The record-union., 1891-12-02

Statute law and bylaws are intended
to meet different wants and exigencles,
and to reach different purposes. The
former, when general in its nature and
operation, is intended to furnish rule
for the government of the people every
where. The latter, made blythe corpora
ton under derivative authority, are local
regulations for the government of the
incorporated place. Dillon on Municipal
Corporations, Sd ed, vol. 366.)
ordinances made by municipal cor
porations, in the exercise of their legiti-
mate police authority for the preservation
OF the peace, good order, safety and health
OF the inhabitants of the corporation, and
which relate generally TO minor Acts not
embraced in the public criminal laws OF
the State, from the nature of the circum-
stances calling for their enactment, and
the mum ber of cases arising under them,
necessarily call for summary proceedings
for their effective enforcement. Jury
trials, with their attendant delays, would
in most instances defeat the object of
their enactment and paralyZe the police
power of the corporation.
1t is contended by defendants counsel
that the of1ense with which he is charged
is made misdemeanor by an amend
ment to the charter of the City Of Sacra-
mento passed April l, 1864, which amend
ment, reads as follows: Every violation
OF any lawful order, regulation or ordi-
nance of the Board of Trustees of the
city Of Sacramento is hereby declared a
misdemeanor or public otienSe, and all
prosecutions for the same shall be in the
name of the people of the State OF Cali
fornia."
This contention of counsel is answered
by the Supreme Court of this State in
PillSbury VS.. Brown, AZ Cal. Al. In
that case the plaintiff Pillsbury, while
acting as District Attorney of San Joaquin
Court, prosecuted in the Police Court Of
the city of Stockton one Wentoby for .yio-
lation of an ordinance of that city; the
defendant was convicted and fined, which
fine was paid to Brown, who was the
Police Judge. By the statutes in force at
the time (Acts lS69-70), the District At
torney was entitled to a fee of SIS for each
and every conviction for misdemeanor,
to be taxed against the offender and col
lected of him. The Police Judge refused
to pay the District Attorney his fee, and
suit was brought TO compel him to do so.
In deciding the case the Supreme Court
say:
Did the offense of which Wentoby was
convicted in this instance amount to q mis-
demeanor, upon conviction Of which the
DIstrlctAttorney was entitled to receive a
fee of Sl5? We think not. A misdemeanor
is an act or omission for which pun
ishment, other than death or imprison-
ment in the State prison, is denounced by
law-that is by the will of the supreme
power, expressed by statute. There is no
statute at least none is called to our atten-
ton, under which the misconduct of
Wentoby, of which he was convicted in
the Police Court, amounts to a misde-
meanor. = His offense was a
breach of Ordinance No. 4, passed by the
municipal government of the city OF
Stockton-nothing more"
1t is noticeable that in this case the at
tention of the court was called to provi-
sion in the charter Of the city of Stockton,
which is in the exact language of the
amendment to the charter Of the city of
Sacramento, cited by counsel for defend
ant here, but the Supreme Court de-
cided that as the offense prosecuted was
not misdemeanor or public offense I'M
der any general law of the State, the Dis
trict Attorney was not entitled to the fee
claimed.
Section 435 of the Penal Code, cited by
counsel for defendant, has no application
here This defendant is not charged with
falling to procure any license required by
any law Of this State. In fact, there is no
question Of any license, State or munich
pal, involved in this case. The defend
ant is charged with keeping his saloon
open contrary to the provisions of Ordi-
nance No. 276 of the city of Sacramento.
| There is no general law of the State de-
claring his ofiense a crime or public
o1ense or this act crime or public
ofense. 1t is an Otfense against the local
law of the city of Sacramento.
1t results from these views that the de-
fendant is not entitled to jury trial.
His demand therefor is denied.