Syllabus
by the Court.
Under
the constitutional provision (section 3, art. 18, Const.)
providing that "any city containing a population of more
than two thousand inhabitants may frame a charter for its own
government, consistent with and subject to the Constitution
and laws of this state," a city adopting a charter is
accorded full power of local self-goverment, and, as such
municipal corporation under its charter, it has power to
enact, ordain, and enforce ordinances for the purpose of
protecting the public peace, order, health, morals, and
safety of the inhabitants, even though general statutes exist
relating to the same subjects.
The
adoption of the prohibition ordinance by the people, and the
enactment of the prohibition law, does not prevent cities of
the first class from enacting ordinances prohibiting the sale
of intoxicating liquor within the limits of such cities.
The
same act committed by a person may constitute a crime against
the state law and a different petty offense against the city
ordinance, and, the two offenses being different, the
offender may be proceeded against under either the city
ordinance or the slate law, or both.
A
conviction under an ordinance of a city of the first class
for being in possession of intoxicating liquors with intent
there to barter, sell, give away, or otherwise furnish
contrary to law is not a bar to a prosecution for the same
act under the prohibitory law of the state.
The
constitutional provision (Bill of Rights, § 19) that
"the right of trial by jury shall be and remain
inviolate" was adopted with reference to the procedure
theretofore generally existing, and if, in a given class of
offenses, trials without a jury were the prevailing rule
this rule is not changed by this constitutional provision.
Where a
statute authorizes a trial before a municipal court without a
jury, for a violation of a city ordinance, and at the same
time secures to the defendant an appeal therefrom, hampered
by no unreasonable restrictions, to an appellate court where
he has a right to a trial by jury, such summary proceeding is
not in conflict with the constitutional provisions: "The
right of trial by jury shall be and remain inviolate."
Bill of Rights, § 19. "In all criminal prosecutions the
accused shall have the right to a speedy and public trial by
an impartial jury of the county in which the crime shall have
been committed." Bill of Rights, § 20.
A
prosecution in a municipal court for a violation of a
municipal ordinance which prohibits an act which is also an
offense under the general criminal law of the state is a
quasi criminal proceeding.
A
prosecution in a municipal court for a violation of a city
ordinance may be in the name of the city.
(Additional Syllabus by Editorial Staff.)
A
municipal corporation in its historical and proper sense is
the incorporation by the authority of the government of the
inhabitants of a particular place or district and authorizing
them in their corporate capacity to exercise subordinate
specified powers to legislation and regulation with respect
to their local and internal concerns. This power of local
government is the distinctive purpose and the distinguishing
feature of a municipal corporation proper.
Petition
of T. H. Simmons for a writ of habeas corpus. Writ denied.
The
petitioner, T. H. Simmons, on December 16, 1910, filed in
this court a petition, which, omitting the title and
verification, reads as follows:
"Your
petitioner, T. H. Simmons, represents and states to this
honorable court that he is restrained of his liberty, and
is unlawfully imprisoned and restrained at Tulsa, in the
county of Tulsa, in the state of Oklahoma, by C. W
Connelly as chief of police of the city of Tulsa. The cause
of said restraint according to the best of the knowledge
and belief of your petitioner is as follows: On the 14th
day of December, 1910, one Ben F. Latham made complaint
before C. A. Houston, as judge of the municipal court of
the city of Tulsa, Okl., charging your petitioner with the
offense of violating section 1 of Ordinance No. 756 of the
city of Tulsa, Okl. A certified copy of said complaint is
filed herewith, attached hereto, and made a part hereof
marked for identification 'Exhibit A.' A certified
copy of said Ordinance No. 756 of the city of Tulsa, Okl.,
is attached hereto and made a part hereof, and filed
herewith, marked for identification 'Exhibit B.'
That said purported ordinance was passed and adopted by the
board of commissioners of the city of Tulsa on the 26th day
of July, 1910, and published as required by law in the
issues of July 27, 28, and 29, 1910, in the Tulsa Daily
Democrat. That on the 22d day of November, 1910, the board
of commissioners of the city of Tulsa, Okl., passed and
adopted a purported ordinance No. 822, which said purported
ordinance was published in the Tulsa Daily Democrat as
required by law in the issues of November 28, 29, 30, 1910.
A certified copy of said purported ordinance is attached
hereto and made a part hereof, and marked for
identification 'Exhibit C.' That the alleged
violation of section 1 of Ordinance No. 756 of the city of
Tulsa is charged in said complaint to have been committed
in the city of Tulsa, Okl., on the 12th day of December,
1910. That on the 14th day of December, 1910, your
petitioner was placed upon trial in the municipal court of
the city of Tulsa, Okl., and demurred to said complaint on
various and sundry grounds, among which was that the said
court had no jurisdiction to try your petitioner on said
charge, and that the aforesaid ordinances of the city of
Tulsa, Okl., were void because the acts alleged to have
constituted said offense are made a public offense under
the statutes of the state of Oklahoma, and the Constitution
of Oklahoma, and jurisdiction to try such offense conferred
exclusively upon the county court of Tulsa county, Okl.,
and because the board of commissioners of the city of
Tulsa, Okl., were without authority to pass, approve, or
adopt said ordinances, or either of them. That the
municipal court aforesaid overruled said demurrer, and
required your petitioner to go to trial in said court upon
said complaint. That thereupon your petitioner demanded a
trial by jury, and the said court refused your petitioner a
jury trial on said charge. That thereupon a trial was had
in said court upon said complaint, and your petitioner
found guilty by the court, and his punishment fixed at a
fine of $100 and 10 days' imprisonment in the city jail
of the city of Tulsa, Okl., and the court ordered
commitment to issue for your petitioner until said fine was
paid and said imprisonment was satisfied. A certified copy
of the docket entry on the records of said court is
attached hereto, made a part hereof, marked for
identification 'Exhibit D.' That your petitioner
excepted to each and every ruling of the court at the time
made. That thereupon the aforesaid C. A. Houston, as judge
of the municipal court of the city of Tulsa, Okl., signed
and issued a commitment for your petitioner in accordance
with the aforesaid judgment. A certified copy of said
commitment is attached hereto, made a part hereof, filed
herewith, and marked for identification 'Exhibit
E.' That at all times herein mentioned C. W. Connelly
was chief of police of the city of Tulsa, Okl., and that
said commitment was issued to C. W. Connelly as chief of
police of the city of Tulsa, Okl., and that your petitioner
is now being held in custody in the city jail of the city
of Tulsa, restrained of his liberty by the said Connelly
under authority and by virtue of said commitment and the
aforesaid proceeding. Your petitioner alleges that the
municipal court of the city of Tulsa, Okl., had no
jurisdiction to try your petitioner on said charge; that
the board of commissioners for the city of Tulsa, Okl., had
no authority to pass, approve, or adopt said ordinances or
either of them, and that the aforesaid proceedings in the
municipal court of the city of Tulsa were illegal and void,
and that the aforesaid restraint of your petitioner is
illegal and unauthorized because of the aforesaid facts.
Wherefore your petitioner prays this honorable court to
grant a writ of habeas corpus, and that he be discharged
without delay from such unlawful imprisonment, and that,
pending the hearing of the return of said writ, your
petitioner be admitted to bail in an amount to be fixed by
this court."
Exhibit
B.
Published
in the Tulsa Democrat, July 27, 28, 29, 1910. Wm. Stryker,
Publisher.
"Ordinance
No. 756.
"An
ordinance prohibiting persons having the possession of
intoxicating liquors with intent to barter, sell, give away
or otherwise furnish the same contrary to law, except as
hereinafter provided, and declaring an emergency.
"Be
it ordained by the board of commissioners of the city of
Tulsa, state of Oklahoma:
"Section
1. That it shall be unlawful for any person or persons to
have in his, or their possession, or under his, or their,
control any intoxicating liquors of any kind, including
beer, ale and wine, within the city of Tulsa, with intent
to barter, sell, give away or otherwise furnish the same
contrary to law, except the same be held by such person, or
persons, by virtue of an agency created and authorized by
the Legislature to dispense such liquors for medicinal,
mechanical, industrial and scientific purposes.
"Section
2. Any person, or persons, who shall violate any of the
provisions of section one (1) of this ordinance shall be
deemed guilty of a misdemeanor, and upon conviction thereof
shall be punished by a fine of fifty ($50) dollars and
imprisonment for a period of thirty (30) days for each
offense.
"
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