Johns, Mitchel B.

English

University of Denver

Denver Law Review Volume 32 Issue 6 Article 5 June 2021 A Violation of a Municipal Ordinance - Is It Fish or Fowl? Mitchel B. Johns Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Mitchel B. Johns, A Violation of a Municipal Ordinance - Is It Fish or Fowl?, 32 Dicta 387 (1955). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. Sept.-Oct., 1955A VIOLATION OF A MUNICIPAL ORDINANCE-IS IT FISH OR FOWL?*HON. MITCHEL B. JOHNS, Judge of the Superior Court,City and County of DenverAnd it came to pass that in the Court of General Sessionsin the City and County of Denver, on the 20th day of Septemberin the Year of our Lord Nineteen Hundred and Fifty-Five, therewas called up for trial before the Honorable Pontius Pilate thecase of the City and County of Denver v. John J. Lazarus.And the Honorable Judge, clothed in the black raiments ofhis office, saith unto the defendant who stood before him:"Defendant Lazarus, thou art charged by the City of Denverwith the violation of assault, 'how answerest thee?" And the De-fendant sayeth: "I answer nil debet, Your Most Worshipful Magis-trate."To which the learned Court replied: "Thou canst not answerthus. Thou must reply 'guilty, or not guilty' as is the wont in suchcases."And Lazarus looketh with fear into the eyes of the noble judgeand saith: "How can I answer thee thus? Is it not written in theBook of Law, in the Case of City of Greeley v. Hamman, 12 Colo.94, that a prosecution for the violation of a Municipal Ordinancepunishable by fine or imprisonment is not a criminal proceeding,but a civil action in the nature of an action in debt. And has it notbeen verily said that in reply to an action in debt, one who is notso indebted answereth 'nil debet.' "And the distinguished jurist saith unto Lazarus: "So it iswritten in the Book of Law that this is a civil case, and so is itthe practice in pleadings to answer thus to an action in debt. Butthe law giveth and the law taketh away. And in the book to whichthou referrest there is not permitted such a reply to the violationof a Municipal Ordinance. Verily thou must plead to the charge,guilty or not guilty."And Lazarus replieth to the Court: "Thou art learned, andthou art the Judge." And the Judge stateth: "I am the judge."And Lazarus took unto himself two minutes for deliberation,while the attendants of the Court waited for Lazarus and marvelledat his audacity. And he finally spake unto the Judge on this wise:"This most humble defendant desireth not to affront the dignityof this esteemed Court, but inquireth of the learned Judge if thelowly defendant be permitted to file an answer as is the custom inall well established civil tribunals."Whereupon the black-robed Judge answereth with finalityand saith unto Lazarus: "Thou art permitted no right to formallyanswer , for it was thus decided by the worthy justices in Rinn v.* Address given by Judge Johns before the Law Club in Denver on Septem-ber 26, 1955.DICTASept.-Oct., 1955Boulder, and it is Written in Dietz v. City of Central, 1 Colo. 323,that the subtilties of the common law action of debt do not applyto cases of this type."And the defendant Lazarus looketh earnestly to the Judge andsaith unto him: "Likewise, is it not practiced in the law that allactions for violation of Municipal Ordinances are in the name ofthe Municipality, and actions in crimes in the name of the People?"And the Judge replieth unto Lazarus, saying: "Lazarus, thouart keen in the ways of the law-so it is practiced in the pro-cedures."And Lazarus, kneeling, imploreth the Judge: "I am thy ignor-ant servant, without counsel, and with fear in the premises; howsaith thee that for breaches of the ordinances there was broughtbefore the Judges two cases in the name of the People, to-wit:"People v. Braisted, 13 Colo. App. 532, and Davis v. The People,47 Colo. 1; thou art learned and sagacious, thou art the Judge.How sayest thee?"And the Honorable demandeth: "I am the Judge. How plead-est thou, guilty or not guilty?"And Lazarus, hearing the exhortation, trembled and askedmeekly of the Judge: "In the trial in these cases, how balanceththee the scales? Requireth thou the quantum of preponderance, orthe quantum of reasonable doubt?"And the Jurist replieth: "It has long been established thatthe rule of preponderance prevaileth."And Lazarus regardeth the Judge with much apprehensionand saith: "My liberty thou mayest deprive, and my property thoumayest take by a preponderance-how then, 0 Justice, doestthou levy an execution against the body and sell at public sale? Thepractice of slavery thou are forbidden. Lincoln did so speak, andour fathers have so declared by blood."And the Judge replieth to Lazarus, "There shall be no sellingof the body, for these are the days of enlightenment."And Lazarus inquireth of the Judge: "How then doest thoudo satisfaction-if a fine be duly imposed and I be without funds-hath the plaintiff an empty judgment as is the case in the majorityof actions civil?"And the Judge answereth: "The Chief Justice Steele in 1909hath declared in Davis v. People, in a prosecution for a violationof a Municipal Ordinance, the Defendant may be fined and com-mitted until the fine is paid."And Lazarus exclaimeth: "Oh, Most Worshipful and EsteemedMagistrate, thou hast stated aforetime that the action is civil andone in debt, and now thou wouldest impound the body. Have notour forefathers in the ages of the past forbidden imprisonment fordebt as well as the star chamber, the rack, and the screw? Thislowly and uninformed defendant has long so understood the pro-scriptions. Thou are learned and thou art wise. Explainest thouDICTASept.-Oct., 1955that in this modern day a man may be imprisoned for debt-OLearned Judge ?"And the Jurist, casting down his eyes, saith: "Yes, I am theJudge. How answereth thee, guilty or not guilty?"And Lazarus, gravely and with timidity, sayeth unto the nobleCourt: "It is spoken in the market place among the debtors thata plaintiff cannot have judgment without proof of damages. Howwilt the Court measure proof of damages for assault-if one strik-eth lightly or heavily-doest thou measure severity on the scalesof dollars and cents and in days of imprisonment? How can it beso? And if there be the swearing in of an expert on assault, whatshall be the foundation proper for the receipt of the testimony ex-pert? Thou art just. Thou will require proof of damages as inaction in debt, 0 worthy Justice. Thou art learned in the laws ofevidence. Thou art the Judge."And the Honorable Justice Pilate replieth on this wise: "Iam the Judge-how sayest thee, Lazarus, guilty or not guilty?"And Lazarus looketh from side to side and supplicateth unfothe Judge: "I beseech thee for a jury, that I may lay before myfellow men my guilt or my innocence."And the Judge in compassion spake thusly: "Woe unto thee,Lazarus, a jury thou canst not have."And Lazarus, his eyes large with disbelief, crieth out: "Isit not written in the great book of Constitutions that an accusedshall enjoy the right to a speedy and public trial by an impartialjury ?"And the Honorable spake with authority: "A speedy trial thoushall surely have, for the rule has long been provided in City ofGreeley v. Hamman, 'The public welfare demands a summary andspeedy prosecution of offenders against municipal ordinances,'but a jury trial thou shalt not have."And Lazarus pleadeth: "How can this be? The writing of theConstitution is the fundamental and paramount law of the land-the protection of the individual liberty and life of man-the shieldagainst the onslaught of tyrants and despots. The sages of pasttimes have so recognized and so upheld. Who dareth to strikedown these inalienable rights, these guarantees so long preserved?Who dareth ?"And the Judge picketh up the Book of the Law and spake onthis wise unto Lazarus, saying: "Hearken unto thee-take heedthat ye be not deceived, for much has come to be said in the nameof the Book of Constitutions, but little is understood. It was writ-ten in the year 1892 by the Justice Helm in McInerney v. City ofDenver, 17 Colo. 302, on the subject of which thou speakest, andwhich I now read to you:The proposition is urged by counsel that the follow-ing offenses against municipal ordinances be prosecutedby jury trial, viz.: The injuring or obstructing of streetsor alleys, the obstructing or polluting of sewers, the es-DICTASept.-Oct., 1955tablishing of offensive trades or manufactories, assaults,assaults and batteries, disturbance of the peace, unlawfulassemblages, riots, routs, indecent exposures, the keepingof gambling houses, of houses of prostitution, soliciting onthe street by prostitutes, carrying concealed weapons,disturbances of Sunday worship, bunco and confidencesteering, the practice of fakiring devices in fraudulentlyselling articles on the sidewalk, etc., etc.It is needless to say that a judicial recognition of theright to a trial by jury in all the local offenses above enum-erated, would seriously impair the usefulness and effi-ciency of city governments. Whatever may be the viewconcerning the gravity of the offense against a state law,the very fact that the legislature authorizes the city todeal with the same subject by ordinance indicates. that tothe legislative mind, the act also properly constitutes oneof those petty offenses regarded as local injuries. Thepublic welfare, requiring the maintenance of peace andgood order as well as of careful sanitary regulations incities and towns, renders summary proceedings in manycases a necessity. And we are not now prepared to inau-gurate the revolution that must follow the announcementof the doctrine that a jury trial is an indispensable pre-requisite. It is hardly necessary to say that such a trial isnot always essential to "due process of law," or that it isnot implied in the principle that every man judicially ad-judged against shall have "his day in court".And Lazarus listeneth intently and spake: "He speaketh muchgobbledygook, and he mentions not the Book of Constitutions."And the black-robed Judge riseth in his judicial seat and re-buked Lazarus, saying: "Talk not to me of gobbledy gook. Thouspeakest in another century. It is demanded of thee this hour.how answereth thou, guilty or not guilty."And Lazarus spake: "They whittle away at the rights of man.The Book of Constitutions saith that in cases criminal thou shaltnot be called to be a witness against thyself. Wilt thou rule, then,that if the worthy City Prosecutor calls me to the stand, by therule I must answer?"And the Judge replieth: "The illustrious justices have spokennot on this matter. I will require thee, if called, to state thy name,and permit thee to claim thy privilege."And it came to pass that with this saying the face of Lazaruslighted up with joy, and he exclaimeth further: "Thou hast a kindand kindred soul, Your Honor, but thou followest not the Rulesof Civil Procedure. The action is proclaimed civil, as thou hastsaid."Whereupon the Judge instructeth Lazarus more perfectly onthis wise: "The Court Supreme hath many times stated that viola-tion of a Municipal Ordinance although civil is also in the natureDICTASept.-Oct., 1955of a quasi-criminal proceeding. In Green v. Denver, 111 Colo. 390,the learned Justice Jackson pronounceth as follows, even thoughprosecution for the offense may be in the nature of a civil action,the imposing of a penalty under a muncipal ordinance has the samepurpose as the imposition of a penalty under the criminal law."And with impatience Lazarus remarketh: "It is civil when thewind bloweth east and criminal when the wind bloweth west; howbe it in a cyclone? And if it should come to pass that the CityProsecutor with much zeal presenteth his case and this unfor-tunate defendant standeth convicted before the Honorable Court,hath he no recourse to the echelons judicial?"And the Jurist spoke with knowledge: "Thou canst appeal tothe Court of Superiority."Whereupon Lazarus inquireth: "And if this lowly defendantconvince you most worshipful and judicial self of his innocence,canst the City Prosecutor hie him before the tribunal higher andmake him a second time answer to the process?"And the Justice Pilate knowingly replieth: "This he cannotdo, for it was so passed by the Body Legislature in the SessionLaws of '53."And the defendant commenteth wearily: "And so the lawtravelleth to the side criminal. And in the Court of Superiority,is there provided for the trial by jury, or doth the review consistof the record not recorded? How be it, 0 Magistrate? I am with-out knowledge, and slow to learn."And the Judge, perceiving the dilemma of the lowly defen-dant, replieth to him with compassion: "In the Court of higherjudicial authority there is preserved to thee the right to trial byjury. Thou wilt be granted a trial de novo, just as if thou hadstnever been tried before this tribunal."And Lazarus gravely remarketh: "They spend much of thepeople's money and give a fancy name to twice try an accused.And if thy servant desireth to climb the ladder judicial, and beingwithout monies or property to place security, how sayest the law,is he deprived the right of appeal because he is poor ?"And the Judge, by this time being already much wearied ofsuch questioning, answereth: "In the days of old such was thepractice, but it came to pass that on a certain day a poor defendantwith children eleven found himself in such plight, and threw him-self on the mercy of the Court of Superiority, and prayed that Blebe allowed his appeal without the posting of bond. And the Judge,having mercy on that much burdened and overworked defendantdid permit him to so appeal. And the good legislature looketh downacross the commons and saith: 'These things should not be,' andtherefore it verily changeth the law in the year of our Lord 1955."And Lazarus spake unto the Judge on this wise: "It is good."But being in a quandry, inquireth further: "How wilt thou say,0 Judge. If I prevail not here and take my cause to the tribunalhigher, and impanel a jury, doth the law permit the wind criminalDICTASept.-Oct., 1955to blow over the trial so that if I be guilty and confess my sins tothe jury and appeal to their passions, doth the law permit thetalismen to exercise their compassions and return a verdict of notguilty as is the wont in cases criminal ?"And the Judge answereth the defendant: "Lazarus, thou artlearned in the ways of the world, but the law worketh not thus.As it is written in Lloyd v. Canon City, 46 Colo. 195, that thecause being civil, the Court hath the power to a verdict direct ona confession given."And Lazarus respondeth: "Thou hast verily stated, 'The lawgiveth and the law taketh away.' Thou art learned and wise inthe law, distinguished and esteemed Judge. I pray thee, wilt thouexplain to thy humble servant how can this be, and yet be denomin-ated by the high justices as criminal on the quasi-extremity. Thouart learned and wise and thou art the Judge. How sayest theethus ?"And the Judge commandeth: "I am the Judge, how pleadeththee, guilty or not guilty ?"Whereupon the defendant further emploreth the noble Court:"Of personal liberty the civil law worketh not the severity as inthe criminal law. I see many of the clients of the lawyers criminalwalk free in the market place, breathing the air in and out. Ifthis poor subject be convicted, wilt thou permit him the right ofprobation ?"And the Court answereth Lazarus: "Lazarus, thou art search-ing, but it is not so provided. If thou wert convicted of a crime,probation thou mightest have, but not so in the Courts Municipal.If sentenced there, thou wilt be hied to the dungeon."And despairingly Lazarus cried out: "The wind changeth."And the Judge commandeth: "Lazarus, my patience thou hastexpended. I hereby demand of thee, guilty or not guilty?"And thereupon Lazarus spake unto the Judge: "Most worship-ful justice, I pray thee, it is provided in the Book of Statutes thatif a defendant criminal be fined for his wrong doing and he bea pauper and without means, upon the filing of an affidavit properhe may be relieved. What sayest this proceeding? Wilt thou givethe same right to a violator of the by-law ordinance-the civilaction?"And Justice Pilate, with finality spake: "0 unfortunate de-fendant, I make not the law. I interpret and administer the stat-utes. Abide by them I must, lest I be stricken down with castigationby the great justices. I adjure thee upon the penalty of contempt,thou must reply, guilty or not guilty ?"And Lazarus crieth out, "Thou requireth me to answer to amutation, an incongruity, a hybrid. It is neither fish nor fowl. Hon-est.ly Judge, I answer nil debet."DICTA

A Violation of a Municipal Ordinance - Is It Fish or Fowl?

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A Violation of a Municipal Ordinance - Is It Fish or Fowl?

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