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der an ordinance may be enforced after the expiration of the period it was intended to regulate.3

§ 556. Pleading and procedure.

360

The pleadings and procedure used in such actions are usually prescribed either by some special provision of the general law,361 or, in their absence or of charter requirements, are the result of attempts by the municipal authorities to formulate a code of court rules based upon analogous proceedings in courts of higher jurisdiction.362 They are characterized by informality,33 but the rule usually holds that the proceedings should recite all jurisdictional essentials, including allegations establishing the existence of the ordinance upon which the action or proceeding is based 365 and in some cases setting out the section or sections alleged to have been violated,366 though ordinarily a complaint

364

criminal in their character. See, also, holding the same, State v. Keenan, 57 Conn. 286, and Jaquith v. Royce, 42 Iowa, 406. See, also, 33 Am. Rep. 726, 74 Am. Dec. 682.

360 City of Kansas v. White, 69 Mo. 26; Stevens v. Dimond, 6 N. H. 330.

361 Western & A. R. Co. v. Hix, 104 Ga. 11; Metropolitan St. R. Co. v. Johnson, 90 Ga. 500; Johnson v. Finley, 54 Neb. 733.

362 Town of Tipton v. Norman, 72 Mo. 380.

363 State v. Baker, 44 La. Ann. 79, 10 So. 405; State v. Richardson, 37 La. Ann. 261; State v. Finnegan, 50 La. Ann. 549, 23 So. 621; City of New Orleans v. Rinaldi, 105 La. 183, 29 So. 484; Rowland v. City of Greencastle, 157 Ind. 591, 62 N. E.

474.

364 Stroup v. Pruden, 104 Ga. 721; Mahoney v. Dankwart, 108 Iowa, 321; Village of Elbow Lake v. Holt, 69 Minn. 349; City of St. Louis v. Dorr, 136 Mo. 370; Giardina v. City of Greenville, 70 Miss. 896, 13 So. 241; Massinger v. City of Millville,

63 N. J. Law, 123, 43 Atl. 443; City of Cape May v. Cape May Transp. Co., 64 N. J. Law, 80, 44 Atl. 948; State v. Wilson, 106 N. C. 718; Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

365 Saner v. People, 17 Colo. App. 307, 69 Pac. 76; Town of Whiting v. Doob, 152 Ind. 157; Missouri Pac. R. Co. v. Chick, 6 Kan. App. 481, 50 Pac. 605. A petition alleging June 13th, 1887, as the date of approval of an ordinance upon which certain proceedings are based is not prejudicial to the defendant only in that it was approved June 15th, 1877, the petition describing the ordinance by title and number. State v. Finnegan, 50 La. Ann. 549; City of Philipsburg v. Weinstein, 21 Mont. 146; Cate v. Martin, 69 N. H. 610, 45 Atl. 644; State v. Cruickshank, 71 Vt. 94, 42 Atl. 983; State v. Bosworth, 74 Vt. 315, 52 Atl. 423.

366 Collins v. Hall, 92 Ga. 411, 17 S. E. 622; Green v. City of Indianapolis, 25 Ind. 490; City of St. Louis v. Stoddard, 15 Mo. App. 173. A municipal ordinance must be set out

charging the violation of an ordinance is sufficient if it refers clearly and definitely to the ordinance and sets out in full its title.367 The acts involved are of a trivial or minor character and do not include a determination of civil or property rights or an invasion of personal rights guaranteed by the constitution.368 These conditions naturally result in respect to court practice in what has been termed a "deplorable state of confusion" and the cases as decided in different jurisdictions are not usually available in any other as authority.

§ 557. Appeal or review.

Since municipal peace ordinances deal only with petty offenses against the good order of a community, and do not involve the loss of civil rights, the right of appeal or review of a judgment of conviction on the weight of evidence does not usually exist.369 Judgments or rulings dealing with property or civil rights are subject to review and appeal; 370 in either case the manner and the time when the judgment may be appealed from or reviewed is

in full; it cannot be pleaded by title and date of passage. Fink v. City of Milwaukee, 17 Wis. 26; Rowan v. State, 30 Wis. 129.

367 Ex parte Davis, 115 Cal. 445. It is not necessary to plead the ordinance it is here held, the court will take judicial notice of it. Village of Fairmont v. Meyer, 83 Minn. 456, 86 N. W. 457, distinguishing from State v. Hammond, 40 Minn. 43. "Gen. St. 1894, § 1252, provides that it shall be a sufficient pleading of an ordinance of any village of this class, with 3,000 inhabitants, to refer to the chapter and section thereof and further, that when passed, such ordinance shall have the force and effect of general laws within the jurisdiction of the village. In the complaint, the ordinance was described by its title and

date of passage. Setting out the title, with date of approval, was ample and sufficient. It directed the attention of the defendant to

the ordinance he was charged with violating and nothing more was necessary. If the statute in question were mandatory, this would be true; but it is not for it does not require that the allegation be in this form. At most, it is simply permissive."

368 Wright v. Town of Victoria, 4 Tex. 375.

369 City of St. Louis v. R. J. Gunning Co., 138 Mo. 347, 39 S. W. 788; City of St. Charles v. Hackman, 133 Mo. 634; City of Water Valley v. Davis, 73 Miss. 521; Village of Bellefontaine v. Vassaux, 55 Ohio St. 323, 45 N. E. 321. But see City of New Orleans v. Chappuis, 105 La. 179, 29 So. 721, which holds that persons convicted under a municipal ordinance have the right to test its legality and constitutionality in the supreme court. City of Rome v. Lumpkin, 5 Ga. 447.

370 State v. Graves, 19 Md. 351; Bigelow v. Hillman, 37 Me. 52.

prescribed by the general statutes of the state.371 On appeal, the same rule as to informality as the procedure does not apply as to the original proceedings, and appellate courts follow their own rules of practice and exercise their own powers.372 The record or transcript on appeal or review should show all of the jurisdictional facts which, it has been held, include the commission of an offense, a hearing before a competent tribunal and a legal conviction.373 Other questions than those raised by the appeal cannot be considered by the court of review.374

$ 558. Defenses.

The validity of the ordinance under which a conviction or proceeding is had may be raised as a manner of defense and determined by the numerous principles suggested in preceding sections respecting and discussing the validity of ordinances. A few miscellaneous defenses may be properly stated here. Where the state and a municipality have concurrent power to deal with certain offenses, it is usually no defense in an action or proceeding brought by one authority that a conviction or adverse judgment has been given in a proceeding or trial based upon the same act and brought by the other authority.375 This rule has been held

371 Reiff v. Conner, 10 Ark. 241; Golden City v. Hall, 68 Mo. App. 627; Van Buskirk v. City of Newark, 26 Ohio St. 37.

372 City of Talladega v. Fitzpatrick, 133 Ala. 613, 32 So. 252; City of Mobile v. Barton, 47 Ala. 84; City of Centralia v. Nagele, 181 Ill. 151, reversing 81 Ill. App. 334; Village of Elbow Lake v. Holt, 69 Minn. 349, 72 N. W. 564; Johnson v. Finley, 54 Neb. 733, 74 N. W. 1080.

373 Stroup v. Pruden, 104 Ga. 721; City of New Orleans v. Chappuis, 105 La. 179, 29 So. 721; State v. Judge Cr. Dist. Ct., 105 La. 758. A record of appeal should contain a copy of the ordinance alleged to be invalid. Village of Elbow Lake v. Holt, 69 Minn. 349; City of Trenton v. Devorss, 70 Mo. App. 8; Salter v. City of Bayonne, 59 N. J. Law,

128, 36 Atl. 667; Massinger v. City of Millville, 63 N. J. Law, 123, 43 Atl. 443; Jersey City v. Neihaus, 66 N. J. Law, 554, 49 Atl. 444; Treasurer of Elizabeth v. Central R. Co., 66 N. J. Law, 568, 49 Atl. 682.

374 Saner v. People, 17 Colo. App. 307, 69 Pac. 76; City of New Orleans v. Rinaldi, 105 La. 183, 29 So. 484. But see Grossman v. City of Oakland, 30 Or. 478, 41 Pac. 5, 36 L. R. A. 593, where it is held that one does not waive his right to attack the validity of an ordinance on appeal.

375 City of Mobile v. Allaire, 14 Ala. 400; Fant v. People, 45 Ill. 259; City of Indianapolis v. Huegele, 115 Ind. 581; Town of Tipton v. Norman, 72 Mo. 380; Riley v. Inhabitants of Trenton, 51 N. J. Law, 498, 18 Atl. 116, 5 L. R. A. 352.

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in a number of cases not a violation of that constitutional provision prohibiting one from twice being placed in jeopardy for the same offense. 376 The fact that city authorities may show a discrimination in the enforcement of certain ordinances constitutes no defense.377 A conviction based upon the violation of one city ordinance where the charge was the violation of another is erroneous.378 A contract held invalid because made for a longer term than authorized cannot be ground for the reversal of a conviction for removing garbage without a license.379 The pro

376 Tuberson v. State, 26 Fla. 472; De Haven v. State, 2 Ind. App. 376.

377 Wagner v. City of Rock Island, 146 Ill. 139, 21 L. R. A. 519, affirming 45 Ill. App. 444; People v. Baker, 115 Mich. 199, 73 N. W. 115. "Respondent sought to show that the police officers had failed to enforce this ordinance in some cases; that one company had been permitted to work several men under one license; that, for less than the amount fixed by the ordinance, the city officials had granted licenses; and that the mayor had made a similar proposition to the company for which respondent was peddling. This testimony was properly excluded. It is certainly a novel proposition that the validity of laws and ordinances is to be affected by what police officers and city officials do or do not do in regard to their enforcement." City of Buffalo v. New York, L. E. & W. R. Co., 152 N. Y. 276, affirming 6 Misc. 630, 27 N. Y. Supp. 297.

378 City of Columbus v. Arnold, 30 Ga. 517; Lesterjelle v. City of Columbus, 30 Ga. 936; Gates v. City of Aurora, 44 Ill. 121. "The city charter of Aurora provides that in the suits brought for a violation of the city ordinances, the summons shall state the ordinance violated. An action was brought for a vio

lation of the ordinance entitled 'streets and alleys,' and on the trial this ordinance was excluded from the jury and the city allowed to proceed against the defendant on another city ordinance of a different character. Held, that this was. error. The ordinance mentioned in the summons as having been violated, is the cause of action and it cannot be shifted without consent, to another cause, even if the magistrate has jurisdiction of that other cause."

379 City of Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269. "Whether or not the contract with Herrington be invalid for the reason that it is for a longer period than one year is of no importance here. The ordinance itself does not. attempt to provide that the board of health may enter into a contract for a longer period than one year. It is true that the board attempted to do so by providing that Herrington should have the exclusive right for the period of three years, with the option of two more years, the license to be issued from year to year; but whether the contract be valid or not cannot affect the rights of the respondent. He was acting without a license and at a time when there was a duly-licensed person to do the work." River Rendering Co. v. Behr, 7 Mo. App. 345.

ceedings under municipal peace ordinances are usually of a summary and informal character but this will not warrant the arbitrary conviction and punishment of offenders upon insufficient or incompetent evidence,380 or a conviction without proof of an ordinance making the act an offense.381 The employment of an attor ney other than the one elected to conduct prosecutions is not a matter of defense.382 In the absence of good faith or fraud, the motives impelling individual members of a local legislative body in the passing of legislative acts cannot be made a matter of defense in prosecutions or proceedings based upon such acts.383 The fact that the offense is committed by an agent or employe or with the unauthorized consent of a public official does not constitute a defense.384 An irregularity in the organization of a corporation is no defense or, to state the principle in another way, a de facto public corporation possessing the power may enforce its ordinances legally passed to the same extent and in the same manner as one de jure.385 The fact that an ordinance is partly ambigous is no defense in a proceeding based upon a provision of the

380 Ex parte Ah Lit, 26 Fed. 512; Taylor v. Americus, 39 Ga. 59; O'Brien v. Louer, 158 Ind. 211, 61 N. E. 1004; State v. Finnegan, 52 La. Ann. 694; City of Hagerstown v. Startzman, 93 Md. 606, 49 Atl. 838; Com. v. Elliott, 121 Mass. 367; City of St. Charles v. Meyer, 58 Mo. 86; People v. Wilson, 62 Hun, 618, 16 N. Y. Supp. 583.

381 Arkadelphia Lumber Co. V. City of Arkadelphia, 56 Ark. 370, 19 S. W. 1053; Stevens v. City of Chicago, 48 Ill. 498; Village of Gilberts v. Rave, 49 Ill. App. 418.

382 People v. Vinton, 82 Mich. 39, 46 N. W. 31.

383 See authorities cited under § 508. People v. Cregier, 138 Ill. 401, 28 N. E. 812; Lilly v. City of Indianapolis, 149 Ind. 648; Dreyfus v. Lonergan, 73 Mo. App. 336; Consumers' Gas & Elec. Light Co. v. Congress Spring Co., 61 Hun (N. Y.) 133.

384 Dane v. City of Mobile, 36 Ala. 304; Powers v. City of Decatur, 54 Ala. 214; Fire Dep. of N. Y. v. Buf fum, 2 E. D. Smith (N. Y.) 511.

385 Town of Decorah v. Gillis, 10 Iowa, 234. In this case, plaintiff sued defendants for keeping a ball alley without a license. Defendants answer by attacking the incorporation of plaintiff town. The court said: "And a further thought is that defendants cannot raise the question here made in this collateral proceeding. It might as well be claimed that the plat of the village had not been properly acknowl edged or recorded; that there was fraud in the proceedings leading to the town organization, or in the passage of the ordinance in question. If the town exists as a corporation de facto, the regularity of its incorporation cannot be inquired into, in this collateral manner." Parker v. Zeisler, 73 Mo. App. 537.

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