Pearson v. Wimbish , 124 Ga. 701 ( 1906 )

EvaNS, J.

(After making the foregoing statement of facts.)

1. In most, and perhaps in all, of the constitutions of the different States there is contained the phrase, “the right of trial by jury shall remain inviolate,” or words of similar import. With striking unanimity this and equivalent expressions have been construed to mean that the right of trial by jury as it existed in the colonies prior to the Revolution should be preserved. The privilege was not enlarged, nor was the right' extended to instances where summary trial without a jury was authorized and practiced. This construction has been given to the guaranty of jury trial as contained in the first and all subsequent constitutions of this State. Flint River Steamboat Co. v. Foster, 5 Ga. 195 (7). -Clearly, then, that clause of the constitution: “The right of trial by jury, except where it is otherwise provided in this constitution, shall remain inviolate, but the General Assembly may prescribe any number, not less than five, to constitute a trial or traverse jury in courts other than the superior and city courts” (Civil Code, §5876), is only preservative of jury trial as it existed when Georgia became an independent State and a part of the United States, except as modified in the presént constitution. As was said by Jackson, C. J., in Hill v. Dalton, 72 Ga. 319, “such or equivalent provisions in the constitution of the United States and all the constitutions of this State have never been held to apply to police of cities and towns and arrests and trial, with fine and imprisonment therein, under ordinances thereof.” “In England, violations of municipal by-laws, where the penalty is a fine or by authority of parliament a fine and imprisonment, have always been prosecuted in a summary manner, although magna charta. secures the right of trial by jury.” 1 Dill. Mun. Corp. §433. Municipal offenses usually are confined to breaches of by-laws and ordinances which in their nature are mala prohibita, and which by legislative sanction have been enacted by the municipality for its health, peace, and tranquility. The offenses are petty in their nature, and in this State have always been prosecuted without a jurjr. While it may be doubted that the legislature may delegate to a municipality the right to declare certain acts offenses against the corporation, and offenders thereof constitutionally subject to summary trial, it is very generally held that the transgression of municipal regulations enacted under the police power for the purpose of preserving the health, peace, and good order, and otherwise promoting the general welfare within cities and towns, may be prosecuted without a jury. McInnery v. Denver, 17 Colo. 302; Byers v. Com., 42 Pa. St. 89; In re Kinsel (Kan.), 67 Pac. 634; Callan v. Wilson, 127 U. S. 540; Mayor of Monroe v. Meuer, 35 La. Ann. 1192; Natal v. Louisiana, 139 U. S. 621; State v. Conlin, 27 Vt. 318; Goddard v. State, 12 Conn. 448; Williams v. Augusta, 4 Ga. 509; Floyd v. Fatonton, 14 Ga. 354; Hill v. Dalton, 72 Ga. 319. At common law, such disorderly offenses as common swdaring; drunkenness, and a vast variety of others, formerly punished by a jury in the eourt-leet, were summarily tried by a justice of the peace, without a jury. 4 Bl. Com. *281. Offenses of this kind, as well as all others which were summarily triable without a jury in this State in colonial times, are cognizable in a police court, which, under our system of jurisprudence, is the forum in which such petty offenses may be tried.

But it is urged that while one summarily- tried, and convicted of a petty offense might be punished by fine or imprisonment, either or both, he could not be punished by imprisonment and involuntary servitude. The reply to this argument is obvious: if the offense was of such a character as to be summarily tried without a jury at the time of the adoption of the constitution, the legislature might authorize any suitable penalty not antagonistic to the organic law. Whether the penalty by involuntary labor on the public works in the chain-gang of Bibb county is violative of any provision of the United States or State constitution will be discussed in a later part of this opinion.

Another clause of the constitution is invoked as providing a constitutional guaranty of trial by jury even -for petty offenders. “Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel; shall be fur-nisliecl, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded; shall have compulsory process to obtain the testimony of his own witnesses; shall be confronted with the witnesses testifying against him, and shall have a public and speedy trial by an impartial jury.” Civil Code, §5702. It is iirst to be determined whether the violation of a municipal ordinance is an “ offense against the laws of this State.” All the authorities concur that it is within the constitutional power of the legislature to confer upon a municipality authority to make reasonable by-laws, rules, and ordinances, necessary for the security, welfare, and convenience of the city, for preserving peace, order, and good government within the same, not repugnant to the constitution and laws of the land. Vason v. Augusta, 38 Ga. 542. There is a clear distinction between offenses against the “laws of the State,” directly enacted by the legislature, and offenses against the ordinances of a city, respecting the method of prosecuting and punishing offenders against the same. Hood v. Von Glahn, 88 Ga. 414. This particular clause first appeared in the constitution of 1861, and again in the constitution of 1868. The framers of the constitution most probably had this distinction in mind, which was made in Williams v. Augusta, supra (decided in 1848), when this clause of the constitution was drafted. If a jury trial had been intended for all persons accused of crime, or for all offenders of the penal laws, whether of a general character affecting the whole State and directly enacted by the legislature, or municipal ordinances confined to offenses against the health, peace, and good order' of a city, the restrictive words, “offense against the laws of this State,” would hardly have been employed. These words should be given their ordinary signification; and when thus interpreted, the safeguards thereby guaranteed apply to persons charged with a violation of one of the criminal statutes designed to protect the public at large, and not to offenders against the ordinances of a town or city. To extend the language of the constitution to embrace offenses against a municipality, which were, never triable by a jury, would be to attribute to the framers of that instrument an intent and purpose'really never entertained by them. Neither of the clauses of the constitution above quoted extends the right of trial by jury to a person accused of a violation of a municipal ordinance, and such offenders may be summarily tried in a police court without a jury.

2. It does not necessarily follow, because in the prosecution for the violation of an ordinance in a police court the offender is not entitled to a trial by juiy, that the offense committed is not a “crime” in thq sense in which that word is used in the constitution, art. 1, sec. 1, par. 17, forbidding “slavery or involuntary servitude, save as a punishment for crime after legal conviction thereof.” This constitutional prohibition was directed against any attempt to re-establish slavey, which had but recently been abolished, or any system of servitude resembling the same. Mayor of Monroe v. Meuer, 35 La. Ann. 1192. The word “crime” was used in its generic sense, and comprehended all penal offenses — -offenses against the ordinances of a municipality as well as offenses against the penal •laws of the State. In many jurisdictions a summary proceeding to enforce the penalty for the infraction of an ordinance has been characterized as a “quasi criminal” action. In the early cases of Williams v. Augusta and Floyd v. Batonton, supra, language to this effect was used arguendo. But, as was pointed out by Fish, J., in Barnett v. Atlanta, 109 Ga. 169, the question presented for determination in those cases was the meaning of the term “criminal cases,” as used in that clause of the constitution of 1798 which gave to the superior courts exclusive jurisdiction in all criminal cases, except as therein provided; and it was held that reference was had to violations of the public laws of the State, and not to infractions of municipal ordinances. A valid municipal ordinance is a law of local application; an offense against the city results from its violation. McRea v. Americus, 59 Ga. 170. It is penal in its nature; otherwise an offender could not-be arrested and taken in custody fm its violation. Infractions of municipal ordinances are always termed petty offenses. An offense against the law is a “crime,” in the broad meaning of that word. It is none the less an offense because the offender may constitutionally be tried in a police court without a jury. The clause of the constitution which is preservative of trial by jury is applicable both to civil and criminal cases. It does not include petty offenses of the character we have discussed; neither does it embrace equity causes, which are always classified as civil actions. Equity causes were not tried by a jury when the constitution was adopted, and for this reason it has been held that this clause did not render such cases triable by a jury, as other civil actions. That the right to a jury is denied a suitor in equity affords no sufficient reason why such causes may not be denominated as civil. Furthermore it would seem an inevitable conclusion that if imprisonment may in the first instance follow conviction, the proceeding is to be regarded as criminal. This court has in several adjudications'treated a trial in a municipal police court as a criminal proceeding. Thus, it was held that the decision of the superior court on certiorari, reversing the judgment of a municipal court convicting one of the violation of a municipal ordinance, is not subject to review by the Supreme Court, because the proceeding was criminal and the city stood in the place of the State. Macon v. Wood, 109 Ga. 149; Hawkinsville v. Ethridge, 96 Ga. 326. So, also, it was held that a prosecution for a violation of a municipal ordinance is a criminal case within the meaning of the statute requiring that in all criminal cases the bill of exceptions shall be tendered and signed within twenty days from the rendition of the decision excepted to. Barnett v. Atlanta, supra. See also Paulk v. Sycamore, 104 Ga. 24. The definition of the word "crime” in the Penal Code does not militate with the construction we are giving to that word as used in this clause of the constitution. The Penal Code, §31, declares that a “crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence;” and that (§2) every crime, other than a felony, as therein defined, is a misdemeanor. This definition appertains to the subject-matter of the Penal Code, wherein only offenses against the public laws of the State are considered. Municipal offenses are not treated as violations of public laws, but as infractions of the local laws of the municipality, which have no place in the Penal Code of the State. If, therefore, as we conclude, the violation of a valid municipal ordinance is a “crime” within the purview of this constitutional provision, notwithstanding it may be summarily prosecuted in a police court without a jury, then a sentence to involuntary servitude as a result of legal conviction is not violative of our organic law.

3. The constitution of Georgia (art. 1, sec. 1, par. 3) declares that “No person shall be deprived of life, liberty, or property, except by due process of law.” Civil Code, §5700. Counsel contend that the accused was deprived of the protection afforded by this clause of the constitution, inasmuch as he was not furnished with a written accusation setting forth the offense with which he was charged, nor tried by a jury of his peers. We have already endeavored to show that the trial of petty offenses in the recorder’s court without a jury is the substantial equivalent of a trial at common law before a justice of such offenses. In those triáis before a justice of the peace the, offender was not entitled either to a jury or to a written statement of the charge preferred against him. All that was required after his appearance in person was secured was that he should be informed of the charge and should be given an opportunity to defend, that the witnesses be sworn in his presence, and that a record should be made of his conviction. 4 Bl. Com, *283. The common-law courts held that it was necessary to summon the party accused before he was condemned. Blaekstone says: “After this summons, the magistrate, in summary proceedings, may go on to examine one or more witnesses, as the statute may require, upon oath; and then make his conviction of the offender, in writing : upon which he usually issues his warrant, either to apprehend the offender, in case corporal punishment is to be inflicted upon him; or else to levy the penalty incurred, by distress and sale of his goods. This is, in general, the method of summary proceedings before a justice.” In the case of King v. Venables, 2 Ld. Raym. 1405, 1 Strange, 631, it appeared that an order was passed by two justices of the peace, suppressing an ale.house, and that subsequently they passed another order, in which the fact was recited that the defendant had continued in violation of the first order h> sell ale, whereby he was committed to jaij. No summons appeared to have been issued, prior to this last order, calling upon the defendant to show cause why sentence should not be pronounced upon him for his disobedience of the first, order; and the case was tried in his absence. On certiorari it was held that in all summary proceedings, of which nature were these orders, a summons was necessary, in order that the offender might be afforded an opportunity to appear and make his defense. But as a justice is punishable if he enters sentence without first summoning the offender to appear before him, the presumption was that summons had been issued, that the justices had jurisdiction and had proceeded regularly. The orders were accordingly affirmed. Afterwards, however, it being •made to appear to the court by affidavits that the justices had, in ■point of fact, proceeded in making the last order without summoning Venables, the court granted leave .to file an information against them.

In the present case, the question of the validity of the arrest of the accused is not involved; the contention is that the trial was a nullity, not that his arrest was illegal. When he was brought before the recorder’s court and informed of the charge against him, he was asked if he was ready for trial, and responded in the affirmative; he was afforded an opportunity t'o make his defense, and the witnesses appearing against him were sworn and testified in his presence, substantiating the charge of which he was accused. The procedure followed was substantially the same as that pursued at common law before justices of the peace in the summary trial of petty offenders. Hence, we can not say that the accused was not accorded a trial in accordance with due process of law, because of the failure to prefer a written accusation specifically defining the offense with which he was charged.

In the case of Natal v. Louisiana, 139 U. S. 621, the Supreme Court of the United States held that an ordinance passed under legislative authority by the City of New Orleans, prohibiting the keeping of any private market within six squares of any public market of the city, under the penalty of being sentenced, upon summary conviction before a magistrate without a jury, “to pay a fine of twenty-five dollars and to be imprisoned for not more than thirty days if the fine is not paid, does not violate the fourteenth amendment of the constitution of the United States.” In delivering the opinion of the court, Mr. Justice Gray remarked (p. 623) :-“The case is too plain for discussion.” The test which we have applied in determining whether the procedure in the recorder’s court of the City of Macon is in accord with due process of law, within the meaning of our State constitution, and the conclusion announced by us, must be considered as sufficiently, meeting the contention that such procedure does not conform to due process of law, as understood when the fourteenth amendment to the Federal constitution was adopted. So far as summary conviction for a petty offense is concerned, that amendment does not guarantee either a jury trial or the formality of furnishing an offender with a written accusation or statement in writing of the charge brought against him.

4. It is further contended that the penalty imposed of labor ip Bibb county chain-gang was a denial of due process of law, because of the nature of the penalty- inflicted. For a' person lawfully to be made to suffer punishment as a lawbreaker, there must be not only process of law but due process. Process which may be sufficient to authorize punishment for petty offenses by fine, imprisonment for a reasonable time in the city barracks (or even -to work upon the public works of a city, if there be in the charter any authority to impose such a sentence as confinement at labor under municipal control), will not suffice for sending a person to a county chain-gang for several months. When the punishment imposed is the same, or of the same nature, as that inflicted upon offenders against the laws of the State, and to be suffered in company with them, due process requires a trial to some extent analogous to the trial of persons accused of misdemeanors against the State. To call the offense “petty” for the purpose of trial, but as serious as a violation of a State law for the purpose of punishment, is inconsistent. If the punishment is of the same character as that imposed for a State offense, the infraction of the municipal ordinance, can not be called •a “petty” offense in comparison with one against the State. A sentence of a city recorder, without a right to a trial by a jury and with no more formal procedure than an entry on a docket, which subjects the prisoner to work in a county chain-gang for three months, along with persons duly convicted of the violation of State laws, is not due process. It is declared in the Penal Code, §1036, that all felonies, save those therein enumerated, “shall be punished by imprisonment and labor in the penitentiary for the terms set forth in the several sections in this code prescribing the punishment of such offenses; but on the recommendation of the jury trying the case, when such recommendation is approved by the judge presiding on the trial, said crimes shall be punished as misdemeanors. If the judge trying the case sees proper, he may, in his punishment, reduce such felonies to misdemeanors.” Even if those regularly convicted of felonies, but who are left in the custody of the county authorities, be kept separately, nevertheless those falling within the provisions of the Penal Code above referred to are detained in the county chain-gang. If a person who is convicted of some petty municipal offense can, after trial before the recorder, be sent to the county chain-gang, he would not only be sentenced to a punishment similar in its nature and character to that imposed for misdemeanors against the State, but he would be placed in direct association with, and be confined along with, felons whose punishments have been reduced under recommendation. It can not be that such a sentence can be imposed in Georgia by one man alone, trying a criminal case. If the sentence can be for three months in the county chain-gang, it may be for six or twelve months, if the legislature should permit it. In fact, where would be the limit of legislative power to prescribe the extent of'punishment to be meted out on the sentence of a recorder ? It is not a question of the person who may be subjected to such a punishment; it is a question of whether our organic law has entrusted such arbitrary power of punishment to be imposed, even upon the humblest citizen, by a municipal recorder sitting alone. The entrusting of such power of punishment for so-called petty offenses to a single man is not consonant with the spirit of our institutions or with our constitution, which declares that no person shall be deprived of life, liberty, or property without due process of law. Process which tries a man without formality for a “petty” offense, and punishes him in the same manner as, and along with, .criminals violating the laws of the State, with no right to a jury trial, no record save the entries upon a recorder’s docket, and upon his judgment alone, is not due process. We do not hold that the recorder’s court of the City of Macon is illegal, or that the recorder can not proceed to try offenders against the municipal ordinances and pass such sentences as the law authorizes; but what we hold is that a sentence which requires • the offender to be confined at labor- in the county chain-gang along with violators of the State laws does not furnish constitutional authority for such confinement, and that the provision of the charter of the City of Macon which authorizes the confinement of offenders against municipal ordinances in the county chain-gang for not more than six months is unconstitutional.

The fact, however, that the accused has been illegally sentenced will not result in his absolute discharge from custody, where a legal sentence can be imposed. Direction is given that the applicant be not confined in the county chain-gang, but be taken therefrom and •carried before the recorder to be sentenced in accordance with law. Littlejohn v. Stells, 133 Ga. 437, 431 and cit.; Coleman v. Nelms, 119 Ga. 307.

Judgment reversed, with direction.

All the Justices concur.