State v. White, 7307
| Citation | 67 Idaho 309,177 P.2d 472 |
| Decision Date | 11 February 1947 |
| Docket Number | 7307 |
| Parties | STATE v. WHITE |
| Court | United States State Supreme Court of Idaho |
Appeal from District Court, Third Judicial District, Ada County Charles E. Winstead, Judge.
Judgment reversed and cause remanded with instructions.
E. G Elliott, of Boise, for appellant.
The provision in I.C.A. § 49-121 that "In the trial of all actions brought for the violation of or for any cause arising under any city ordinance, all said matters shall be tried and disposed of without a jury," is void and unconstitutional and in violation of and in contravention of the State and Federal Constitutions. Article I, Sections 7 and 13, Idaho Constitution, and Article XII, Section 2; United States Constitution, Article III; Amendments V, VI and XIV.
Judgments of police courts of cities of the first class on appeal to the District Court are subject to review in the same manner as appeals from Justice Courts. I.C.A. § 49-121, I.C.A.
Criminal cases appealed to the District Court from Justice Courts must be tried anew, or de novo, in the District Court. I.C.A § 19-4042; State v. Stafford, 26 Idaho 381, 143 P. 528; State v. Ashby, 40 Idaho 1, 230 P. 1013.
Frank Langley, Atty. Gen., J. R. Smead, Asst. Atty. Gen., James W. Blaine, Pros. Atty., and C. Stanley Skiles, City Atty., both of Boise, for respondent.
The right of trial by jury guaranteed by our State Constitution applies only to cases which at the time of its adoption were cognizable at common law or our territorial statutes. Article I, Section 7, Constitution; Christensen v. Hollingsworth, 6 Idaho 87, 53 P. 211, 96 Am.St.Rep. 256; Shields v. Johnson, 10 Idaho 476, 79 P. 391, 3 Ann.Cas. 245; State v. Miles, 43 Idaho 46, 248 P. 442; Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046, 18 Am.Cas. 674.
A person charged with the violation of a city ordinance is not guaranteed a jury trial by either the state Constitution or the Constitution of the United States: State v. City of Topeka, 36 Kan. 76, 12 P. 310, 59 Am.Rep. 529; Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223; State ex rel Belt v. Kennan, 25 Wash. 621, 66 P. 62; Harlow v. Clow, 110 Or. 257, 223 P. 541; Cranor v. City of Albany, 43 Or. 144, 71 P. 1042; McInerney v. City of Denver, 17 Colo. 302, 29 P. 516.
In that class of proceedings which are not within the constitutional provisions guaranteeing a jury trial, the fact that an appeal is allowed does not entitle the parties to demand a jury trial on appeal. Hempstead County v. Hope Bridge Co., 132 Ark. 412, 200 S.W. 983; State ex rel. Neyland v. Read, 50 La.Ann. 445, 23 So. 715; City of Clovis v. Dendy, 35 N.M. 347, 297 P. 141; Seward v. Denver & R. G. R. Co., 17 N.Mex. 557, 131 P. 980, 46 L.R.A.,N.S., 242.
This is especially true for the reason that, although the case is tried de novo in the District Court, the Court is required to try the case in the same manner in which it was tried in the lower Court. In re Sanford, 117 Kan. 750, 232 P. 1053; City of Portland v. White, 106 Or. 169, 211 P. 798; Laws 1907, p. 88, Sec. 57, Subd. 5 (Charter).
December 11, 1945, Cornelia White, defendant and appellant, was tried and convicted in police court of a misdemeanor under an ordinance of Boise City for allowing a vicious dog to run at large within the city limits. She was adjudged to pay a fine of $ 10 and costs, or imprisonment in the city jail until the fine and costs were paid, at the rate of $ 2 per day, not exceeding five days. December 20, 1945, appellant appealed to the District Court of the Third Judicial District of the State of Idaho, in and for Ada County, from the judgment in police court. January 17, 1946, appellant filed a demurrer in District Court alleging that the complaint did not state facts sufficient to constitute a public offense. March 19, 1946, the demurrer having been argued and taken under advisement, the court overruled the same. April 19, 1946, appellant demanded a jury trial, and on the same date, the demand for a jury trial was denied and the case was tried before the Honorable Charles E. Winstead, District Judge. On said April 19, 1946, the trial judge adjudged appellant guilty as charged in the complaint, and sentenced her to pay a fine of $ 25 and costs. April 20, 1946, appellant appealed to this court from the judgment of conviction in the District Court.
The Specifications of Error disclose that:
(1) "The Court erred in overruling appellant's demurrer to the complaint."
(2) "The Court erred in denying appellant a trial by jury."
(3) "The Court erred in adjudging appellant guilty of the offense charged and sentencing her to pay a fine of $ 25.00 and costs."
Under the provisions of Section 49-1109, I.C.A., which deals with the legislative powers of municipal corporations, it is provided that municipal corporations may: "Make all such ordinances, by-laws, rules, regulations, resolutions not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this title granted, maintaining the peace, good government and welfare of the corporation and its trade, commerce, manufacture, and to enforce all ordinances by inflicting fines or penalties for the breach thereof, * * *."
Specifications 1 and 3 will be considered together. At page 6 of appellant's brief, it is said: "What the state declares to be a crime is not a crime under the ordinance and what the ordinance declares to be a crime is not a crime under the state law." If we understand appellant correctly, she is attempting to make it appear that the ordinance does not classify dogs in the same manner as they are classified by the state statute, and for that reason there is a conflict between the state statute and the city ordinance. The State does not license dogs, although at one time counties, by order of the Board of County Commissioners were authorized to license them, but that provision was later repealed. Based upon the asserted conflict, appellant has urged that the ordinance under which the prosecution was had is void. We take it that it is unnecessary, in order...
To continue reading
Request your trial
-
State v. Bennion
...its progeny, State v. Leonard, 67 Idaho 242, 176 P.2d 214 (1946); State v. Brunello, 67 Idaho 242, 176 P.2d 212 (1946); State v. White, 67 Idaho 309, 177 P.2d 472 (1947); and Miller v. Winstead, 75 Idaho 262, 270 P.2d 1010 (1954). In these cases, the Court dealt with I.C. § 49-121, a statut......
- State v. Taylor
-
State ex rel. Suchta v. District Court of Sheridan County
...settled in Idaho that a jury trial must be given in such cases on appeal. State v. Romich, 67 Idaho 229, 176 P.2d 204, 210; State v. White, 67 Idaho 309, 177 P.2d 472. In the first of these cases the court concluded: 'The trial court should have granted the appellant a trial by jury, regard......
-
Miller v. Winstead
...214, and State v. Brunello, 67 Idaho 242, 176 P.2d 212, all decided by this court in December, 1946, and later the case of State v. White, 67 Idaho 309, 177 P.2d 472, decided on February 11, 1947; each of these cases arose under a violation of a city ordinance of Boise City. This court then......