Price Municipal Corp. v. Jaynes ( 1948 )

The power and authority of municipalities in this state to enact ordinances is derived from the legislature. Salt LakeCity v. Sutter, 61 Utah 533, 216 P. 234. Appellant contends that authority to enact such an ordinance is granted by Sec. 15-8-50, U.C.A. 1943, which reads as follows:

"They may provide for the punishment of persons disturbing the peace and the good order of the city, or any lawful assembly, by clamor or noise, by intoxication, fighting, or using obscene or profane language, by indecent or disorderly conduct, or by lewd or lascivious behavior or otherwise; and may punish for interference with any city officer in the discharge of his duty.They may provide for the punishment of trespass and such otherpetty offenses as the board of commissioners or city council may deem proper." (Italics ours.)

Appellant argues and respondents concede that an unreasonable search and seizure is a trespass. However, respondents contend that the legislature by authorizing cities to enact ordinances for the punishment of trespasses obviously did not intend to include all trespasses, such as for example, murder or other heinous offenses, but intended that term as used in Sec. 15-8-50, to include such acts of trespass against realty of another as would be considered petty or trifling in nature. They further argue that the right to be free from unreasonable search and seizure is a grave and important privilege and that a violation of such a right cannot be considered of a petty or trifling character and Price City exceeded its authority in attempting to enact the ordinance in question.

I agree with respondents' contention that the legislature in Sec. 15-8-50, did not expressly grant to cities the right to enact ordinances dealing with all "trespasses" in the broad sense of that term but that their authority is limited to the regulation of such trespasses which can be the subject of a petty offense, that is not the same as to say, however, that this statute limited the cities' authority to enact laws against trespasses to realty only. There is nothing in the statute from which such a conclusion can be drawn. Had the legislature intended to so limit their authority it would have been a simple matter to directly so state.

In my opinion the controlling question is whether a violation of Price Municipal Corporation's Ordinance No. 1050 is a petty offense.

A petty offense is one which according to existing moral standards of the times is considered minor in nature and can be tried before a justice without a jury and usually the punishment provided for these offenses are trifling in consonance with the offense. Felix Frankfurter and Thomas Cocoran in an article entitled "Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury," 39 Harvard Law Review, 917 at page 980, have this to say as to what has been characterized as a petty offense:

"* * * Both in England and in the colonies a clear and unbroken practice — despite all uncertainties and reservations — emerges for two centuries preceding the Constitution. Many offenses were customarily tried solely by magistrates. These offenses were compendiously characterized as ``petty.' But pettiness was not a rigidly fixed conception; demarcation between resort to jury trial and its dispensation was not mechanical. In subjecting certain conduct to the summary procedure of magistrates, unguarded by the popular element, there was an exercise of moral judgment dividing behavior into serious affairs and minor misdeeds. The gravity of danger to the community from the misconduct largely guided the moral judgment; the wide repetition of the act, raising practical problems of enforcement, in part influenced the moral value which the community attached to the act. The apportioned punishment was both a consequence of the minor quality of the misconduct and an index of the community's moral judgment upon it. Broadly speaking, acts were dealt with summarily which did not offend too deeply the moral purposes of the community, which were not too close to society's danger, and were stigmatized by punishment relatively light. * * *"

See also Katz v. Eldredge, 97 N.J.L. 123, 117 A. 841, for a good discussion of this subject where in a five to six opinion the majority held that an act which provided a greater punishment for an offense then was allowed before the adoption of their constitution for offenses triable without a jury did not violate their constitutional provision that the right of trial by jury shall remain inviolate. The minority view was that the punishment meted out was determinative of whether the offense could be classed as a petty offense which before the adoption of their constitution was triable without a jury. In the instant case it is not necessary to determine whether the character of the offense or the punishment provided therefor is the test as to whether an offense is triable without a jury and therefore one which can be classed as a petty offense.

All of the cases recognize that a "petty offense" is one of such a nature that a person charged therewith may be deprived of a jury trial. As quoted above:

"Many offenses were customarily tried solely by magistrates" (that is the accused was not entitled to a jury trial.) "These offenses were compendiously characterized as ``petty.'"

Thus the words "petty offense" came to be and is now used not with the ordinary meaning that it is merely a minor offense, but that at least one of its characteristics is that the person accused thereof does not have the right of a trial by jury. Courts have taken into consideration in determining its limitations the seriousness of the nature of the offense, and the amount and quantity of punishment provided therefor. These tests have been applied not in determining what is a petty offense, all courts agree that it is one for which the accused does not have the right of a jury trial, but in determining the validity of a statute which takes away that right. Thus some courts have held that a statute which provided that a person accused of a given offense is not entitled to a trial by jury is unconstitutional because of the gravity of its nature it could not be the subject of a petty offense regardless of how small the punishment provided therefor, while others have emphasized the amount of punishment provided as largely determinative of that question. It is immaterial which of these views is taken. In all cases a petty offense is still one where the party accused thereof is not entitled to a jury trial.

It is apparent that when the legislature in Section 15-8-50, U.C.A. 1943, granted cities the right to

"* * * provide for the punishment of trespass and such other petty offenses * * *,"

it merely granted the right to enact an ordinance for the punishment of trespass only where it constituted a petty offense. The words "such other petty offenses" clearly indicate that the legislative intention was not only to limit the other offenses mentioned in that sentence to petty offenses but also to limit the authority to punish for trespass to cases where only a petty offense was committed.

Sec. 20-5-7, U.C.A. 1943, provides that:

"All criminal actions before a city or town justice arising under the city or town ordinance shall be tried and determined by such justice without the intervention of jury, except in cases where imprisonment for a longer period than thirty days is made a part of the penalty, or where the maximum fine may exceed $50. * * *"

There is no other provision of our statute where a person accused of an offense under a city ordinance may be deprived of a jury trial, so the only petty offense the punishment for which the city may provide is one which comes within the provisions of Sec. 20-5-7, quoted above. By providing a punishment greater than that which the city may provide for petty offenses under the above section of our statute the city attempted to do that which it is not authorized to do by law. It thereby attempted to provide punishment for an offense which was not a petty one because any person accused thereof could not be denied the right of trial by jury.

From what I have said herein, I do not wish it to be inferred that I believe that a city cannot under any circumstances enact an ordinance dealing with a trespass which is not a petty offense. A city may do so where the legislature expressly grants it such power and in such a case the punishment would not be limited to that of a petty offense. I am aware that Sec. 15-8-84, U.C.A. 1943, grants to cities the right to mete out punishment to enforce its ordinances by a fine of not to exceed $300.00 or by imprisonment not to exceed 6 months, or by both such fine and imprisonment. However, this section does not have the effect of enlarging or annuling the powers of a city conferred on it by express grant, and is merely an aid to express powers granted elsewhere by the legislature. See Bohn v. Salt Lake City,79 Utah 121, 8 P.2d 591, 81 A.L.R. 215, and American Fork City v.Robinson, 77 Utah 168, 292 P. 249.