State v. Keenan

Carpenter, J.

This is a criminal prosecution for the violation of an ordinance of the city of New Haven. The City Court convicted the defendant, and he appealed to the Court of Common Pleas, criminal side. In the appellate court the defendant’s counsel moved to erase the ease from the docket on the ground that the alleged offense was not a crime; and on that motion the case was reserved for the advice of this court.

The ordinance is as follows :—“No vehicle, or the animals attached thereto, shall stand waiting for employment within ten feet of any cross-walk.” Another section prescribes a penalty of not less than one nor more than ten dollars for every violation of the ordinance. The only question is whether such violation is a crime.

If the legislature itself had prohibited the act and prescribed the penalty in precisely the same terms there can be little doubt that the act would be a misdemeanor and might be prosecuted criminally. It cannot be disputed that the legislature in fact granted the power to enact this by-law, and the power has been exercised. Logically it would seem to follow that the by-law should be of the same character and have the same force within local limits as if enacted by the legislature.

The test whether a proceeding is civil or criminal, is to determine whether its purpose is to redress a private or a public wrong. Is the law made to prevent a private injury or a nuisance?

In Hinman v. Taylor, 2 Conn,, 357, which was a prosecution under the bastardy act, it was contended that because *289 the proceeding was in form criminal it must be regarded as a criminal prosecution; but the court took a different view. Swift, C. J., held that the proposition that the form of the process decided the character of the action, was repugnant to reason and precedent. “ Suppose,” he says, “ the legislature should anthorize a forthwith process on a note of hand; no one will seriously pretend that this would convert an action of assumpsit into a criminal suit. To constitute a criminal suit some punishment must be inflicted in behalf of the state.” He evidently regarded the object and nature of the suit as determining the character of the proceeding. Judge Hosmer, in the same case, is still more explicit. He says: “The criterion to ascertain a crime is not the mere form of process, but the nature of the act or omission. If it be a violation of a public law, it is a crime or misdemeanor.” We find the same doctrine clearly stated in State v. Stearns, 31 N. Hamp., 106.

Let us apply that test. A criminal form of proceeding is clearly authorized, and the act is an offense against the public and not an injury to an individual. The penalty is not in the nature of compensation to the city for an injury sustained, but is designed as a punishment for a wrong done to the community—a wrong prohibited, because it may result in harm or inconvenience to individuals, who may or may not be inhabitants of the city. Thus tested the nature of the act as well as the form of process is clearly criminal.

Two reasons are urged why a criminal prosecution cannot be maintained and that the motion to dismiss should prevail. First, that the charter expressly provides that an action may be brought for the penalty in the name of the city treasurer, and that consequently-that remedy alone must be pursued. But this argument overlooks the object of the by-law, which is to prevent a nuisance, a matter in its nature criminal. It is no uncommon thing for a statute to authorize an action to recover a penalty incurred by doing a forbidden act, even where a public prosecution can be sustained, as is the case in all qui tarn actions. Here not only a civil suit but a public prosecution is authorized in *290 the charter. But to avoid injustice it is expressly provided that “no person shall be prosecuted both civilly and criminally for the same breach of a by-law.”

In the second place, it is contended that the right of imprisonment to coerce the payment of a penalty is not expressly given; and if not expressly granted, it cannot exist. This argument seems to beg the question by assuming that the sole object of the suit is to collect a penalty for the benefit of the city of New Haven ; whereas the real purpose of the by-law, and consequently of the action, is to suppress a public nuisance. For that purpose there can be no serious objection to putting in operation the power and legal machinery of the state.

We advise that the motion to dismiss be denied.

In this opinion the other judges concurred;