State v. Ketterer

• Decision Date: 26 October 1956
• Docket Number: No. 36932,36932
• Citation: 79 N.W.2d 136,248 Minn. 173
• Parties: STATE of Minnesota, Plaintiffs, v. Leo KETTERER, Defendant.
• Court: Minnesota Supreme Court

Page 136

79 N.W.2d 136

248 Minn. 173

STATE of Minnesota, Plaintiffs, v. Leo KETTERER, Defendant.

No. 36932.

Supreme Court of Minnesota.

Oct. 26, 1956.

Syllabus by the Court

1. Although offenses involving the violation of municipal ordinances to which a penalty, such as fine or imprisonment, is attached as a punishment are 'criminal offenses' within the literal meaning of the constitutional provision (Minn.Const. art. 1, § 6) which guarantees to the accused in all criminal prosecutions the right to a speedy trial by an impartial jury, purely for historical reasons, the constitutional guarantee of jury trial does not apply to them.

2. The constitution preserves the right to jury trial only to the extent that such right existed by the laws of our territory when the constitution was adopted, and such right was thereby neither extended nor limited.

3. Prior to the adoption of the constitution, the right of jury trial existed under territorial law only with respect to those criminal prosecutions relating to acts which by statute had been made offenses against the peace and dignity of the state as a Whole and not to those offenses involving nothing more than a violation of municipal police regulations or ordinances.

4. Violations of punitive municipal ordinances and prosecutions therefor, though criminal in nature, are sui generis.

5. M.S.A. §§ 488.25 and 633.22 do not afford the accused the right to a jury trial upon appeal from a conviction by a municipal court for an ordinance violation.

6. Since prosecutions for the violation of punitive ordinances are essentially criminal in nature, there is no merit in defendant's assertion that, upon appeal to the district court, he was entitled to an advisory jury under Rule 39.02 of the Rules of Civil Procedure.

The question certified answered in the negative.

John C. Haave, City Atty., Montevideo, R. M. Saltness, Dawson, for plaintiff.

Johanson Winter & Lundquist and Gunder Gunhus, by Marvin E. Lundquist, Wheaton, for defendant.

MATSON, Justice.

This case comes up for review upon the certification by the district court, pursuant to M.S.A. § 632.10, that an important and doubtful question of law has arisen in connection with the trial and conviction of the defendant.

We have this question: Does a defendant who has appealed to the district court from a conviction by a municipal court for a violation of a city ordinance, Upon and by virtue of such appeal, have either a constitutional or a statutory right to a jury trial in the district court? A subordinate question arises as to the right of the defendant to an advisory jury pursuant to Rule 39.02 of the Rules of Civil Procedure.

Defendant was tried and convicted without a jury in the municipal court of Montevideo for the violation of two city ordinances, first, for permitting an unmarried person under the age of 18 to remain in a public dancehall of which he was the manager and proprietor contrary to the provisions of the Ordinances of the City of Montevideo, c. 73, and, secondly, for permitting the drinking of intoxicating liquor in his place of business in violation of c. 153 of the ordinances of said city.

Pursuant to § 488.25 the defendant appealed the convictions to the district court where by stipulation the actions were consolidated for trial. Initially the actions were placed on the jury calendar, but thereafter a motion by the state for trial to the court without a jury was granted. A subsequent motion by the defendant for a jury trial was denied. The defendant then moved to try the actions to the court with an advisory jury pursuant to Rule 39.02. This latter motion was likewise denied by the trial judge. When the cases were called for trial the defendant again renewed his motion for a jury trial. Upon the denial of this latter motion, counsel for the state and the defendant stipulated that the question of law raised should be submitted to the supreme court as a doubtful question of importance. The trial court granted the request for certification and the matter is now before us for review.

1--2. Basic to a consideration of defendant's contention that, under Minn.Const. art. 1, §§ 6 and 7, M.S.A., he is entitled to a jury trial is a determination not only of the true nature of municipal ordinance violations and of the proceedings for their prosecution but also of the preconstitution status of such violations. Many courts have applied to these violations a confusing variety of terms by stressing either the civil or the criminal aspects according to which aspect lent itself most conveniently to the reaching of a desired conclusion. ¹ Most courts, mindful of practices at common law prior to the adoption of their state constitution, hold prosecutions under the ordinances to be civil proceedings. ² This court, with a happy indifference to consistency, has referred to offenses against municipal ordinances and to proceedings for prosecution of the offenders as noncriminal, ³ quasi-criminal, ⁴ petty, ⁵ and criminal. ⁶

Our confusing nomenclature no doubt stems in part from a failure to keep in mind the scope of the common-law right to jury trial when our state constitution was adopted and further, because of this failure, from an attempt to reconcile the status of ordinance violations at common law with the literal wording of our state constitution. The rapid growth in our urban population from less than 10 percent in 1860 to over 50 percent in 1950 ⁷ has increased the need for the regulation of crime, and this need has received little consideration on the state level but has been dealt with largely through an expansion of local regulation in the form of municipal ordinances. ⁸ The ever-increasing impact upon the citizens of prosecutions imposing a prison or financial penalty for the violation of ordinances demands a reappraisal of their intrinsic nature and place in our scheme of law enforcement. As realistically pointed out by Mr. Justice Mitchell in State ex rel. Erickson v. West, 42 Minn. 147, 151, 43 N.W. 845, 847 (wherein the earlier decision of City of Mankato v. Arnold, 36 Minn. 62, 30 N.W. 305, was qualified and distinguished), offenses involving the violation of municipal ordinances to which a penalty, such as fine or imprisonment, is attached as a punishment are 'criminal' offenses within the literal meaning of that term as used in the constitutional provision which guarantees to the accused in all criminal prosecutions the right to a speedy trial by an impartial jury. Minn.Const. art. 1, § 6. In speaking of these violations, Mr. Justice Mitchell said, 42 Minn. 151, 43 N.W. 847:

'* * * They come strictly within the definition of 'crimes or criminal offenses,' The terms 'crime,' 'offense,' and 'criminal offense' are all synonymous, and ordinarily used interchangeably, and include any breach of law established for the protection of the public, as distinguished from an infringement of mere private rights for which a penalty is imposed or punishment inflicted in any judicial proceeding. * * * A municipal ordinance is as much a law for the protection of the public as is a criminal statute of the state, the only difference being that the one is designed for the protection of the municipality and the other for the protection of the Whole state, and in both cases alike the punishment is imposed for the violation of a public law. If the state itself, directly, should make the act an offense, and prescribe the punishment, there could be no question but that the act would be a 'crime' and the prosecution of it a 'criminal prosecution,' within the meaning of the constitution; and how can it make any difference, Either in the intrinsic nature of the thing or in the consequences to the accused, whether the state does this itself, or delegates the power to pass the law to the municipal authorities?' (Italics supplied.)

Although prosecutions for violations of municipal ordinances are intrinsically criminal in nature, within the literal meaning of the term 'criminal prosecutions' as used in Minn.Const. art. 1, § 6, it does not follow that the constitutional guarantee applies to them. They fall outside the constitution, not because they are noncriminal, but purely for historical reasons. It is elementary that the constitution preserves the right to jury trial only to the extent that such right existed by the laws of our territory when the constitution was adopted, and such right was thereby neither extended nor limited. ⁹

3--4. Prior to the adoption of the constitution, the right of jury trial existed under territorial law only with respect to those criminal prosecutions relating to acts which by statute had been made offenses against the peace and dignity of the state As a whole and not to those offenses involving nothing more than a violation of municipal police regulations or ordinances. ¹⁰ These so-called petty offenses had always theretofore been punishable by magisterial officers, in a summary way, without a jury, both in England and in the Colonies. ¹¹ In fact, prior to the adoption of the constitution, despite the intrinsically criminal character of certain ordinance violations, proceedings for their enforcement were treated as civil actions; the majority of states have regarded them as civil actions for the recovery of a debt. ¹² Clearly, ordinance violations at common law, and prior to the adoption of our Federal and state constitutions, were placed in an entirely different category from violations enacted for the protection of the realm as a whole. Instead of trying to distinguish such ordinances on the basis that they are civil, noncriminal, or quasi-criminal, it should be frankly recognized that they are criminal enactments which are historically sui generis.

Our decisions likewise demonstrate that prosecution proceedings under these punitive ordinances are sui generis. On no other basis can we explain the curious conclusions reached in the various cases. We have held that a...