Herz v. Hamilton

• Decision Date: 12 February 1924
• Docket Number: No. 35821.,35821.
• Citation: 198 Iowa 154,197 N.W. 53
• Parties: HERZ v. HAMILTON, JUDGE OF THE DISTRICT COURT, ACTING AS MAGISTRATE.
• Court: Iowa Supreme Court

198 Iowa 154

197 N.W. 53

HERZ

v.HAMILTON, JUDGE OF THE DISTRICT COURT, ACTING AS MAGISTRATE.

No. 35821.

Supreme Court of Iowa.

Feb. 12, 1924.

Appeal from District Court, Woodbury County; C. C. Hamilton, Judge.

Original proceeding in this court in certiorari to review the action of the respondent as judge of the district court in requiring the petitioner to enter into security to keep the peace. Writ dismissed. Proceeding affirmed.Carlos W. Goltz, of Sioux City, for appellant.

Ben J. Gibson, Atty. Gen., B. J. Powers, Asst. Atty. Gen., and O. T. Naglestad, Co. Atty., O. D. Nickle, Asst. Co. Atty., and Kindig, McGill, Stewart & Hatfield, all of Sioux City, for appellee.

FAVILLE, J.

The respondent is one of the judges of the district court of the Fourth judicial district. On or about July 12, 1923, proceedings were instituted before the respondent as a magistrate for the purpose of determining whether or not the petitioner should be required to enter into security to keep the peace. The petitioner was brought before the respondent in said matter, and a trial and hearing were had, and the petitioner was required to enter into a bond to keep the peace, as required by the statute.

[1] I. Upon the hearing before the respondent the petitioner, through his counsel, demanded the right to a trial by jury on the question as to whether or not he should be placed under bond to keep the peace. The respondent denied the demand of the petitioner in this regard. The proceedings are had under chapter 4, tit. 25 (section 5105 et seq.), of the Code. We recently had this chapter before us for consideration, and reviewed at some length its various provisions in Merritt v. Merritt, 193 Iowa, 899, 188 N. W. 32. It is unnecessary that we repeat the discussion at this time.

As stated in the Merritt Case, the proceeding is not criminal, but is sometimes referred to as being quasi criminal. In a criminal proceeding, in order to sustain a conviction, the evidence must establish guilt beyond a reasonable doubt. In the proceeding for security to keep the peace it is only required that “if there be just reason to fear the commission of the offense” the person complained of shall be required to enter into an undertaking to keep the peace. The difference is manifest. The two proceedings are quite the opposite of each other. One seeks to punish crime; the other to prevent it. That the proceeding is not criminal, see Howard v. State, 121 Ala. 21, 25 South. 1000;Arnold v. State, 92 Ind. 187;State v. Cooper, 90 Ind. 575;Ford v. State, 96 Miss. 85, 50 South. 497;Beslow v. Sargent, Sheriff, 74 Minn. 242, 76 N. W. 1129.

The petitioner contends that, inasmuch as the statute makes no provision for a trial by jury in a proceeding of this character, the statute is unconstitutional. The petitioner invokes the provisions of section 10, art. 1, of the Bill of Rights of the Constitution, which is as follows:

“In all criminal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him; to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and to have the assistance of counsel.”

The statute does not run counter to the constitutional provision. It is quite uniformly held that a right to a trial by jury is not infringed by statutes providing for the summary trial without a jury, even of small offenses against the state or of violations of municipal ordinances. State v. Conlin, 27 Vt. 318;McInerney v. Denver, 17 Colo. 302, 29 Pac. 516;Theisen v. McDavid, 34 Fla. 440, 16 South. 321, 26 L. R. A. 234;Duffy v. People, 6 Hill (N. Y.) 75; State v. Glenn, 54 Md. 572.

Code, § 4460 et seq., provides for punishment for contempt by fine or imprisonment, or both, but makes no provision for a jury trial. In McDonnell v. Henderson, 74 Iowa, 619, 38 N. W. 512, we said:

“Contempt proceedings cannot legally be tried by jury.”

In County of Blackhawk v. Springer, 58 Iowa, 417, 10 N. W. 791, a proceeding in lunacy, we said:

“It is contended that before a person can be adjudged insane he is entitled to the safeguards provided for in this section. It is clear to us that this provision applies only to criminal prosecutions or accusations, for offenses against the criminal law, where it is sought to punish the offender by fine or imprisonment. The inquest of lunacy by a board of commissioners, is in no sense a criminal proceeding. The restraint of an insane person is not designed as punishment for any act done.”

See, also, In re Bresee, 82 Iowa, 573, 48 N. W. 991.

This proceeding is not...