City of New Orleans v. Adjmi

• Decision Date: 02 May 1966
• Docket Number: No. 47998,47998
• Citation: 186 So.2d 616,249 La. 346
• Parties: CITY OF NEW ORLEANS v. Charles ADJMI.
• Court: Louisiana Supreme Court

Page 616

186 So.2d 616

249 La. 346

CITY OF NEW ORLEANS v. Charles ADJMI.

No. 47998.

Supreme Court of Louisiana.

May 2, 1966.

Rehearing Denied June 6, 1966.

Herman & Herman, Walter D. Kelly, New Orleans, for relator.

Alvin J. Liska, City Atty., Frank C. O'Halloran, Jr., Asst. City Atty., for respondent.

HAWTHORNE, Justice.

Relator Charles Adjmi was adjudged guilty in the First Municipal Court of New Orleans of violating a municipal ordinance, and was sentenced to pay a fine of $50.00 or serve 30 days in jail. This judgment was affirmed on appeal by the Criminal District Court for the Parish of Orleans, and on relator's application this court granted writs.

Proceedings against relator were instituted by affidavit, made by the chief electrical inspector, which reads:

'That on Monday the 26th. day of October 1964, at about 4:30 o'clock P.M., on 705 Canal Street, between Royal and Bourbon Streets, within the jurisdiction of this Court, one Charles Abjmy (Adjmi), did then and there wilfully violate Ordinance No. 17525, C.C.S. as amended Articles 5028 and 5029 relative to Sale of Electrical Appliances (Travel Iron) in violation of New Orleans Building Code * * *.'

The two articles of the ordinance involved, insofar as pertinent, read:

'Art. 5028. Basic Standards.

'All electrical devices, fittings, materials, equipment, and appliances shall be those approved for the purpose for which they are used. Such electrical devices, fittings, materials, equipment, and appliances, that are constructed in conformity with the standards of and are listed by the Underwriters' Laboratories, Inc., in their 'List of Inspected Electrical Equipment' shall be prima facie evidence of conformity with the requirements of this Code.'

'Art. 5029. Standard Electrical Materials.

'Before any electrical material, appliance, or apparatus is used, sold, replaced with new article, rented, given as a premium or placed on sale, it shall be constructed in conformity with the most approved methods to insure safety to life and property.'

In granting the writs we limited our consideration to the following two contentions raised by relator:

(1) The ordinance is unconstitutional because it is so vague and indefinite that it sets forth no proscribed conduct and fails to define what is and what is not prohibited thereby.

(2) The affidavit is defective because it is so vague and indefinite that it fails to inform the accused of the nature of the offense with which he is charged.

We first consider relator's contention that the ordinance is unconstitutional because of vagueness and indefiniteness as it sets forth no proscribed conduct and fails to define what is and what is not prohibited thereby. By order of the trial judge a certified copy of the ordinance was made part of the record in this case.

Relator's allegation of vagueness is directed particularly to the following language in Article 5029 of the ordinance: 'Before any electrical * * * appliance * * * is * * * sold * * * it shall be constructed in conformity with the Most approved methods to insure safety to life and property'. (Italics ours.) A reading of the ordinance as a whole discloses that it clearly shows what constitutes 'most approved methods', and therefore relator's allegation of vagueness is without merit.

In taking up relator's second contention, aimed at the affidavit, we must at the outset emphasize that We are here considering a charge of violating a municipal ordinance, and not a charge of violating a provision of the Criminal Code or other statute enacted by the Legislature or a provision of the Constitution.

In his argument that both the ordinance and the affidavit are defective for vagueness and indefiniteness, relator urges us to consider the ordinance and the affidavit in the same manner as we have considered statutes defining crimes and charges brought under such statutes, and to conclude accordingly that his constitutional rights have been violated, particularly the right guaranteed by Article 1, Section 10, of our 1921 Constitution, which provides that 'In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.' ¹ (Italics here and elsewhere are ours.)

We cannot consider relator's case in the same manner because those charged with violating municipal ordinances are not entitled to the same constitutional protection which relator claims here. The reason is that violations of municipal ordinances are not, usually and properly, regarded as crimes, and trials for violations of municipal ordinances are not regarded as criminal prosecutions. ²

Article 7 of the Louisiana Criminal Code, R.S. 14:7, stipulates:

'A crime is that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.'

The Reporter's Comment under this article states.

'This article makes it clear that the Code continues the tradition that the Louisiana criminal law is purely statutory, there being no other crimes than those defined in the Code or other statutes of the state. * * * It is intended to Exclude from the designation 'crime' all offenders denounced in municipal ordinances.'

According to Marr's discussion of the definition of 'crime', 'A crime is a wrong directly or indirectly affecting the public, to the commission of which the State has annexed certain pains and penalties, and which it prosecutes and punishes in its own name in what is called a criminal proceeding * * *', and 'Violations of municipal ordinances Are not regarded as crimes'. 1 Marr's Criminal Jurisprudence (2d ed. 1923), sec. 26, p. 64.

According to McQuillin, 'Violations of municipal police regulations are not usually regarded as crimes as that term is used in our law * * *'. 9 McQuillin, Municipal Corporations (3rd rev'd ed.), sec. 27.37, p. 696. This is true even though the ordinance may designate or refer to the violation as a misdemeanor. McQuillin, op. cit. supra, sec. 27.38, p. 699.

Article 1 of the Louisiana Code of Criminal Procedure, R.S. 15:1, provides:

'A criminal proceeding is a prosecution instituted and carried on in the name of the state before a court of criminal jurisdiction for the purpose of bringing to punishment one who has violated a criminal law.'

Thus a proceeding to enforce a municipal ordinance is not a criminal prosecution within this definition, and it is generally recognized that a proceeding in a municipal court for violation of a municipal ordinance is not criminal. ³ McQuillin states:

'* * * prosecutions for violations of Ordinances are not 'criminal,' as that term is used in constitutions and statutes. And the fact that the process shall be a warrant and that one named therein may be arrested and retained in custody or under reasonable recognizance until the next sitting of the local court, and moreover, that in event of judgment against defendant and refusal or neglect to pay the same, he may be committed, does not render the case criminal. * * *' McQuillin, op. cit. supra, sec. 27.06, p. 610.

Rhyne says of proceedings to enforce municipal ordinances: '* * * the legal rules required for the protection of persons charged with a crime against the state do not apply, and the procedure may be more or less summary and informal.' Rhyne, Municipal Law (1957), secs. 9--13, p. 245.

McQuillin gives the historical background for viewing violations of municipal ordinances differently from violations of criminal laws and for permitting a less rigid procedure and trial in municipal violation cases:

'In England, notwithstanding the provision of Magna Charta that no freeman shall be taken, imprisoned or condemned but by lawful judgment of his peers or by the law of the land, it has been the constant course of legislation for centuries past, to confer summary jurisdiction upon local magistrates and justices of the peace for the trial and conviction of parties for minor police offenses, such as petty assaults and batteries, roguery and vagabondism, public drunkenness, family abandonment, etc. Workhouses and houses of correction, principally occupied by those so convicted, have been maintained, certainly from the days of Queen Elizabeth to the present time, as a part of the police system. Both the jurisdiction and the means of punishment have been deemed essential to the good government and well-being of society.

'In this country there has been no time since the earliest days of the colonies that like summary jurisdiction has not been exercised, sometimes under British statutes, but more generally by virtue of laws passed by the colonial and state legislatures. The justice of the peace has always been regarded as an important functionary, and a large portion of the police power of the state has been enforced through his instrumentality.' McQuillin, op. cit. supra, sec. 27.32, p. 684.

McQuillin, continuing, explains the necessity and the practicality of this view:

'It is thus apparent that infractions of such local police regulations have ever been looked upon as trivial offenses, not in their essence crimes or misdemeanors, as those terms are employed in our criminal jurisprudence. In all such cases, therefore, it is entirely competent, unless the constitution forbids, to provide for summary trial without a jury, either in the municipal charter or by act of the legislature of the state. The necessity of summary trial of such offenses is obvious. To insure the prompt and efficient exercise of the police authority, with which municipal corporations are ordinarily clothed, the trial of offenders must be speedy and the punishment summary, which are impossible of attainment under the slow and formal methods of prosecuting by indictment or information and trial by jury. In the large cities, especially because of the vast number of such hearings daily, jury trial would be impracticable. Consequently, the procedure is of necessity almost altogether summary and is not...