State v. Zeigler

The opinion of the court was delivered by • Elmer, J.

Many of the charters of municipal corporations in this state authorize the enforcement of their by-laws and ordinances by proceedings of a nature more or less summary, so that the questions so well argued by the counsel in this case, have become of great general importance. The proper *267 construction of those provisions of our constitution, which require that the right of trial by jury shall remain inviolate, and that no person shall be held to answer for a criminal offence, unless on the presentment or indictment of a grand jury, deserves the most careful consideration. Speaking for myself, I entertain strong doubts whether a pecuniary penalty exceeding sixteen dollars — that being the largest sum which could be tried by a justice without a jury before the constitution of 1776 — can now be enforced otherwise than by the verdict of a jury, if demanded by the defendant; but it is not necessary to decide this question now, and no opinion is intended to be expressed in regard to it. Since the decision in the case of Johnson v. Barclay, 1 Harr. 1 , the legislature has authorized jury trials in cases arising under the vice and immorality and bastardy acts, and will probably find it expedient, if not constitutionally necessary, to allow the same privilege in the enforcement of the numerous ordinances, so minutely regulating every man’s business, in our incorpoTated cities and boroughs.

The act incorporating the town of Lambertville authorized a pecuniary penalty for the violation of a by-law or ordinance, to be recovered by an action of debt, which, of course, would be subject to the general rules applicable to such actions in other cases, in all matters not specially regulated by the charter. The second section of a supplement, approved February 19th, 1851, the exact meaning of which it is very difficult to understand, makes it lawful for the common council to pass ordinances, enacting that penalties may be enforced by information and summary proceedings, and the issuing of a warrant for the apprehension of the offender. It seems to have been supposed by the framers of this section, that the common law regulates these proceedings; and it appears that the justice, when he postponed the trial of the information, took a recognizance for the appearance of the defendant, as if it was an ordinary criminal proceeding, which he had no power to do. Such summary proceedings were unknown to the common law, and depend *268 entirely on the statutes authorizing them, which must be strictly pursued. 4 Black. Com. 280; 1 Burn Jus. 330; The People v. Phillips, 1 Park. Cr. R. 96; Morewood v. Hollister, 2 Seld. 309.

It is clear that this section, if it has any efficacy at all, can only be enforced by the aid of an ordinance regulating the proceedings in strict' conformity with the power given. This, it is insisted by the counsel for the prosecution, has been done by the ordinance passed April 7th, 1851. Upon looking at that ordinance, however, it appears to be radically bad. Instead of authorizing the warrant and conviction to be by the mayor or “ the justices of the peace of said town/7 it undertakes to legalize such summary and stringent proceedings by the mayor, “ or either of the justices of said town.” This is a plain departure from the authority conferred by the law. The whole proceeding, before a single justice, is coram non judice and void. The original charter authorized an action before “ any justice of the peace of the town,” but the language of the supplement is entirely different.

Besides this very material departure from the power conferred, the third section of this ordinance directs the conviction to be enforced by a warrant, commanding a constable to levy the forfeiture or penalty by distress and sale of the goods and chattels of the offender; and in case no such distress can be had, then the offender is, by warrant, to be committed to jail until the said forfeiture and costs be paid, provided such imprisonment shall not exceed the term of seven days. No such power as this is granted' by the charter or the supplement. It is the well established law of corporations, that their by-lays or ordinances can be enforced only in the manner prescribed by the charter. Grant Cor. 79; Kirk v. Nowill, 1 Term, R. 118; Dundalk R. Co. v. Tapster, 1 Queen’s B. 670; Bergen v. Clarkson, 1 Halst. 352; White v. Tallman, 2 Dutcher 72. The answer to this difficulty, suggested by the counsel, that the conviction is good, even if it cannot be enforced in the manner prescribed, *269 but may be, by action of debt, is not sufficient. The action of debt was prescribed by the original charter, and required no previous conviction. Such a round-about way of reaching a plain result could never have been intended by the legislature. In my opinion the whole of this ordinance must stand or fall together.

The ordinance regulating oyster cellars, beer shops, &c., for violating which this conviction was made, is defective, in prescribing a forfeiture “ not exceeding fifty dollars,” instead of such precise sum as the council thought proper, which might be less, but could not exceed fifty dollars. The action of debt, the right to maintain which is not taken away by the supplement, can only bo maintained for a sum capable of being ascertained at the time of the action brought. ISTeither the original charter or the supplement gives the right to fix what the penalty for any offence shall be, to the justice or to a jury • it is the duty of the council to determine that question. It was held, in the case of Piper v. Chappell, 14 Exoh. P. 649, -that a by-law which authorized the master and wardens of a livery company, in London, to impose a penalty, for refusing to serve as a liveryman, of the sum of five pounds, or less, at the discretion of the said master and wardens, so it be not less than forty shillings, was good ; but the penalty of five pounds, for which the action was brought, was imposed for the particular case, as the bylaw intended, and was thus rendered certain before the proceedings to enforce it were commenced.

The conviction must be quashed.

Cited in McGear et al. v. Woodruff 4 Vroom 216 . McConvill v. Mayor, &e., of Jersey Oity, 10 Vroom 42 .