Corporation of Washington v. Eaton

29 F. Cas. 345, 4 D.C. 352, 4 Cranch 352

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: November 15, 1833
• Status: Published

Opinions

CRAnch, C. J.,

delivered the opinion of the Court, as follows,

(Thruston, J., dissenting.)

Appeal from a justice of the peace who had given judgment against the corporation upon a warrant issued against the appellee for-a penalty of ten dollars for firing a pistol, idly, and for sport and amusement, within certain limits in the city of Washington, contrary to the by-law of the 30th of March, 1813, which declares, that “the person so firing or shooting, shall forfeit and pay a fine not exceeding ten dollars, nor less than five dollars, at the discretion of any justice of the peace resident within this.city; one third whereof shall be for the use of the city; pne third for the use of the constable, and the remaining third for the use of the informer,” &e.

A motion has been made by the defendant to dismiss the appeal, upon the ground that no appeal lies in such a case.

1. It is said that this is a criminal prosecution, and that no appeal lies unless it be expressly given by some statute.

But this is a suit for a penalty, given by a by-law of the corporation of Washington, enacted under the authority of its charter, which authorizes the recovery by suit before a justice of the peace, “as in all other cases of small debts.”

By the seventh section of the first charter of 1802, [2 Stat. at Large, 195,] which was continued in force by the Acts of the 24th of February, 1804, [lb. 254,] and 28th of February, 1820, [3 lb. 543,] until the 15th of May, 1820, when the present charter was granted, it is enacted, “that all fines, penalties, and forfeitures imposed by the corporation of the city of Washington, if not exceeding twenty dollars, shall be recovered before a single magistrate, as small debts are by law recoverable ; and if such fines, penalties, and forfeitures, exceed the sum of twenty dollars, the same shall be recovered by action of debt in the District Court of Columbia for the county of Washington, in the name of the corporation, and for the use of the city of Washington.”

Although the Act of 1802 is repealed by the Act of the 15th of May, 1820, [3 Stat. at Large, 583,] which constitutes the present charter, yet it is evident that the legislature intended that the former mode of recovering fines and penalties under the by-laws of the corporation, should remain. For, by the ninth section of the new charter it is enacted, that “ in all cases where suit shall be brought before a j ustice of the peace for any fine or penalty arising or incurred for a breach of any law or ordinance of the corporation, execution shall and may be issued, as in all other cases of small debts.” It is clear that the legislature considered a fine or penalty incurred for a breach of a by-law of the corporation, as a small debt, and treated it as such, so far as regards the mode of recovery. They have not considered it as a criminal prosecution, but have clothed it entirely in a civil vesture,- associated it with other small debts, and given the same course of procedure for its recovery.

The justice of the peace has the same jurisdiction of a suit for the penalty of a by-law as of a suit for any other debt. He takes it subject to the same right of appeal. The law makes no distinction between them. It is true, that the Act of Congress of the 1st of March, 1823, [3 Stat. at Large, 743,] extending the jurisdiction of justices of the peace to cases of $50 value, only speaks of debt and damages; and of debtor and creditor, and has been construed to refer only to cases of contract; but it is not that act which gives jurisdiction in the present case, although it gives the mode of procedure. The jurisdiction is given by the charter. In all cases in which the justice has jurisdiction, if the value exceed $5, the Act of 1823, gives a right of appeal; and it is not material from what source the justice derived his jurisdiction.

From 1802, (the date of the first charter,) until the present time, the penalties arising under the by-laws of the corporation, have been recovered before a justice of the peace, and appeals to this court have been constantly allowed and sustained.

2. But, it is said, that in this case the penalty was uncertain ; it might be any thing between five and ten dollars, and therefore it was not a debt; and case's were cited to show that debt would not lie for an uncertain sum. Those cases, however, go entirely upon the form of action, to wit, whether it should be an action of debt, or an action of assumpsit. But in proceedings before a justice of the peace, those technical distinctions do not exist, and the question whether the form of action should be debt or assumpsit, cannot arise. The uncertainty of the sum to be recovered, is no objection to the recovery in some form of action. Upon a suit brought for $10, the corporation may recover $5, or any intermediate sum which the justice, in his discretion, may adjudge; and an action of debt would lie for it, although the sum to be recovered should be uncertain at the commencement of the suit, and to be ascertained only by the verdict of the jury, or the discretion of the. judge. It is true, that in an action of debt, the plaintiff must demand a certain sum; but he may recover less than he demands, as in the.case of Pemberton v. Shelton, Cro. Jac. 498, cited in the argument, where an action of debt was brought for ¿633, the alleged treble value of tithes which the defendant had failed to set out according to law. The words of the statute of 2 and 3 Ed. 6, c. 13, which gave the penalty were, “.under the pain of forfeiture of treble value of the tithes so taken or carried away,” - without stating in what manner, or by what form of action it should be recovered. After verdict for the plaintiff for twenty shillings, the defendant moved in arrest of judgment, that the plaintiff had not demanded enough ; for by his own showing in his declaration, the value of the tithes not set out was ¿611 8d., and the treble value, therefore, was £33 2s., but the plaintiff had demanded only £33, without showing satisfaction of the two shillings. But it was not allowed, “for all the court held it was well enough,” and said, “ when the demand is of no sum certain, nor what he should recover in certainty, but only so much as shall be given by the jury, although he varies from the first valuation, it is not material; for he shall not recover according to his demand in the declaration, but according to the verdict; wherefore it was adjudged for the plaintiff.”

So also in the case of the United States v. Colt, 1 Peters, C. C. Rep. 153, Judge Washington says: — “ Thus stands the doctrine in relation to the action of debt on contracts; and if debt will lie on a contract where the sum demanded is uncertain, it would seem to follow that it would, lie for a penalty given by statute, which is uncertain and dependant upon the amount to be assessed by a jury, for when they have assessed it, the sum so fixed, becomes the amount of the penalty so given.”

And, in speaking of the case of Pemberton v. Shelton, he says, “ It cannot be said that this doctrine was laid down in consequence of the court considering this as a statutory action, to which it was necessary to accommodate the recovery, by changing general principles of law applicable to other cases, for it will appear, by reference to the statute, that it prescribes no remedy for enforcing the penalty; and that debt was brought,' upon the common-law principle, that where a statute gives a penalty, debt may be brought to recover it.”

Debt, therefore, may be brought for a penalty given by a statute, although it be uncertain; and an uncertain penalty, given by a statute, is a debt.

3. But it has been said that the by-law gives a discretion to the justice of the peace, and to him alone; and that where the inferior court has a discretion, error will not lie. This may be true in regard to writs of error at common law; but in appeals, which bring up the whole case, law and fact, as in proceedings under the civil law, where the cause is to be heard de novo, and the parties have a right in the appellate court, “ non allegata allegare, et non •probata probare,” the case is otherwise. There the appellate court stands in the place of the inferior court, and has ail the power which the inferior court had., Such is the case in the ecclesiastical courts, courts of chancery, and courts of admiralty. Appeals from justices of the peace, resemble appeals under the civil law, and have always been considered here, as bringing up the whole cause to be tried again de novo. The by-law, no doubt, intended that the court that tried the cause should exercise the discretion which it gave, and it could not deprive this court of its appellate jurisdiction, by giving a discretion to the inferior tribunal. It could neither give nor take away jurisdiction from the justice of the peace, or from this court, for both derive their power and jurisdiction from an authority paramount to that of the corporation.

4. It has also been suggested that, by the Constitution of the United States, Congress, and Congress alone have the right to legislate for this District; that it is a power which cannot be delegated ; and that the legislative power granted by Congress to the corporation of Washington, is a delegation of that power of exclusive legislation, which, by the Constitution, is vested in Congress alone. If this doctrine be correct, then is Congress, at once, deprived of one of its most important legislative powers; that of granting charters to corporations aggregate within the District; for it is, by common law, incident to every corporation aggregate to make by-laws for the government of its own members. 10 Co. 30, 31; Bac. Ab. Corporation, D. But those bylaws extend only to those members, and such as" voluntarily place themselves within the jurisdiction of the corporation. They do not extend to any other part of the District. They make no part of the legislation over the District. It is not, therefore, a delegation of the power of exclusive legislation.

5. But, it is said, that if Congress had a right to grant this charier, and to give the corporation the legislative power it contains, yet that power is limited to the specific objects designated in the charter, and that the discharge of fire-arms in the city, is not one of those specific objects; and therefore the by-law is not warranted by the charter, and is void.

Among the powers specifically granted to the corporation, are the “ power and authority to prevent and remove nuisances; ” “to provide for the prevention and extinguishment of fires; ” and “ to pass all laws which shall be deemed necessary and proper for carrying into execution the powers vested, by this act, in the said corporation or its officers.”

Nothing could be a greater nuisance to the inhabitants of the city, than the discharge of fire-arms, idly, and for sport or amusement in the streets, or near their dwelling-houses, if practised to an unlimited extent. To prevent that nuisance, the corporation had no other means than to prohibit such a discharge. The discharge of fire-arms near a stable, or other combustible matter, might set fire to it, and endanger the lives and property of the citizens, and its prohibition might be justified by the authority to prevent fires.

The means of carrying into execution the specific powers granted, are left to the discretion of the corporation.

This by-law, therefore, was warranted by the charter.

6. It has also been suggested that this ought to have been a qui tam action, because the by-law says, “ one third whereof” (that, is, of the penally,) “ shall be for the use of #the city ; one third for the use of the constable, and the remaining third for the use of the informer, or to the trustees of the poor, for the use and benefit of the poor of this corporation, in case the informer declines accepting the same.

It might be a sufficient answer to this objection, to say, that in a' qui tam action, the plaintiff always sues for the king, or sovereign, and himself; and not for another subject or citizen and himself; nor for a body politic, other than the king, and himself. If a penalty be given to be divided among several persons, (subjects or citizens,) one cannot maintain an action for himself and the others, unless such right be expressly given by statute. If the informer should bring a qui tam action, in this case, he would have to declare that he sued as well for the corporation of Washington and for the constable, or for the trustees of the poor, as for himself, for no part of the penalty goes to the United States. No such qui tam action has yet been maintained; certainly not in this Court.

But Hawkins, ( B. 2, c. 26, § 17,) says that an information, or action qui tam, will not lie “unless the whole or part of the penalty be expressly given to him who will sue for it; for otherwise it goes to the king, and nothing can be demanded by the party. But where the statute gives any part of the penalty to him who will sue for it by action or information, &e. I take it to be settled at this day, that any one may bring such action or information and lay his demand tam pro domino rege quam pro seipso.”

This by-law does not give any part of this penalty to any person who will sue for it. It only declares to whose use it shall be applied after it has been recovered in the usual manner; and provides that if the informer “ declines accepting” his third, it shall go to the trustees of the poor. .The expression “ declines accepting” implies an offer, which implies a previous recovery. If 'the informer were the person to sue for it, the language would have been, “ declines suing,” and not “ declines accepting.” A qui tam action, therefore, was not the proper remedy.

7. It has been contended also that this appeal should be dismissed because it has not been ordered under the corporate seal, but only under the direction of the mayor.

The doctrine, that a corporation can do nothing but under its corporate seal, has long been exploded. -

There are many acts which it may do by its agents under the authority of its by-laws.

This appeal was taken by the attorney at law of the corporation, who was duly appointed by the mayor, under the by-law of June 30th, 1824, creating the office; and which by-law was authorized by the seventh section of the charter which gives the corporation power to provide for tbe appointment of such officers as may be necessary to execute the laws of the corporation. And by the third section of the charter which authorizes and requires the mayor to nominate, and, with the consent of the board of aldermen, to appoint to all offices under the corporation, except commissioners of election. By the by-law of the 30th of June, 1824, it is made the duty of the attorney “ to defend the interests of the corporation in all suits instituted by or against the corporation.” He had a right, and it was part of his duty to take this appeal, if he believed that the interests of the corporation required it.

The appeal is therefore correctly taken, without any special order under the corporate seal.

8. It is also objected that Mr. Waters who issued the warrant and tried the cause below, had no jurisdiction because it does not appear upon the proceedings that he was one of the justices of the peace selected in the manner designated by the sixth section of the by-law of the 8th of November, 1830, to issue warrants for offences against the by-laws of the corporation. That by-law, however, is only directory to the officers concerned in the prosecution of offences against those by-laws, and cannot deprive a justice of the peace of a jurisdiction given to him by a paramount authority. But however that may be, it is not a good ground for dismissing the appeal, that the selection does not appear upon the proceedings before the justice. It is a fact which may be proved here if necessary.

9. It is also objected that it does not appear on the proceedings that the by-law had been published five days in some newspaper of the city, by authority of the corporation, according to the fifth section of the by-law of the 8th of November, 1830.

But it is not necessary that the fact should appear upon the proceedings of the justice.

As the cause is before this court upon an appeal which brings up the whole cause, to be tried de novo, that fact may now be proved here if capable of proof; or possibly, after a lapse of twenty years, and the publication of it in books and pamphlets, the publication of it in a newspaper may be presumed ; and perhaps the by-law of November 8th, 1830, was intended to apply only to by-laws subsequently enacted. At all events it is no ground for dismissing the appeal, that that fact does not appear upon the proceedings.

Upon none of the grounds stated, therefore, can this Court dismiss the appeal.

After the above opinion was delivered Mr. Eato¡i observed that the Court had omitted to notice one objection upon which he relied, namely, that he had not had ten days’ notice of the judgment in his favor before the sitting of this Court; and he contended that he was entitled to such notice, by the seventh section of the Act of the 1st of March, 1823, extending the jurisdiction of justices of the peace.

The CouRT answered, that the reason why the Court had not noticed it was that they did not exactly understand the purport of his objection. Mr. Eaton then explained his objection, as above.

But the Court said that the provision in the clause of the seventh section of the act referred to, was evidently made for the benefit of the appellant, not of the appellee; and was merely to prevent the original defendant’s appeal from being dismissed because not brought up to the term next after the rendition .of the judgment, if he had not notice of such judgment ten days at least before that term. That section does not require that the party in whose favor a judgment is rendered by the justice, should have ten days’ notice of such judgment in any case.