Wong Sing v. City of Independence

• Decision Date: 27 November 1905
• Parties: WONG SING v. CITY OF INDEPENDENCE et al.
• Court: Oregon Supreme Court

83 P. 387

47 Or. 231

WONG SING v. CITY OF INDEPENDENCE et al.

Supreme Court of Oregon

November 27, 1905

Appeal from Circuit Court, Polk Country; William Galloway, Judge.

Wong Sing was convicted in a recorder's court of illegally selling liquor, and from a judgment of the circuit court dismissing a writ of review he appeals. Reversed.

This is a special proceeding to review a judgment of an inferior court. An accusation was filed in the recorder's court of the city of Independence against the plaintiff herein, which charge, omitting the formal parts, is as follows: "The said Wong Sing is accused by this complaint with the crime of selling spirituous or malt liquors in the city of Independence, Oregon, committed as follows, to wit: That said Wong Sing, in the city of Independence, in Polk country Oregon, did on the 14th day of December, 1904, and the 17th day of December, 1904, then and there being, did then and there sell, or cause to be sold, spirituous and malt liquors or spirituous or malt liquors, in the city of Independence without license, and contrary to the laws of the city of Independence, the same being a violation of section 7, of Ordinance 16, which provides for the punishment of such offenses, and contrary to the statutes in such cases made and provided, and against the peace and dignity of the city of Independence." A demurrer to this pleading was interposed, on the grounds that more than one offense was attempted to be charged and that the facts so stated do not constitute a crime. The demurrer was sustained as to the date, "the 17th day of December, 1904," as set out in the complaint, but overruled in all other respects, and, a trial being had, the plaintiff herein was found guilty as charged and sentenced to pay a fine and the costs and disbursements of the action. He thereupon sued out a writ of review, in pursuance of which the proceedings had against him in the recorder's court in such action, together with a certified copy of Ordinance No. 16, of that city, were certified up to the circuit court for that county, where upon a hearing based on such return, the writ was dismissed, and from the latter judgment he appeals to this court.

Oscar Hayter, for appellant.

G.A. Hurley, for respondents.

MOORE, J. (after stating the facts).

It is insisted by defendant's counsel, in support of the judgment of the circuit court, that plaintiff had a remedy by appeal from the judgment rendered against him in the recorder's court; and, this being so, a writ of review was not the proper remedy to correct the errors alleged to have been committed. Assuming, without deciding, that a writ of review does not lie in cases where a remedy by appeal exists, the authority relied upon as conferring the latter right will be examined. The charter reincorporating the city of Independence, filed in the office of the Secretary of State February 21, 1903 (Sp.Laws Or.1903. p. 703), does not in express terms grant such right, It is argued by defendant's counsel, however, that an ordinance of that city passed and approved in March, 1894, conferred the right of appeal from judgments rendered in the recorder's court, which municipal enactment was recognized and approved when the new charter was granted. The clause of the charter relied upon is as follows: "All ordinances heretofore passed and in force when this act takes effect, and not in conflict with any of its provisions, shall be and remain in force after this act takes effect until repealed by the city council." The ordinance in question is not certified up as a part of the transcript. There is printed in the brief of the defendant's counsel what purports to be section 13 of Ordinance No. 1, of the city of Independence, passed March 7 1894, and approved three days thereafter, of which the following is an excerpt, to wit: "Defendant may appeal from a judgment rendered in the recorder's court at any time within 30 days from its rendition." If the proof of the existence of this ordinance was adequate, we do not think the right attempted to be conferred could possibly be granted in the manner indicated. Jurisdiction of the subject-matter of actions depends for its exercise upon a valid grant of power, evidenced by proper legislative enactment. The parties to actions may waive their own rights and confer jurisdiction of their persons by a voluntary appearance, but they are powerless to confer upon any tribunal jurisdiction of an appeal, because the right to do so is not vested in them. The section of the charter hereinbefore quoted recognized the validity of ordinances"in force" when the act went into effect. An ordinance attempting to confer jurisdiction of the subject-matter of actions was never in force, and hence no appeal lies from a judgment rendered in the recorder's court of the city of Independence.

The conclusion thus reached brings us to a consideration of the question whether or not the complaint, filed in the recorder's court, complied with the requirements of the statute in the manner of charging the plaintiff with the commission of a crime. The charter of the city of Independence, creating the office, analogous to that of a police judge, and prescribing the procedure thereof, contains the following provision: "The recorder is the judicial officer of the said city, and shall hold court therein at such place as the council may provide, which shall be known as the 'recoder's court,' and he shall *** have exclusive jurisdiction of all offenses defined and made punishable by any ordinance of the city, and of all actions brought to enforce or to recover any penalty or forfeiture declared, or given by such ordinance; and he shall be governed by the justice's Code of this state in all civil and criminal proceedings in the recorder's court including all proceedings for violation of any city ordinance." Sp.Laws Or.1903, p. 707, § 18. An examination of the justice's Code of this state will show that the following are the provisions regulating the proceedings of such inferior tribunals, to wit: A criminal action in a justice's court is commenced and proceeded in to final determination, and the judgment therein enforced, in the manner provided in the Code of Criminal Procedure, except as in this title otherwise specially provided. B. & C. Comp. § 2263. In a justice's court, a criminal action is commenced by the filing of a complaint therein. Id. § 2264. The complaint is to be deemed an indictment within the meaning of if the provisions of chapter 8 of the Code of Criminal Procedure, prescribing what is sufficient to be stated in such pleading, and the form of stating it. Id. § 2265. The provisions of chapter 8 of the Code to...