Salt Lake City v. Robinson

• Decision Date: 12 May 1911
• Docket Number: 2201
• Citation: 39 Utah 260,116 P. 442
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. ROBINSON

116 P. 442

39 Utah 260

SALT LAKE CITY v. ROBINSON

No. 2201

Supreme Court of Utah

May 12, 1911

On Application for Rehearing June 14, 1911.

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

H. F Robinson was convicted of violating an ordinance of Salt Lake City prohibiting the sale of intoxicating liquor after twelve o'clock at night, and he appeals.

AFFIRMED.

S. P Armstrong, for appellant.

H. J Dininny and P. J. Daly for respondent.

FRICK, C. J. McCARTY, J., concurs. STRAUP, J., dissenting.

OPINION

FRICK, C. J.

This is an appeal from a judgment convicting the appellant of selling intoxicating liquor to-wit, beer, at a time when it is alleged such sale was prohibited by the ordinances of Salt Lake City. The original complaint or information charging appellant with the offense was filed in the city or police court of Salt Lake City, and, after trial there, he appealed from the judgment of conviction to the district court of Salt Lake County, and from a like judgment in that court appeals to this court.

The information and conviction are based upon an ordinance of Salt Lake City which went into effect April 7, 1909, and which, so far as material, reads as follows:

"It shall be unlawful for any person . . . to sell, give away, serve, or otherwise dispose of any spirituous, vinous, malt, beer, or other intoxicating drink, at any time on the first day of the week, commonly called Sunday, or between twelve o'clock midnight and six o'clock a. m. on any day of the week."

The first question presented is whether a proceeding which is based upon an information charging a person with the violation of the provisions of an ordinance of a city of this state is civil or criminal. As a matter of fact, the question, in this case, is important only for the purpose of determining the rule of construction to be applied and as it may affect the payment of costs. The district court in trying the case proceeded upon the theory that it was a criminal prosecution, as contended for by appellant, tried the case and instructed the jury upon that theory, and hence the appellant has no cause for complaint on that ground. With respect to the costs, the matter is, however, different. If proceedings instituted for the purpose of procuring convictions for the violations of ordinances are criminal, then one rule with respect to the payment of costs prevails; while if they are civil, then another and different rule must be applied. Counsel for appellant contends further that if convictions for the violations of municipal ordinances must be obtained by criminal prosecutions, then the rule of strict construction applies. It is for these reasons, therefore, that it becomes necessary for us to determine whether the proceeding in question is civil or criminal.

Whether proceedings to punish for violations of municipal ordinances are in their nature civil or criminal is a question upon which the decisions of the courts are conflicting. The weight of authority seems to incline to the view that such proceedings and the consequences flowing therefrom are civil, or at most quasi criminal. McQuillin, Municipal Ordinances, in discussing the nature of such proceedings (section 304) says:

"The weight of judicial authority declares that the prosecution is in the nature of a civil action for the recovery of a debt. Sometimes the action is regarded as criminal, especially where the offense constitutes a misdemeanor under the laws of the state."

We think the true rule is stated by Mr. Dillon, in his excellent work on Municipal Corporations (4th Ed.) section 411, where, in discussing this subject he says:

"The cases on this subject are not harmonious, but the difference in them depends, to a large extent, upon the character of the act or offense charged, the nature of the charter, and of the legislation in a particular state as to the extent of jurisdiction intended to be conferred upon the municipal authorities."

If the statute under which the cities of this state are chartered is examined, it will be observed that the power conferred upon cities with respect to the punishment for violations of city ordinances is treated the same as is the punishment for statutory misdemeanors generally. The penalties, usually may be the same and may be enforced in the same manner; that is, by fine and imprisonment, or by both. Nor, as a general rule, is the right to sentence to imprisonment to the city jail made dependent on a failure to pay a fine, but imprisonment may be imposed as a part or as the sole punishment. Moreover the courts of this state have always regarded the proceedings instituted for violations of ordinances as in their nature criminal, and not civil. Trials, so far, as we are aware have always been conducted upon that theory. Again the rules of evidence and the quantum of proof, as well as the rules of construction and procedure applicable to criminal prosecutions, have always been applied and enforced in prosecutions for violations of city ordinances by the courts of this state. In addition to this, there are many sections of our statute relating to the general subject now under consideration from which it is apparent that the framers of those sections regarded the proceedings in such cases as in their nature criminal, and not civil. We are clearly of the opinion that, under our statutes, prosecutions like the one at bar are in their nature criminal, and that the rules pertaining to criminal prosecutions for misdemeanors under the statute are applicable.

By what we have said we do not mean that the accused may, under all circumstances, demand a jury trial in the city or police courts. The general rule to be deduced from the authorities upon this subject is to the effect that for minor or petty offenses, if the accused is given the right to an appeal and upon such appeal may submit his case to a jury, that the right of a trial by jury is not invaded or denied, although no jury be permitted in the city or police court. It is only just to counsel for appellant to state that he conceded the rule to be as we have stated it.

This brings us to the important question in the case. As we have seen, appellant was convicted of having sold beer, an intoxicating liquor, between the hours of twelve o'clock midnight, and six o'clock a. m., during which time such sales were prohibited by the ordinance in question. The policeman who made the arrest, and who apparently apprehended the appellant while in the act of selling the beer in question, testified in substance that the sale occurred "at twenty or twenty-five minutes after twelve," midnight; that he looked at his watch at the time, and that it was regulated according to the time that is generally observed in Salt Lake City. This time is known as standard mountain time and on Main Street of Salt Lake City is twenty-seven minutes, thirty-six seconds faster than solar time. Appellant contends that "midnight," as mentioned in the ordinance, is not reached until the sun passes a point called the "nadir," which is directly opposite a point called the "zenith" in Salt Lake City. In other words, counsel contends that midnight in Salt Lake City, under the ordinance in question, must be determined according to solar, and not according to standard mountain time. Upon the other hand, counsel for the city contend that standard mountain time is the time that is universally observed in Salt Lake City, and that that time, therefore, must control. The question, therefore, is, What system for the measurement of time is to be applied to the ordinance--standard mountain or mean solar time? Counsel for appellant has cited us to some cases in which he contends it is held, where a particular hour is fixed for the expiration of a contract, or where time is mentioned in a statute, or where an act must be done before a specified hour, such as noon or midnight, then the legal presumption is that mean solar time is intended or meant. It is insisted that the following cases support the doctrine contended for. Jones v. German Ins. Co., 110 Iowa 75, 81 N.W. 188, 46 L. R. A. 860; Rochester, etc. Ins. Co. v. Peaslee, etc. Co., 120 Ky. 752, 87 S.W. 1115, 89 S.W. 3, 27 Ky. Law Rep. 1155, 28 Ky. Law Rep. 130, 1 L. R. A. [N. S.] 364; Henderson v. Reynolds, 84 Ga. 159, 10 S.E. 734, 7 L. R. A. 327; Searles v. Averhoff, 28 Neb. 668, 44 N.W. 872.) Counsel has cited some other cases, but in our judgment, they are not in point here.

The case of Jones v. German Ins. Co., supra, was decided by the Supreme Court of Iowa in 1899. In that case the question involved was whether an insurance policy which according to its terms, expired at "noon" of a certain day should be governed by solar or standard time. If the former time governed, the policy was still in force, for the reason that the fire started at eleven o'clock and forty-five minutes a. m., or fifteen minutes before the hour of noon, the time when the policy expired; but if standard time controlled, then the policy had ceased to be in force for the space of two and one-half minutes when the fire started. The court held that the presumption was that the parties to the contract intended solar time, and that the burden of proof was on the insurance company to show that some other time was meant. The question was accordingly submitted to the jury, and they very naturally found that solar time was meant, and that the policy was still in force when the fire started.

The case of Rochester, etc. Ins. Co. v Peaslee, etc. Co., supra, was a case where the facts were identical with those in the Iowa case just referred to. In the latter case, however, if solar time was meant, then the policy had expired about two and one-half minutes when the fire started; but if standard time...