State v. Kennan

• Decision Date: 23 August 1901
• Citation: 66 P. 62,25 Wash. 621
• Court: Washington Supreme Court
• Parties: STATE ex rel. BELT v. KENNAN, Police Justice.

66 P. 62

25 Wash. 621

STATE ex rel. BELT v. KENNAN, Police Justice.

Supreme Court of Washington

August 23, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Application by the state, on relation of W. L. Belt, for a writ of prohibition against H. L. Kennan, police justice of the city of Spokane. From an order granting the writ, defendant appeals. Reversed.

T. D. Rockwell, for appellant.

Graves & Graves and Sullivan, Nuzum & Nuzum, for respondent.

REAVIS C.J.

Appeal from proceeding in the superior court for a writ of prohibition. The appellant is police justice in the city of Spokane. In 1899 respondent, Belt, was charged with an offense under a city ordinance which reads as follows 'Section 1. Every person who shall on any street sidewalk, alley, or public place, or in or upon any private house, building or premises, act in a noisy, riotous or disorderly manner shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than one dollar nor more than fifty dollars.' He appeared in the police court, and entered a plea of not guilty, and demanded to be tried by a jury. The justice refused to call a jury, whereupon respondent made application to the superior court for a writ of prohibition. To the affidavit for the writ appellant interposed a demurrer on two grounds,--that the affidavit did not state facts sufficient to constitute a cause of action, and that respondent was not entitled to the relief sought. The court overruled the demurrer, and, appellant electing to stand thereon, a peremptory writ of prohibition was granted, from which an appeal was taken to this court.

Appellant here urges that respondent, Belt, had a plain, speedy, and adequate remedy at law, and that the writ of prohibition should not have been granted by the superior court. The remedy by appeal may be doubtful. This view was taken by the supreme court of the United States in Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223. The writ was granted by the superior court to an inferior tribunal, because, as viewed by the superior court, the inferior was proceeding without jurisdiction, and its conclusion would be void; and the discretion of the court in the use of the remedy will not be disturbed here. But it is urged upon the merits by counsel for respondent that the offense which respondent is charged with is of right triable by jury, and it is contended that powers conferred upon cities of the first class by the legislature authorize the punishment of criminal offenses as such, and that thus the constitutional right of trial by jury exists in each case denounced by such city ordinance. After enumerating the legislative powers of the municipality in subdivision 36 of section 739, 1 Ballinger's Ann. Codes & St., it further provides: '* * * For the arrest, trial and punishment of all persons charged with violating any of the ordinances of said city; but such punishment shall in no case exceed the punishment provided by the laws of the state for misdemeanors'; and it is argued that this is a designation of all such offenses under municipal ordinances as misdemeanors. Section 7435, 2 Ballinger's Ann. Codes & St., is cited as fixing the limit of punishment under the Criminal Code for a misdemeanor, which is by imprisonment in the county jail not more than one year, or by a fine of $500, or by both such fine and imprisonment, and counsel demands, 'Can such a punishment be inflicted by a police justice?' The question can be answered emphatically, 'No.' But it cannot be assumed that the legislature intended such a result. Section 7435 is a general provision of the Penal Code relating to public crimes, particularly those against the state. Section 4683, 2 Ballinger's Ann. Codes & St., defines the jurisdiction of justices of the peace in criminal cases as follows: '* * * They shall also have jurisdiction over all criminal cases coming under any city or town ordinance, and on conviction shall have power to fine the person so offending in any sum not exceeding one hundred dollars.' But the special law applicable to the police justice is found in Sess. Laws 1899, p. 135, in which act two justices of the peace are provided for each incorporated city of the first class, which may include outlying territory. One of such justices of the peace shall be designated by the mayor of the city as the police justice, and section 3 provides that such justice, in addition to his powers as justice of the peace, 'shall have exclusive jurisdiction over all offenses defined by any ordinance of the city, and all other actions brought to enforce or recover any license, penalty or forfeiture declared or given by such...