Barton v. City of La Grande

• Decision Date: 13 May 1889
• Citation: 17 Or. 577,22 P. 111
• Parties: BARTON v. CITY OF LA GRANDE.
• Court: Oregon Supreme Court

22 P. 111

17 Or. 577

BARTON v. CITY OF LA GRANDE.

Supreme Court of Oregon

May 13, 1889^[1]

Appeal from circuit court, Union county.

(Syllabus by the Court.)

Under the laws of this state an appeal from a judgment of conviction for the violation of a city ordinance, rendered by a tribunal of the city, does not lie unless expressly given by the city charter or by some statute.

Where a right of appeal in such a case is not given as mentioned a writ of review will lie to examine the proceedings had on the conviction, in order to ascertain whether or not the tribunal before whom they were had exercised its functions erroneously, or exceeded its jurisdiction, to the injury of the plaintiff in the writ.

A writ of review in such a case, like a common-law certiorari, only brings up the record, which includes the complaint and proceedings had thereon, and no question of fact determined by the tribunal, or any ruling made by it in the admission of evidence upon an issue of fact, can be considered.

A complaint under a city ordinance, which provides that any person or persons who shall be guilty of any violent riotous, or disorderly conduct, or who shall use profane abusive, or obscene language in any street, house, or place within the city, whereby the peace or quiet of the city is or may be disturbed, shall, upon conviction thereof before the recorder, pay a fine, will not be sufficient to constitute an offense under such ordinance, unless it shows that the act was committed in a street, house, or similar place within the city. The general word "place," as used in the ordinance, must be construed to mean a definite locality within the city, of the same kind or nature as a street or house.

In accordance with these views, held, that the charter of the city of La Grande, in the county of Union, Or., does not confer a right of appeal upon a party convicted of a violation of an ordinance of the city, and consequently that a writ of review will lie in such a case; also, that where the complaint charged that the acts constituting the disorderly conduct prohibited by the ordinance were committed within the city, against its peace and dignity, but did not specify any definite locality therein where they were committed, that the complaint was not sufficient to support a conviction for a violation of such ordinance.

C.H Finn and T.H. Crawford, for appellant.

J.D. Slater, for respondent.

THAYER, C.J.

The appellant herein was tried and convicted in the recorder's court of the city of La Grande for disorderly and riotous conduct. He was charged in the complaint filed against him as follows: "The said Thomas Barton did, on the 19th day of June, 1888, in the city of La Grande, Union county, Or., demean and conduct himself in a disorderly manner by then and there wrongfully and unlawfully striking and beating the said G.C. Schleur with the fist of him, the said Thomas Barton, contrary to section 1 of ordinance No 20, series of 1885, entitled 'An ordinance concerning offenses and disorderly conduct,' and approved August 20, 1885, and against the peace and dignity of the city of La Grande, Union county, Or." To this complaint the appellant filed a demurrer on the grounds that it did not state facts sufficient to constitute a cause of prosecution; also that the court had no jurisdiction, either of the appellant or of the subject-matter. The demurrer having been overruled, the appellant interposed a plea of "not guilty," and of a former acquittal, and upon which plea he was tried, convicted, and sentenced to pay a fine. He then sued out a writ of review from the said circuit court, which, having been duly returned, was by said court, upon motion of the respondent's counsel, dismissed, and from that decision this appeal is taken.

The first question to be considered is whether a writ of review will lie from a conviction in the recorder's court of the city of La Grande for the violation of a city ordinance. That question depends, of course, upon whether or not an appeal is allowed in such case by the charter of the city. The respondent's counsel concedes that unless the charter expressly gives the right of appeal from such a decision none exists; and that the appellant's remedy would then be by writ of review. That undoubtedly is the law. The respondent's counsel, however, claims that certain sections of said charter do expressly give such right, and refers us to sections 43 and 44 thereof. Section 43 reads as follows: "The recorder is the judicial officer of the corporation, and shall hold a court therein, at such places as the council shall provide, which shall be known as the 'recorder's court,' " etc. Section 44 reads: "He shall have jurisdiction of all crimes and offenses defined and made punishable by any ordinance of the city," etc. "He has the authority and jurisdiction of a justice of the peace for the county of Union, within the limits of the city of La Grande, in both civil and criminal matters; and all proceedings in his court shall be governed and regulated by the general laws of the state applicable to justices of the peace and justices' courts in like or similar cases." "His court," says the counsel, "referred to in section 44, is the recorder's court provided for in section 43." Conceding that to be true, it does follow that the right of appeal is given, because all proceedings in "his court" are to be governed and regulated by the general laws of the state applicable to justices of the peace and justices' courts, in like or similar cases. We are not authorized to assume that a right of appeal exists in...