City of Sheridan v. Cadle

• Decision Date: 25 May 1916
• Docket Number: 860
• Parties: CITY OF SHERIDAN v. CADLE
• Court: Wyoming Supreme Court

157 P. 892

24 Wyo. 293

CITY OF SHERIDAN v. CADLE

No. 860

Supreme Court of Wyoming

May 25, 1916

ORIGINAL application by the City of Sheridan for a writ of certiorari to review the action of the District Court in and for Sheridan county in a cause determined by such court on appeal from the municipal court of the City of Sheridan wherein S. P. Cadle, who had been prosecuted in the municipal court for disorderly conduct in violation of a city ordinance, found guilty, and sentenced to pay a fine, was in the District Court on appeal adjudged not guilty and discharged.

Writ denied.

H. N Gottlieb, for petitioner.

Prohibition will not issue where there is another adequate remedy available. (32 Cyc. 613-617.) The authorities are in conflict as to whether the writ of certiorari will issue to review void proceedings. (4 Ency. Pl. & Pr. 49.) The better rule supports the issuance of the writ. Prosecutions under city ordinances are generally classified as criminal actions. (28 Cyc. 783.) This is especially true of the case at bar which was prosecuted upon a criminal complaint. (Sections 1752-1755, Comp. Stats. 1910.) The case of Jenkins v City, 1 Wyo. 289, is predicated upon an early territorial statute and does not appear to be applicable to this case. Sections 6242-6245 providing for the review of exceptions taken by prosecuting attorneys in criminal cases does not seem to apply to this case; moreover the remedy is inadequate. Certiorari appears to be the proper remedy. (Grand Rapids v. Braudy, 105 Mich. 670, 64 N.W. 29); Section 952, Comp. Stats. 1910, has been qualified by the enactment of Section 1753; the fine being less than $ 10.00 the remedy by appeal under Section 1753 has been cut off.

Louis J. O'Marr, for petitioner.

Section 1753, Comp. Stats. 1910, would seem to be conclusive on the question of appellate jurisdiction; the District Court was without jurisdiction, the fine being less than $ 10.00; the right of appeal is regulated by statute. (Section 23, Art. V. Const; Mau v. Stoner, 14 Wyo. 183.) Section 1753 having mentioned the cases in which appeals were permitted, appeals in other cases are excluded by application of the maxim, expressio unius est exclusio alterius. (Lewis' Statutory Construction, Sec. 491 and cases cited.) Section 952, Comp. Stats. 1910, does not govern the appeal in the case at bar.

F. W. Byrd, for defendant.

If the District Court acted without jurisdiction, its action is void and certiorari will not lie. (6 Cyc. 761.) If the District Court acted within its jurisdiction certiorari will not lie. If the city is in doubt as to the legal question involved Section 6243, Comp. Stats. 1910, supplies a remedy. Section 952, Comp. Stats., permits an appeal in all cases and the principle is incorporated in Section 91, Art. I, Chapter 6, Compiled Ordinances of Sheridan. Section 1753 does not expressly prohibit the right of appeal in all cases, as is set forth in Section 952. The city had an adequate remedy by writ of prohibition. The writ will not lie where no appreciable injury has resulted, (6 Cyc. 749), and if issued at all must be sued out before and not after verdict. (Id. 754.) The petition should be dismissed and the writ denied.

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This is a proceeding instituted in this court by the City of Sheridan by filing a petition for a writ of certiorari to review the action of the District Court in and for Sheridan County in a cause determined by said court on appeal from the municipal court of said city, wherein one S. P. Cadle, the defendant named in the petition, had been prosecuted in the municipal court for disorderly conduct in violation of a city ordinance, found guilty, and sentenced to pay a fine of five dollars and the costs assessed at $ 10.55, and in the district court on said appeal was adjudged not guilty and discharged. The petition alleges that after the taking of said appeal and the filing of the same with the papers in the cause in the office of the clerk of the district court the city filed a motion to dismiss the appeal and remand the cause to the municipal court for the execution of the sentence of that court, on the ground that the district court was without jurisdiction to entertain the appeal; that said motion was overruled and the city thereupon announced its intention to rely upon its exception to the overruling of said motion and declined to introduce any testimony; that said court proceeded to try the cause, found the defendant not guilty, and entered final judgment that the defendant be discharged, that his appeal bond be exonerated, and that he recover his costs from the city, to which the city at the time excepted. The prayer of the petition in substance is that the district court's action upon the motion to dismiss the appeal be reviewed and reversed and the cause remanded to the municipal court for the execution of its said sentence, and to that end that a writ of certiorari be issued requiring the record in the cause to be certified to this court, that summons be issued to the defendant to appear and defend against the relief prayed, that an order be entered for the filing of briefs, and that after hearing the petitioner be granted the relief aforesaid and such further and other relief as may seem to the court just and equitable in the premises.

The cause has been heard on the petition for the writ, with the understanding that it the city's contentions be sustained the writ shall issue, and the case disposed of accordingly, unless upon a further hearing after the return of the writ, should that be insisted upon, a different conclusion shall be reached respecting the substantive merits of the controversy. This course was taken following our request that briefs be submitted on the question of the power to issue the writ and the propriety thereof in this case, this appearing to be the first instance of an application to this court for review on certiorari. Briefs were submitted as requested by H. N. Gottlieb, city attorney, representing the petitioner, and F. W. Byrd, representing the defendant; the defendant's brief covering the question of the jurisdiction of the district court on said appeal, as well as the authority of this court to issue the writ and the propriety of its issuance in this case. It appearing from the briefs that the facts to be shown by the record as stated in the petition were not disputed, we then suggested that the whole matter might be heard and considered upon the petition with the understanding above stated, and thus avoid the additional expense of bringing the record here if our conclusion should be against the petitioner upon grounds that would ultimately dispose of the case. A brief for the city on the question of the district court's jurisdiction to entertain the appeal was thereupon submitted by L. J. O'Marr, who had succeeded Mr. Gottlieb as city attorney.

The defendant does not contend that this court would be without authority to issue the writ of certiorari in a case of this kind, but opposes its issuance on other grounds. However, we would not feel justified in determining the other questions raised by the application without first inquiring into the court's power to employ the writ for the purpose stated in the petition. The constitution declares that this court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law. (Art. V, Sec. 2.) And that it "shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction." (Art. V, Sec. 3.) Prior to the adoption and taking effect of the constitution the writ of certiorari to reverse, vacate or modify judgments or final orders in civil cases was abolished. (Laws 1886, Ch. 60, Sec. 801, Revised Stat. 1887, Sec. 3149.) That provision has remained in the statutes (Comp. Stat. 1910, Sec. 5130), and they contain no provision for the issuance of the writ in other cases.

A similar territorial statute in Oklahoma was held by the Supreme Court of that state to be no longer in force because in conflict with a provision of the State Constitution granting the court power to issue the writ, like that found in the Constitution of this state; and the court further held that by such constitutional provision the writ was authorized as it exists at common law, as an aid to the Supreme Court in the exercise of its general superintending control over all inferior courts, boards and commissions, but to bring up the record for investigation and review as to jurisdictional errors only. (Baker v. Newton, 22 Okla. 658, 98 P 931; Palmer v. Harris, 23 Okla. 500, 101 P. 852, 138 Am. St. Rep. 822.) But it is unnecessary in this case to consider the present effect of said statute abolishing the writ in civil cases, and we shall not attempt to decide that question, for this is not a civil case. Although it was held in Jenkins v. City of Cheyenne, 1 Wyo. 287 at 289, that a prosecution for the violation of a city ordinance was a civil action, that decision was based upon a statutory definition of civil and criminal actions not now found in the statutes. But under the statutes now in force such a prosecution must clearly, we think, be treated as at least quasi-criminal. It is usually commenced by a complaint upon which a warrant issues for the arrest of the accused, and the penalty imposed is either a fine or imprisonment or both. All the special charters and the general laws for the incorporation of cities and towns contain...