City of Carbondale v. Irving
Decision Date | 08 February 1977 |
Docket Number | No. 76--296,76--296 |
Citation | 4 Ill.Dec. 371,360 N.E.2d 118,45 Ill.App.3d 699 |
Parties | , 4 Ill.Dec. 371 CITY OF CARBONDALE, a Municipal Corporation, Plaintiff-Appellant, v. Bobbie J. IRVING, Defendant-Appellee. |
Court | United States Appellate Court of Illinois |
J. Phil Gilbert, Carbondale, for plaintiff-appellant.
Dennis J. Hogan, Murphysboro, for defendant-appellee.
This is an appeal by plaintiff, the City of Carbondale, from an order of the Circuit Court of Jackson County denying the City's post-trial motion to set aside the court's dismissal of a cause of action for violation of a city ordinance against defendant-appellee Bobbie J. Irving on the grounds of unjustified, excessive delay on the part of the City.
The facts necessary to our disposition of this appeal are as follows. On November 11, 1974, defendant was charged on a ticket issued by the Carbondale police department with driving while under the influence of alcohol or narcotic drugs within the city limits in violation of Local Ordinance 1--501. On December 16, 1974, defendant filed a demand for a speedy trial. On February 3, 1975, plaintiff filed an amended traffic complaint charging the defendant with driving while under the influence of intoxicating liquor, in violation of Section 18--5--1 of the Carbondale Revised Code. The prayer for relief of the amended complaint requested 'that the Defendant be fined in the penal sum of $500.00 plus the cost of these proceedings.' 1 On June 10, 1975, the defendant filed a motion to dismiss pursuant to Section 114--1(a)(1) of the Code of Criminal Procedure (Ill.Rev.Stat.1973, ch. 38, par. 114--1(a)(1)), because of the City's failure to bring him to trial within 160 days of his demand for a speedy trial as required by Section 103--5(b) of the Code (Ill.Rev.Stat.1973, ch. 38, par. 103--5(b)). On September 11, 1975, after hearing arguments of counsel and the stipulation of the City that no delay following defendant's demand for speedy trial could be attributed to him, and being 'otherwise fully advised,' the court entered an order granting the motion to dismiss. On September 24, the City filed its post-trial motion, in support of which it cited City of Chicago v. Wisniewski, 54 Ill.2d 149, 295 N.E.2d 453 (1973), where the supreme court held that Section 103--5 of the Code of Criminal Procedure does not apply to the prosecution of ordinance violation cases. On May 14, 1976, the trial court entered another order reciting that at the time of the initial hearing the attorneys for both parties had told the court that they were not aware of any higher court rulings on the question presented, that the court had reviewed Wisniewski and found it applicable to the instant case, and that it had been in error in its September 11 order. The order concluded:
On appeal, the City contends that the court erred in concluding that there was excessive delay in bringing the defendant to trial. The City seeks to distinguish the instant case from Wisniewski, where the supreme court could find no justification for the violation of the requirement of Section 1--2--9 of the Municipal Code (Ill.Rev.Stat.1967, ch. 24, par. 1--2--9) that prosecutions for violations of municipal ordinances be tried 'without unnecessary delay.' The City argues in its brief that * * *'
The City's brief further states that the first 10 months of the period that elapsed after the arrest (that is, up until the court's original dismissal order of September 11, 1975) was attributable to the defendant. We think that such an argument is foreclosed to the City because of its stipulation, as recited in the September 11 order, that none of this delay was attributable to the defendant. After a review of the applicable law, we have concluded that the trial court acted within its discretion in dismissing the case because of unnecessary delay in bringing it to trial.
In Wisniewski, the supreme court said:
(54 Ill.2d at 152--53, 295 N.E.2d at 454.)
The court concluded without elaboration that the analogous section of the Municipal Code, while less precise in its requirements that the speedy trial provision of the Code of Criminal Procedure, did not contemplate a delay of 17 months between arrest and trial, none of which was attributable to the defendant and for which the record indicated no justification.
The Hartshorn case cited in Wisniewski was the most recent occasion for our supreme court to discuss the somewhat amorphous nature of prosecutions for violations of municipal ordinances. There the court held that a defendant charged with resisting a police officer in violation of a local ordinance was entitled to trial by jury under the Civil Practice Act, but that whether the discovery provisions of that Act might be invoked in such a case was discretionary with the trial court. In reaching these conclusions the court said in part:
'The prosecution of municipal ordinances has been regarded somewhat ambiguously. Ordinances have long been treated as quasi-criminal in character but civil in form.
It is clear that in Illinois the procedure for exercising a municipality's authority to collect fines for ordinance violations is essentially civil. * * * While regarding ordinance-violation proceedings as civil in form, this court has traditionally characterized them also as quasi-criminal. (Citations.) This viewing of the municipal ordinance as a hybrid, which is civil in form, has persisted. * * * ' (53 Ill.2d at 401--02, 292 N.E.2d at 384.)
The court cited cases holding that the plaintiff in an ordinance violation case can appeal as in other civil cases, that application of certain provisions of the Civil Practice Act is proper, and that conviction of violating an ordinance does not require proof beyond a reasonable doubt. (Village of Maywood v. Houston, 10 Ill.2d 117, 139 N.E.2d 233 (1957); Village of Park Forest v. Bragg, 38 Ill.2d 225, 230 N.E.2d 868 (1967); City of Decatur v. Chasteen, 19 Ill.2d 204, 166 N.E.2d 29 (1960); City of Chicago v. Joyce, 38 Ill.2d 368, 232 N.E.2d 289 (1967).)
We conclude from Hartshorn and the cases cited therein that, although all provisions of the Civil Practice Act may not be applicable in a particular ordinance violation case because of its peculiar quasi-criminal character, the procedure to be followed, both at trial and on appeal, is essentially and ordinarily that of civil cases, not of criminal cases. (See also City of Highland Park v. Curtis, 83 Ill.App.2d 218, 226 N.E.2d 870 (2d Dist. 1967).) 2 Therefore, to decide whether or not the trial court's dismissal was appropriate, we must first determine whether it conformed to civil practice, and, if so, whether there is any reason (stemming from the quasi-criminal character of the action) to depart from the procedure in the ordinary civil case.
As long as Epley v. Epley, 328 Ill. 582, 160 N.E. 113 (1928), the proposition that a court has inherent power to dismiss a civil case for unnecessary delay in prosecution was treated as well settled. There our supreme court said:
(328 Ill. at 585, 160 N.E. at 114.)
(See also Hogan v. Braudon, 40 Ill.App.3d 352, 354--55, 352 N.E.2d 303, 305 (2d Dist. 1976) ( ); Crawford v. Crawford, 39 Ill.App.3d 457, 463, 350 N.E.2d 103, 108 (1st Dist. 1976) ( ).) In Bender v. Schallerer, 9 Ill.App.3d 951, 952--53, 293 N.E.2d 411, 413 (1st Dist. 1973), the court said:
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