City of Highland Park v. Curtis

• Decision Date: 24 May 1967
• Docket Number: Gen. No. 66--103
• Citation: 83 Ill.App.2d 218,226 N.E.2d 870
• Parties: People of the CITY OF HIGHLAND PARK, Appellee, v. James A. CURTIS, Appellant. M.
• Court: United States Appellate Court of Illinois

Page 870

226 N.E.2d 870

83 Ill.App.2d 218

People of the CITY OF HIGHLAND PARK, Appellee, v. James A. CURTIS, Appellant.

Gen. No. 66--103 M.

Appellate Court of Illinois, Second District.

May 24, 1967.

Arthur C. Holt, Waukegan, for appellant.

Berle L. Schwartz, Asst. Corp. Counsel, Thomas H. Compere, Corp. Counsel, Highland Park, for appellee.

DAVIS, Presiding Justice.

This is an appeal from the judgment of the Circuit Court entered upon the verdict returned by the jury finding the defendant guilty of driving while under the influence of intoxicating liquor, contrary to an ordinance of the City of Highland Park, and assessing a fine against him in the sum of $200.00.

The defendant-appellant pleaded not guilty and demanded a jury trial. The Magistrate in charging the jury, refused the defendant's instruction to the effect that he was presumed to be innocent and that the City must prove his guilt beyond a reasonable doubt. And, over the defendant's objection, the Magistrate instructed the jury that the City must prove the violation of the ordinance in question by the clear preponderance of the evidence; and that if the jury's verdict was for the City, then it should state the amount of the fine, which, under the ordinance, could be no less than $1.00, nor more than $500.00.

The defendant filed a post trial motion, claiming that the Magistrate erred in refusing to give the defendant's instruction relative to the presumption of innocence and requiring proof of defendant's guilt beyond a reasonable doubt. He also claimed error in the court's giving of plaintiff's instruction that the City must prove the ordinance violation by a preponderance of the evidence, and in submitting to the jury a form of verdict requiring it, in event of a finding of guilty, to assess the fine against the defendant. This motion was denied.

The defendant contends that since January 1, 1964--the effective date of the Code of Criminal Procedure (Ill.Rev.Stat.1965, ch. 38, pars. 100--1 through 125--4)--all prosecutions under penal ordinances of a political subdivision of the State, which includes a municipality thereof, are under the Code of Criminal Procedure and in accordance with the rights of the defendant as set forth under the Criminal Code (Ill.Rev.Stat.1965, ch. 38, pars. 1--1 through 34--4), which became effective January 1, 1962. He further urges that under said Codes, the City is required to prove the defendant guilty beyond a reasonable doubt of an ordinance violation, and in event such burden is sustained by the City, that then, only the court may determine the penalty or sentence; and that, consequently, the court erred in instructing the jury.

The City urges that:

(a) the Code of Criminal Procedure of 1963 does not apply to prosecutions brought for the violation of ordinances of municipalities;

(b) prosecutions brought in the name of municipalities for the purpose of imposing a fine are nevertheless tried and reviewed as civil proceedings;

(c) in a prosecution for the violation of a municipal ordinance and the imposition of a fine, the required burden of proof is a clear preponderance of the evidence, and not proof beyond a reasonable doubt; and

(d) when a municipality seeks to impose a penalty for the violation of a municipal ordinance and the case is tried before a jury, it is the function of the jury to determine the amount of the fine to be imposed within the limits prescribed by the ordinance.

The Code of Criminal Procedure specifies that its provisions shall govern all criminal proceedings in the courts, except where a different procedure is specifically provided by law. (Ill.Rev.Stat.1965, ch. 38, par. 100--2.) Under Section 102--8 of the Code, 'charge' means a written statement presented to a court accusing a person of the commission of an offense and includes an indictment, information and complaint (Ill.Rev.Stat.1965, ch. 38, par. 102--8); and an 'offense' is a violation of any penal statute of the State, or any penal ordinance of its political subdivisions. (Ill.Rev.Stat.1965, ch. 38, par. 102--15.)

The Criminal Code provides that every person is presumed innocent until proven guilty beyond a reasonable doubt (Ill.Rev.Stat.1965, ch. 38, par. 3--1); and the Code of Criminal Procedure further provides that the jury shall return a general verdict as to each offense charged (Ill.Rev.Stat.1965, ch. 38, par. 115--4(j)); and the Criminal Code provides that the court shall determine and impose the penalty with reference to the offense charged (Ill.Rev.Stat.1965, ch. 38, par. 1--7(b).)

The foregoing Code provisions give rise to the questions of whether the enforcement of an ordinance by a municipality is a criminal proceeding; whether a municipality is a political subdivision of the State; and whether there are any other specific statutory provisions which indicate a different procedure in connection with the enforcement of municipal ordinances.

Since 1864, our courts have consistently held that a prosecution for the violation of a municipal ordinance to recover a fine or penalty from a defendant, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding, and not as a criminal prosecution. At common law, a penalty given by ordinance or statute might be recovered in an action of debt or assumpsit, in any court of general jurisdiction, but such penalty could not be recovered in a criminal proceeding. City of Decatur v. Chasteen, 19 Ill.2d 204, 216, 166 N.E.2d 29 (1960); Village of Maywood v. Houston, 10 Ill.2d 117, 119, 139 N.E.2d 233 (1956); President, etc., of Town of Jacksonville v. Block, 36 Ill. 507, 509, 510 (1865); Ewbanks v. President, etc., of Town of Ashley, 36 Ill. 177, 180 (1864). In such cases, the proceeding being civil in form, the right of appeal was conferred on appellee as well as appellant. Village of Maywood v. Houston, supra, 10 Ill.2d 119, 139 N.E.2d 233; Baldwin v. City of Chicago, 68 Ill. 418, 419, 420 (1873). 'By thus recognizing a municipality's right to appeal an adverse decision in a case to collect an ordinance violation penalty, the courts have by implication rejected a claim of double jeopardy were the case to be remanded for a new trial.' Village of Maywood v. Houston, supra, 10 Ill.2d 120, 139 N.E.2d 234.

While the foregoing decisions were prior to the effective dates of the Criminal Code and Code of Criminal Procedure, a reviewing court has, since said dates, reached similar conclusions. Village of Park Forest v. Bragg, 74 Ill.App.2d 87 89--93 incl., 220 N.E.2d 61 (1966.) In discussing the problems involved under contentions such as those advanced by the defendant, the court stated at pages 89 and 90, 220 N.E.2d at pages 62 and 63:

'The legal problem posed by this appeal is a product of the difficulty the Illinois courts have experienced in classifying ordinance violation prosecutions either as wholly criminal proceedings, as wholly civil proceedings, or as 'quasi-criminal' proceedings. If an ordinance violation prosecution can properly be classified as a criminal proceeding, and subject to all the rules which apply thereto, several conclusions are at once apparent. First of all, the municipality would not have the right to appeal an adverse decision, under Supreme Court Rule 27(4), (Ill.Rev.Stats. ch. 110, § 101.27(4) (1965)); in fact, we would be without jurisdiction to hear this appeal. Secondly, it is established that in a criminal case, after a finding of guilty, the trial judge cannot suspend the sentence for an indefinite period except under probation proceedings as provided by statute. People ex rel. Smith v. Allen, 155 Ill. 61, 39 N.E. 568, 41 L.R.A. 473; People ex rel. Boenert v. Barrett, 202 Ill. 287, 67 N.E. 23, 63 L.R.A. 82. The United States Supreme Court announced a similar rule for the federal courts in Ex Parte United States, Petitioner, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129. Nor can the trial judge impose a penalty which differs from the mandatory penalty established by the Legislature, People ex rel. Ward v. Salter, 28 Ill.2d 612, 192 N.E.2d 882. Finally, if ordinance violation prosecutions are criminal proceedings, the trial judge can make use of probationary remedies, and therefore the power to suspend penalties indefinitely would be somewhat redundant.'

Because of these decisions and for reasons hereinafter stated, we do not believe that the enforcement of an ordinance by a municipality is a criminal proceeding.

In 1963, the same legislature which enacted the Code of Criminal Procedure, amended sections 1--2--1 and 1--2--9 of the Cities and Villages Act (Ill.Rev.Stat.1965, ch. 24, pars. 1--2--1 and 1--2--9); and in 1961, the same legislature which enacted the Criminal Code, also adopted the Municipal Code of 1961. Section 11--1--1 thereof authorized the corporate authorities of each municipality to pass and enforce all necessary police ordinances. (Ill.Rev.Stat.1965, ch. 24, par. 11--1--1.) Section 1--2--1, as amended, empowers a municipality to pass all ordinances necessary to carry into effect the powers granted to it, with such fines or penalties as may be deemed proper. It further provides that no fine or penalty, except civil penalties provided for failure to make returns or pay taxes levied by the municipality, shall exceed $500 and no imprisonment for failure to pay any fine, penalty or costs shall exceed 6 months for any one offense.

Section 1--2--9, as amended, provides that actions for the enforcement of municipal ordinances may be initiated by summons or warrant and outlines the procedure attendant to bringing the alleged violator to trial. It further provides that any person upon whom a fine or penalty is imposed, upon order of the court before whom the conviction is had may be committed to jail until the fine, penalty and costs are paid; and that the municipality may provide 'by ordinance that every committed person shall be required to work at whatever labor his strength permits, within and...