Fortune v. Incorporated Town of Wilburton

• Decision Date: 17 October 1905
• Docket Number: 2,179.
• Parties: FORTUNE v. INCORPORATED TOWN OF WILBURTON.
• Court: U.S. Court of Appeals — Eighth Circuit

142 F. 114

FORTUNE v. INCORPORATED TOWN OF WILBURTON.

No. 2,179.

United States Court of Appeals, Eighth Circuit.

October 17, 1905

James S. Arnote, for plaintiff in error.

Charles H. Hudson, for defendant in error.

Before VAN DEVANTER, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

Fortune was found guilty in the mayor's court of Wilburton, Ind T., of the violation of a town ordinance, and sentenced to pay a fine of $10 and costs. His appeal to the United States Court for the Central District of Indian Territory was dismissed for the reason that the action was a civil one, and he had not perfected the appeal by filing an affidavit in the court of first instance to the effect that it was not taken for the purpose of delay, but that justice might be done him. The judgment of dismissal was affirmed by the United States Court of Appeals in the Indian Territory. 82 S.W. 738.

Under the Arkansas statutes in force in the territory, appeals from municipal courts are taken in the same manner as from decisions of justices of the peace; an affidavit being requisite in civil, but not in criminal, cases. Fortune contends that the case against him was a criminal prosecution, both under general principles of law and under the controlling statutes of Arkansas. The offense of Fortune was not a statutory misdemeanor, but was merely a violation of a local police regulation of the town. The complaint against him, which was framed in the language of the ordinance, would not have supported a conviction of any public offense under the statutes. The weight of authority is that such an action is civil in character, and not criminal even though, as in this case, payment of the penalty assessed is authorized to be enforced by the arrest and detention of the person. McQuillan on Municipal Ordinances, Sec. 304; Dillon Municipal Corp. Secs. 411, 432; Williams v Augusta, 4 Ga. 509; Shafer v. Mumma, 17 Md 331, 79 Am.Dec. 656; Lewiston v. Proctor, 27 Ill. 414, 419; Quincy v. Ballance, 30 Ill. 185; Alton v. Kirsch, 68 Ill. 261; Tiedeman on Municipal Corp. Sec. 156; McGear

v. Woodruff, 33 N.J.Law, 213, 217; Greensburgh v. Corwin, 58 Ind. 518; Hammond v. Ry. Co. (Ind. App.) 31 N.E. 817, 820; State v. Renick, 157 Mo. 292, 57 S.W. 713; St. Louis v. Knox, 74 Mo. 79; In re Miller, 44 Mo.App. 125; Bristol v. Burrow, 73 Tenn. 128; Chafin v. Waukesha County, 62 Wis. 463, 467, 22 N.W. 732; Sutton v. McConnell, 46 Wis. 269, 50 N.W. 414.

With some exceptions, unnecessary to be noted, the civil and criminal procedure of Arkansas and the laws relating to municipal corporations and to the jurisdiction and procedure of justices of the peace in civil and criminal cases were put in force in the Indian Territory. Act May 2, 1890, c. 182, 26 Stat. 81; Act March 1, 1895, c. 145, 28 Stat. 693; Act June 28, 1898, c. 517, Sec. 14, 30 Stat. 499. A careful investigation has failed to disclose anything in these statutes that changes the prevailing doctrine as announced by the courts, or that prescribes for this particular class of cases a different procedure for appeals than obtains in civil actions generally. A section of the law relating to municipal corporations provides that the mayor shall be a conservator of the peace within the corporate limits, confers upon him all of the powers and jurisdiction of a justice of the peace in all matters, civil and criminal, arising under the laws of the state, imposes upon him the performance of all duties required of him by the municipal laws and...