City of Portland v. White

• Decision Date: 09 January 1923
• Parties: CITY OF PORTLAND v. WHITE.
• Court: Oregon Supreme Court

211 P. 798

106 Or. 169

CITY OF PORTLAND v. WHITE.

Supreme Court of Oregon

January 9, 1923

In Banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Rose White was convicted in the municipal court and in the circuit court of violating an ordinance, and she appeals. Appeal dismissed.

Paul M. Long and Morris A. Goldstein, both of Portland, for appellant.

Frank S. Grant, City Atty., R. A. Imlay p>Page Deputy City Atty., both of Portland, for respondent.

BEAN J.

Defendant was convicted in the municipal court of the city of Portland of a violation of section 23 1/4 of Ordinance No. 32928 of the city. Upon an appeal to the circuit court a trial was had with a like result. Defendant was sentenced to serve 58 days in the city jail of Portland. From the judgment of the circuit court, defendant prosecutes this appeal.

The plaintiff city moves to dismiss the appeal for the reason that this court has no jurisdiction to entertain the same. No brief has been filed on behalf of defendant, although the time therefor has been extended and has expired.

It should be noticed at the outset that in this case we have to deal with the violation of a city ordinance passed for municipal regulations. It is not a matter over which the circuit court exercises jurisdiction independently of the Constitution and statutes of the state. No constitutional right is involved. The validity of the ordinance is not in question. See In re N. P. Pres. Board of Missions v. Ah Wan, 18 Or. 339, 345, 22 P. 1105.

There is no common-law right of appeal. The right is purely statutory. La Fayette v. Clark, 9 Or. 225; Barton v. La Grande, 17 Or. 577, 581, 22 P. 111; School Dist. v. Irwin, 34 Or. 431, 435, 56 P. 413; Portland v. Gaston, 38 Or. 533, 63 P. 1051.

It seems to be the general rule that the right to review proceedings for the violation of a municipal ordinance by appeal exists only when authorized by law. The principle is firmly established that, when a particular jurisdiction is conferred upon an inferior court, its decision when acting within its jurisdiction is final, unless provision is made for an appeal from such decision. In most jurisdictions provision has been made for review by appeal, and the scope and extent of this right must be determined by the law controlling it. 3 McQuillin on Municipal Corporations, § 1092. This means that a statute conferring the right of appeal from the municipal court to the circuit court, limits such right of appeal to the latter court only.

As said by Mr. Justice Burnett in City of Portland v Nottingham, 58 Or. 1, 113 P. 28:

"An appeal is not a matter of primary right. It is a privilege, and he who would enjoy that privilege must show some statute conferring it upon him."

We read in 3 C.J. p. 375, § 133:

"It is a well-settled rule in most jurisdictions that where a tribunal exercises a special, limited jurisdiction conferred by statute, and in which the procedure is not according to the course of the common law, no appeal or writ of error lies from or to its action therein, unless such appeal is expressly provided by statute. But in some jurisdictions the courts have, without any special statutory authority, allowed appeals in such cases."

Section 336 of the legislative charter of 1903 of the city of Portland, which we shall assume, without deciding, to be retained in full force as a charter ordinance in the municipal charter of 1913, provides that--

"Any defendant who is convicted of any crime defined or created by this charter, or of a violation of any ordinance rule or regulation of the city of Portland, and is sentenced to any imprisonment or to pay a fine exceeding twenty dollars, may, within five days from the date of such conviction and judgment, appeal to the circuit court of Multnomah county. * * *"

This section relates only to appeals from the municipal court to the circuit court. It does not change the character of the offense committed, although under the Code procedure provided for justices' courts adopted by this section the trial in the circuit court is a trial de novo. The charter in effect constitutes the circuit court a part of the machinery of the city for the purpose of law enforcement. The circuit court does not acquire original jurisdiction, but is to all intents and purposes a municipal court of appeals. In re Goldsmith, 12 Or. 414, 7 P. 97, 9 P. 565; Portland v. Yick, 44 Or. 439, 445, 75 P. 706; 102 Am. St. Rep. 633; Mayhew v. City of Eugene, 56 Or. 102, 104 P. 727, Ann. Cas. 1912C, 33; City of Portland v. Nottingham, 58 Or. 1, 113 P. 28.

The violation of a municipal ordinance is not necessarily a crime. It is, we think, usually denominated in this state as a quasi criminal offense. Wong v. Astoria, 13 Or. 538, 11 P. 295; Cranor v. Albany, 43 Or. 144, 71 P. 1042; State v. Crawford, 58 Or. 116, 113 P. 440, Ann. Cas. 1913A, 325; Triphonoff v. Sweeney, 65 Or. 299, 130 P. 979.

Therefore it follows that chapter 12, tit. 18, of the Code, relating to appeals in criminal actions, is not applicable to offenses against the city law. There is no statutory or charter provision authorizing such appeal. Section 1603 et seq., Or. L.; section 336 of Charter Ordinances of the City of Portland.

The provisions of section 1604, Or. L., are as follows:

"The party aggrieved, whether the state or the defendant, may appeal from a judgment in a criminal action in the cases prescribed in this chapter and not otherwise."

Section 1606, Or. L. reads:

" Defendant May Appeal, in What Case. An appeal to the Supreme Court may be taken by the defendant from a judgment on a conviction in a circuit court, or from an order refusing to dismiss the indictments as provided for in section 1701; and upon an appeal, any actual decision of the court, in an intermediate order of proceeding forming a part of the judgment roll, as prescribed in section 1582, may be reviewed."

Section 1604 limits the right of appeal under this chapter to an appeal from a judgment in criminal actions, and it is evident that the language of section 1606, granting the right of appeal "from a judgment on a conviction in a circuit court," refers to a conviction in a criminal action. This construction is fully borne out by the further provisions of chapter 12, relating to the taking of appeals. Section 1611 provides for service of notice of appeal on the district attorney. That official is not vested by law with jurisdiction in the prosecution of offenses against the city, nor does he acquire such jurisdiction by reason of appeal to the circuit court.

Where a statute or a charter gives the right of appeal to the circuit court, the Supreme Court does not by virtue of the provisions of the Constitution thereby become clothed with authority to review the judgment...