City of Portland v. Erickson

• Court: Supreme Court of Oregon
• Writing for the Court: [39 Or. 5] WOLVERTON, J.
• Citation: 39 Or. 1,62 P. 753
• Decision Date: 19 November 1900
• Parties: CITY OF PORTLAND v. ERICKSON.

62 P. 753

39 Or. 1

CITY OF PORTLAND
v.
ERICKSON.

Supreme Court of Oregon

November 19, 1900

Appeal from circuit court, Multnomah county; M.C. George, Judge.

Action by the city of Portland against August Erickson. From a judgment of the circuit court on a writ of review setting aside a judgment of acquittal by the municipal court, defendant appeals. Reversed. [62 P. 754]

[39 Or. 2] M.L. Pipes, for appellant.

Ralph Duniway, for respondent.

[39 Or. 5] WOLVERTON, J.

This is an appeal from the judgment of the circuit court upon a writ of review to the municipal court of the city of Portland, whereby a judgment of acquittal in [39 Or. 6] favor of the defendant upon a charge of violating Ordinance No. 7133 of said city was reversed and set aside, and the cause remanded, with directions to the municipal court to adjudge that he be fined or imprisoned under said ordinance. The facts were essentially stipulated in the municipal court, and upon these the defendant was adjudged not guilty. It is alleged in the petition for the writ that the judgment was so rendered because the court was of the opinion that the ordinance under which the prosecution was instituted was void for want of power or authority in the city, under its charter, to adopt it. Whether this is so or not cannot affect the case, under the view we entertain of the proceeding. The defendant contends that, having been acquitted, he could not be again legally tried for the same offense, and that the action of the circuit court in ordering the cause to be remanded to the municipal court, with directions that he be adjudged to pay a fine, or that he be imprisoned, was in effect a retrial. This brings up the question whether the violation of the ordinance with which the defendant is charged is an offense, within the inhibition of the constitution (article 1, § 12), which provides that "no person shall be put in jeopardy twice for the same offense." This court held in Wong v. City of Astoria, 13 Or. 538, 11 P. 295, a case under a city ordinance, whereby the defendant was sentenced to pay a fine, and to be imprisoned in default of payment, that such an action was not a criminal prosecution, within the meaning of section 11 of article 1 of the constitution, which accords to the accused the right of trial by jury. The holding is, however, by no means decisive of the present controversy. That decision was based upon the idea, promulgated in some other jurisdictions, that the proceeding must be regarded as a civil action for the recovery of a fine, penalty, or forfeiture. While this may be proper and regular, yet [39 Or. 7] where, under the statute and ordinances, enforcement is sought by resort to proceedings authorized and carried on in all respects as criminal cases are prosecuted.--by complaint and warrant,--and where the court is empowered to inflict upon the accused not only a fine, which may be followed by imprisonment for its nonpayment, but also imprisonment aside from any pecuniary penalty or forfeiture, such proceeding becomes so far criminal in its nature, and the violation of the ordinance such an offense, that a person acquitted thereof cannot be again put in jeopardy for the same offense. Village of Northville v. Westfall, 75 Mich. 603, 42 N.W. 1068; People v. Vinton, 82 Mich. 39, 46 N.W. 31. Ordinance No. 7133, under which the complaint is preferred, empowers the municipal court to impose a fine upon the offender of not less than $25 nor more than $100, or to imprison him for a term of not...