State ex rel. Town of Lowell v. Meredith, 30701

• Decision Date: 31 March 1966
• Docket Number: No. 30701,30701
• Citation: 215 N.E.2d 183,247 Ind. 273
• Parties: STATE of Indiana ex rel. TOWN OF LOWELL, Appellant, v. Allen C. MEREDITH, Appellee.
• Court: Indiana Supreme Court

Page 183

215 N.E.2d 183

247 Ind. 273

STATE of Indiana ex rel. TOWN OF LOWELL, Appellant, v. Allen C. MEREDITH, Appellee.

No. 30701.

Supreme Court of Indiana.

March 31, 1966.

Charles E. Van Nada, Victor J. Roberts, Lowell, for appellant.

Straley Thorpe, Hammond, for appellee.

RAKESTRAW, Judge.

On May 10, 1961, the Lowell police chief filed an affidavit against the appellee charging him with violation of the Lowell parking ordinance No. 3--1950. The affidavit was filed before Acting Justice of the Peace, Elmer E. Pace, and was in the general form of a criminal affidavit. A warrant was issued for the arrest of the appellee, and on May 11, 1961, the appellee entered a plea of guilty and was fined $5.00 and costs by the Justice of the Peace. On May 22, 1961, the appellee through his attorney filed a motion for a new trial. On May 24, 1961, the appellant requested that the cause be sent to the Circuit Court of Lake County on Appeal. The case was taken from the Lake Circuit Court to the Jasper Circuit Court on a change of venue, and the appellee filed an answer setting forth that the ordinance was void because it had not been published by at least two publications one week apart as provided by law, and because the penal section of said ordinance was beyond the powers of the town to promulgate and enforce. The case was ultimately submitted to the court on a stipulation of facts, which stipulations specified that the ordinance had been published on Thursday, October 19, 1950, in the Lowell Tribune, and that this insertion is the only insertion in any newspaper made for the purpose of procuring a publication of the ordinance.

The trial court entered a judgment for the appellee on the ground that the purported ordinance of the town of Lowell was void.

The appellant first contends that the appellee did not timely take his appeal from the Justice of the Peace. It argues that the action in the Justice of the Peace Court was criminal in nature, and that an appeal from a criminal conviction in the Justice of the Peace Court was required to be taken within 10 days of the time it was entered, and that an appeal from an action of this nature should have been taken to the Lake Criminal Court instead of the Lake Circuit Court, as was done in this case. The appellant urges that the town was authorized to exact 'fines' and that 'fines' are criminal penalties to be imposed. It urges that the legislature may delegate to municipalities the power to enforce their ordinances by punishment, though it readily admits that there are no Indiana cases on this point.

In Indiana it has been uniformly held that actions to recover penalties for the violation of city ordinances are civil in nature. Ewbanks Indiana Criminal Law, Symmes Ed., Ch. 1, § 1, page 1, reads as follows:

'Violations of municipal ordinances bear a close resemblance to crimes, but penalties in such cases are recovered in civil suits brought in the name of the city or town in which the offense was committed, and the proceedings are governed by the rules of civil procedure.'

See also West's Indiana Law Encyclopedia, Vol. 21, Municipal Corporations, §§ 353--355.

While there has been some confusion following a prison sentence for the violation of a city ordinance, it has long been unquestioned that the action to enforce a monetary penalty only is a civil action. See Biedinger v. City of East Chicago (1958), 129 Ind.App. 42, 154 N.E.2d 58, together...