Brooks v. Town Of Potomac

• Decision Date: 19 January 1928
• Parties: BROOKS. v. TOWN OF POTOMAC.
• Court: Virginia Supreme Court

141 S.E. 249

BROOKS.

v.TOWN OF POTOMAC.

Supreme Court of Appeals of Virginia.

Jan. 19, 1928.

Error to Circuit Court, Arlington County.

Prosecution by the Town of Potomac against Alfonso Brooks for unlawfully operating a motor vehicle in a reckless manner, in violation of an ordinance. Judgment convicting defendant in mayor's court was affirmed on appeal to the circuit court, and defendant brings error. Affirmed.

Chas. C. Collins, of Covington, and Emery N. Hosmer, of Clarendon, for plaintiff in error.

William C. Gloth and Walter U. Varney, both of Clarendon, for defendant in error.

WEST, J. This is a prosecution by the town of Potomac against Alfonso Brooks for unlawfully operating a "motor vehicle in a reckless manner (speeding) in violation of an ordinance of the town." The warrant was issued and the case tried by William Kleysteuber, mayor of the town of Potomac.

Alfonso Brooks, hereinafter called defendant, was found guilty, and adjudged to pay a fine of $10 and $10 costs. From this judgment an appeal of right was taken to the circuit court of Arlington county, where the case was tried de novo. Neither side demanding a jury, all matters of law and fact were submitted to the judge of the court for his decision. The defendant moved the court, in writing, that he be dismissed because William Kleysteuber, mayor of the town of Potomac, was disqualified under the Fifth and Fourteenth Amendments to the Constitution of the United States to try the case, by reason of pecuniary interest in convicting the defendant, and because he occupies two inconsistent positions, one partisan and the other judicial. The town of Potomac demurred to the motion, and the court, having heard the evidence, sustained the demurrer, and affirmed the judgment of the mayor's court. To that judgment this writ of error was awarded.

It is not contested that, under the evidence, the defendant is guilty of unlawful speeding, as charged in the warrant.

The assignments of error involve the one question: Do the statutes of Virginia and the ordinances of the town of Potomac, Va., in providing for the trial by the mayor of a person accused of violating an ordinance of the town, deprive the defendant of due process of law and violate the Fourteenth Amendment to the Federal Constitution, on account of the monetary or other interest which the statutes and ordinances give him in the result of the trial?

The town of Potomac was incorporated by an act of the General Assembly of Virginia, approved March 13, 1008 (Acts 1908. c. 273). Section 10 of the act provides as follows:

"In addition to the powers named hereinbefore, the said town and its officers shall have all the powers and privileges and be subject to all the restrictions provided by the general laws of this commonwealth for the government of towns and the powers of the officers of towns."

Code of Virginia 1924, § 3011, provides that:

"The mayors of towns shall be clothed with all the powers and authority of a justice in civil and criminal matters within such town, and shall also have power to try all prosecutions, cases and controversies which may arise under the by-laws and ordinances of the town, and to inflict such punishments as are provided by law, with the right of appeal to the circuit court in all cases. * * * "

Code 1924, § 3504, reads, in part, as follows:

"Fees prescribed by law for services of attorneys for the commonwealth, clerks of courts, and justices of the peace, and fees and mileage prescribed by law for sheriffs, deputy sheriffs, * * * in all cases of felony, and in every prosecution for a misdemeanor, if not paid by the prosecutor, or in cases of conviction, by the defendant, and in cases where there is no prosecutor and the defendant shall be acquitted, or convicted and unable to pay the costs, shall be paid out of the State treasury unless now or hereafter otherwise provided by law, when certified as prescribed, * * * subject, however, to the following restrictions and limitations: One-half the fee prescribed by law to the officers heretofore mentioned, except the attorney for the Commonwealth and clerk of court, who shall have the full fee. * * *" (Italics ours.)

Under Code 1024, § 3507, the fees of justices of the peace in counties and towns are, for issuing warrant of arrest, $1; for trying or examining a case of misdemeanor, $2; for examining a charge of felony, $2.

The act of the General Assembly of Virginia, approved March 25, 1926 (Acts 1926, c. 474), known as "the Uniform Act Regulating the Operation of Vehicles on Highways, " was, on August 16, 1926, adopted by the council of the town of Potomac as an ordinance of the town. Under section 67 of this act, the penalty for reckless driving is fixed, for the first offense, at a fine of not less than $10 nor more than $100.

Section 3, c. 10, Ordinances of the Town of Potomac, provides:

"The mayor and town sergeant shall receive the same fees in prosecutions of violations of town ordinances and other offenses over which said officers may exercise jurisdiction, as are allowed to constables and justices of the peace by law in like cases."

This is a writ of error to the judgment of the circuit court, and not to the judgment of the mayor's court. No assignment of error or bill of exception was necessary to get the case into the circuit court; and the record does not show any ruling by the mayor, except his judgment against the defendant, nor that any evidence was introduced before him except for the town. The statute gave the defendant an appeal of right to the circuit court, and by exercising that right he set at naught the judgment of the mayor as completely and effectively as if it had never been rendered. Under the statute, the mayor could enter no judgment against him which would ever become final, without his acquiescence or consent. He might have declined to take any part in the trial before the mayor, and, in the event that the judgment was against him, taken an appeal to the circuit court, as he did do, where his case was tried de novo. He was presumed to be innocent, and was entitled to the benefit of every right and guarantee which would have been his had his case originated in the circuit court. He waived his right to a trial by jury, and submitted his case to a fair and impartial judge, who had no interest in the result of the trial, for his decision and judgment.

In Brown v. Epps, 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676, the court was called upon to construe sections 4106, 4107, and 4108 of the Virginia Code of 1887. Section 4106, as amended by act approved February 23, 1894 (Acts 1893-94, c. 369), gave justices of the peace and police justices concurrent jurisdiction with the county and corporation courts in certain criminal cases. Sections 4107 and 4108 gave the person convicted the right of appeal from the decision of the justice to the county or corporation court. Article 1, § 8, of the Constitution of Virginia, provides:

"That * * * a man hath a right * * * to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty."

Brown was convicted of petit larceny in the police court of the city of Richmond, and sentenced to jail for 15 days. He did not take an appeal from that judgment, but filed a petition for a writ of habeas corpus charging that he had been denied his constitutional right to trial by jury, and was illegally detained in jail. In the course of his opinion Judge Keith, speaking for the court, at page 731 (21 S. E. 120), said:

" * * * A statute which confers jurisdiction upon a justice of the peace to try such offenses as are embraced in section 4106 of the Code is constitutional, provided by a simple procedure a trial by a jury can be had on appeal to a higher court. 3 Amer. and Eng. Enc. of Law, p. 731, and volume 4, pp. 812 and 813. The law so stated in Bishop on Criminal Procedure, § 893; Sedgwick on Construction of Statutes, 497."

Further, at page 737 (21 S. E. 122), Judge Keith says:

" * * * The proceeding against them before the justice was in the nature of the jurisdiction exercised by an examining court, unless acquiesced in by them, and it was merely a preliminary, and not an unreasonably dilatory preliminary to the final trial by jury to which the prisoner had a free and unfettered right, with every guarantee and protection thrown around him to enable him to submit his case to an impartial jury of his country; that in its essence the judgment of the justice rested upon the implied assent of the accused, because one word of objection upon his part annulled the judgment rendered and...