution of the United States, each prohibit either slavery or involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted. If these constitutional provisions amount to anything at all, then the condition of a citizen in a state of involuntary servitude should be an infallible sign that he had been guilty of a crime and had been "duly convicted." On her own admission Kansas City conducts a prison; imprisons citizens and compels them to work for her, regardless of the Constitution of the United States and of the Constitution of Missouri, if they are not guilty of crime; and if they are guilty of crime, without due process of law, and without any protection at all. (3) The writ of prohibition may be issued when, having jurisdiction, the court has attempted to proceed by rules differing from those which ought to be preserved, or when, by the exercise of its jurisdiction, the inferior court would defeat a legal right. 3 Black Com., 112; 2 Bouv. L. D. 377; 2 Chitt. Pr., 355.

R. B. Middlebrook for respondents.

(1) The repeal of the old charter provision and the old ordinances was sufficiently definite and adequate to accomplish the purposes for which it was designed. It is well settled that an affirmative enactment of a new rule implies a negative of what is not included. Butler v. Sullivan County, 108 Mo. 630; State ex rel. v. Woodson, 128 Mo. 512; Sutherland on Statutory Const., sec. 154; Ex parte Joffee, 46 Mo.App. 365; Webb v. Lumber Co., 68 Mo.App. 546; State ex rel. v. Wardell, 153 Mo. 319; Mack v. Jastro, 58 P. 372, 126 Cal. 130; Fisk v. Henarie, 142 U.S. 459; King v. Correll, 106 U.S. 395; District of Columbia v. Hutton, 143 U.S. 18; Rogers v. Railroad, 62 U. S. App. 697, 91 F. 299; U. S. v. Tyner, 11 Wall. 88; State v. Stadt, 31 Kan. 245; Mersereau v. Mersereau Co., 57 N.J.Eq. 382; Anderson v. Camden, 58 N. J. L. 515; Petroleum Co. v. Embury, 67 Barb. 261; In re N. Y. Institute Deaf and Dumb, 121 N.Y. 234; Rogers v. Watrous, 8 Tex. 62. (2) The contention of appellant in his brief that the provisions of the Federal Constitution and of the Constitution of Missouri are violated, because, as he contends, under the charter and ordinances of Kansas City, there is no provision for a jury trial in the police court, can not be maintained. The defendant was arrested for one of those minor offenses, which are in no sense crimes, the charge being that he unlawfully and willfully made and countenanced and assisted in making a noise, disturbance and improper diversion, and "was also found in a state of intoxication," in other words he was, what is called in police court parlance, "drunk and disorderly." Whatever contrariety of views may be entertained as to the more serious infractions of law, it is universally settled that offenses of this kind, charged against defendant (being simply violations of municipal by-laws) are rightfully and lawfully tried by the police judge without the intervention of a jury, such offenses not being "crimes," as that term is used in constitutions. Ex parte Kiburg, 10 Mo.App. 442; Callan v. Wilson, 127 U.S. 540; Ex parte Hollwedell, 74 Mo. 395; Williams v. Augusta, 4 Ga. 509; Vason v. Augusta, 38 Ga. 542; State v. Guttierrez, 15 La. An. 190; Tierney v. Dodge, 9 Minn. 169; Byers v. Commonwealth, 42 Pa. St. 89; 1 Bish. on Criminal Pr., sec. 758; State v. Conlin, 27 Vt. 318; McGear v. Woodruff, 33 N. J. L. 213; Howe v. Plainfield, 8 Vroom (37 N. J. L.) 145; People v. Justices, 74 N.Y. 406; State v. Lee, 29 Minn. 445; Mankato v. Arnold, 36 Minn. 62; Ex parte Schmidt, 24 S.C. 363; Moundsville v. Fountain, 27 W.Va. 204; Hill v. Mayor of Dalton, 72 Ga. 314; Dively v. Cedar Falls, 21 Iowa 565; State v. Topeka, 36 Kan. 76; Monroe v. Mauer, 35 La. An. 1192; 1 Dillon on Municipal Corp. (4 Ed.), secs. 411 and 428. "In a prosecution to recover a penalty for violating a city ordinance, an arraignment and plea are unnecessary, since such a proceeding is not a criminal prosecution." City of Lexington v. Curtin, 69 Mo. 626; St. Louis v. Knox, 74 Mo. 79. Our own Supreme Court has decided many times that a violation of our municipal bylaws or ordinances is not a "crime," as that term is used in the Constitution. Stevens v. Kansas City, 146 Mo. 460; State ex rel. v. Renick, 157 Mo. 293; 1 Dillon on Mun. Corp. (4 Ed.), sec. 433. The power to dispose of them summarily was undoubted. 2 Beach on Public Corporations, sec. 1284. "It is well settled that such is the law, the constitutional law; for if no man could be fined or imprisoned for violation of a city police ordinance, except by a jury trial on indictment, away would go all power in our municipal authorities to preserve peace and good order within their corporate limits." Hill v. Dalton, 72 Ga. 314; U. S. v. Green, 19 D. C. 230. Where no provision is made for jury trials of municipal offenses in cities of the fourth class, it is to be taken that the Legislature has not intended there shall be jury trials in such municipalities and it is competent for the Legislature to provide for a trial in this summary way. City of Marshall v. Standard, 24 Mo.App. 192; State v. Bockstruck, 136 Mo. 335; City of Mt. Sterling v. Holly (Ky.), 57 S.W. 491; State v. Kennie, 60 P. 580; State v. Glenn, 54 Md. 572; Steamboat Co. v. Foster, 5 Ga. 194; Ross v. Irving, 14 Ill. 171; Anderson v. Caldwell, 91 Ind. 454; Allen v. Anderson, 57 Ind. 388; State v. McClear, 11 Nev. 39; Frazee v. Beattie, 26 S.C. 348; Stillwell v. Kellog, 14 Wis. 461. (3) If there was any doubt left on the proposition that it is lawful and permissible to conduct municipal police courts without jury trials, it would be dispelled by virtue of the provisions in the Kansas City charter providing for an appeal to the criminal court of Jackson county, Missouri, in all cases determined by the police judge. The language of the charter on this point is as follows: "Appeals in all cases tried by him as police judge shall be taken to the criminal court of Jackson county, Missouri, at said city." Sec. 17, article 4, charter 1889. "It has been decided by the courts in several of the States that although the charge or matter in the municipal or local courts be one in respect of which the party is by the Constitution entitled to a trial by jury; yet, if by an appeal, clogged with no unreasonable restrictions, he can have such a trial as a matter of right, in the appellate court, this is sufficient, and his constitutional right to a jury trial is not invaded by the summary proceeding in the first instance." 1 Dillon on Municipal Corp. (4 Ed.), sec. 439; Stewart v. Mayor, 7 Md. 501; Morford v. Barnes, 8 Yerger (Tenn.), 444; McDonald v. Schell, 6 Serg. & Rawl. (Pa.) 240; Beers v. Beers, 4 Conn. 535; Jones v. Robbins, 8 Gray (Mass.) 329; Dorgan v. Boston, 12 Allen (Mass.) 235; Sedg. Stat. and Const. Law (2 Ed.), pp. 491, 496 and 497; Cooley Const. Lim. (6 Ed.), p. 505; Emporia v. Vollmer, 12 Kan. 631. (4) By the terms of sections 10 and 11 of the old ordinances which appellant invokes in his behalf, a requirement is made that when a jury is called for the defendant he shall make a deposit sufficient to cover the expense of the jury. Appellant does not claim to have made or tendered any such deposit; hence, even under the old ordinances appellant would not be entitled to a jury.

OPINION

In Banc

MARSHALL J.

This is an appeal from a judgment of the circuit court of Jackson county,...