In re Petition of F. A. Rolfs for A Writ of Habeas Corpus

• Decision Date: 16 August 1883
• Citation: 30 Kan. 758,1 P. 523
• Parties: In the Matter of the Petition of F. A. ROLFS for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

1 P. 523

30 Kan. 758

In the Matter of the Petition of F. A. ROLFS for a Writ of Habeas Corpus

Supreme Court of Kansas

August 16, 1883

Decided July, 1883

PETITION by F. A. Rolfs, who alleged that he was illegally restrained of his liberty by W. D. Shallcross, marshal of the city of Leavenworth. Hearing at chambers, before BREWER, J. who filed the following opinion, August 16, 1883:

Reversed.

H. T Green, W. Green, and J. H. Gillpatrick, for petitioner; and H. Miles Moore, for respondent.

OPINION

BREWER, J.

This is an application in habeas corpus, brought by the petitioner, alleging that he is illegally restrained by one W. D. Shallcross, marshal of the city of Leavenworth. The respondent returns that he holds the petitioner in custody by virtue of a commitment issued by the police judge of the city of Leavenworth, reciting a conviction of the petitioner on a charge of locating and maintaining a nuisance, and a sentence to pay a fine of ten dollars and costs. Upon the hearing before me, the facts of the case have been fully developed, and a number of questions presented and argued. As a sufficient statement of the facts, it may be said that the petitioner was brought before the police judge on a charge of locating and maintaining a nuisance, the particular nuisance complained of being a hog-pen; that upon the calling of the case for trial, he challenged the sufficiency of the complaint, which challenge was overruled. He entered a plea of not guilty, and demanded a trial by jury, which demand was also refused. The case was tried before the police judge, and the petitioner found guilty, and sentenced to pay a fine of ten dollars and costs. All these facts appear on the docket of the police judge. A commitment was issued on the sentence to the city marshal, who placed the petitioner in the city jail, and has since compelled him to work on the public streets. Immediately after the conviction, the petitioner demanded an appeal to the district court, which was refused during the same day. For the purpose of prosecuting proceedings in error in the district court, he tendered a bond to the police judge with sufficient securities, which bond the police judge declined to receive or approve, or in any manner to stay the operation of the sentence.

This states all the facts necessary to present the questions discussed by counsel, and in reference to many of them I have little doubt, and shall simply state in a word the propositions which I think dispose of those questions.

1. Where a party is held under process issued upon any final judgment of a court of competent jurisdiction, the inquiry in habeas corpus is limited to the question: Was the judgment void, or has it been stayed, superseded, or otherwise spent its force? No mere errors or irregularities in the proceedings will justify a discharge. (Civil Code, § 671, P 2; Ex parte Phillips, 7 Kan. 48; Ex parte Nye, 8 id. 100; In re Scrafford, 21 id. 735; In re Petty, 22 id. 477; In re Goldsmith, 24 id. 757.)

2. The police judge has exclusive original jurisdiction over all offenses against the ordinances of the city. (City Charter, § 51.)

3. The city has power to punish any criminal violation of its ordinances, by fine, confinement in the city prison, or labor on the streets. (Dassler & Shafer's Compilation of City Ordinances, ch. 17, page 132, §§ 417, 418, 419.) These sections are within the powers conferred by art. 3, § 11, P 37, of the act incorporating cities of the first class, passed in 1881, and amended by chapter 34, Laws of 1883, and do not trespass upon any constitutional provision; for it is undoubted that the legislature may punish any criminal violation of its statutes by confinement and hard labor, and may likewise delegate to municipal corporations similar powers in reference to violation of their ordinances. (1 Dillon on Mun. Corp., 3d. ed., §§ 411, 428, with authorities cited in the notes.)

4. The keeping of a hog-pen may be a nuisance; and as such a violation of criminal law, one which was punishable as a nuisance at the common law, and is punishable under our statutes. (Stephens's Nisi Prius, §§ 2359, 2363; City Charter, § 11, P 11.)

5. Said P 11 authorizes the city council "to make regulations to secure the general health of the city, to prevent and remove nuisances, and to make, prescribe and enforce regulations for the clearing and keeping in order of all slaughter houses, or other places where offensive matter is kept or permitted to accumulate." Under this grant of power the city council may provide for punishment by fine and imprisonment of any party guilty of a nuisance, which, like the keeping of a hog-pen, may be dangerous to the public health. (1 Dillon on Mun. Corp., 3d ed., §§ 375, 376, and cases cited in the notes.)

Passing by these general propositions, which to my mind are clear, and which dispose of many of the questions discussed by counsel, I come to the only matter which presents any difficulty or causes me any embarrassment. That question may be thus stated: The constitution in its bill of rights, § 5, provides that "the right of trial by jury shall be inviolate"; and § 10, that "in all prosecutions the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." Again, the maintaining of a public nuisance, which is of a character to endanger the public health, is a criminal act, and a prosecution therefor is a prosecution for a criminal offense, and not a proceeding to collect a debt or for the enforcement of a mere municipal regulation, and therefore is to be controlled by the ordinary rules concerning criminal prosecutions. (Neitzel v. City of Concordia, 14 Kan. 446.)

Again, the city charter, § 53, authorizes summary trials by the police judge, without a jury, of all violations of city ordinances; and by § 60 denies an appeal unless the fine assessed exceeds $ 20, or the imprisonment one month. Hence the petitioner, having been fined only $ 10, has, notwithstanding his demand for a public trial by an impartial jury of the district, been convicted of a criminal offense, and punished in defiance of the constitutional guaranty. Can such a judgment be sustained? Was he constitutionally entitled to a jury? If so, was the deprivation of this constitutional right a mere irregularity, which did not avoid the judgment and is not subject to review in habeas corpus? In the case of The City of Emporia v. Volmer, 12 Kan. 622, it was held by the supreme court that a summary trial without a jury in a municipal court could be sustained if the defendant had an appeal, clogged by no unreasonable restrictions, to an appellate court in which he had a right of trial by jury. That is as far as the decisions in this state have gone. But the claim is now made that a party may be subjected to a summary trial before a police judge for a violation of a city ordinance involving an act of a criminal nature, without any appeal to a higher court; and this notwithstanding the constitutional guaranty of a public trial by an impartial jury of the district where the offense is charged to have been committed.

I cannot assent to this claim; and while I may not be able in the brief time at my command to state all the reasons which control my judgment, I shall endeavor to state some of the more important. The constitutional provision that the right of trial by jury shall be inviolate, is common to many constitutions, and has...