City of Buffalo v. Neubeck

At twelve-thirty-five a.m., August 3, 1923, the defendant was apprehended by a police officer on Bailey avenue in the city of Buffalo who charged him with reckless driving in violation of a city ordinance. The officer filled out and handed the defendant a summons and permitted him to go on his way. The summons was entirely printed except the name of the defendant, the date, and signature of the police officer, to wit:

“ To Louis Neobeck.

“Address............

“ You are hereby summoned to appear in the city court of Buffalo, Number 42 Delaware avenue, in the city of Buffalo, New York, on the 6th day of August, 1923, at 2 o’clock p.m., to answer the charge made against you for violating the provisions of Section 14, Sub-division 1, of Chapter 60 of the city ordinances and upon your failure to appear and answer, judgment will be taken against you for the penalty prescribed by law or ordinances for such violation.

“ Dated, Buffalo, N. Y., August 2nd, 1923.

“ Attest: Bebxabd J. Mubphy, police officer.

“ [Seal. City Court Buffalo.] GEORGE W. WOLTZ,

“ Speed 32 M. P. H. Chief Judge of city court.”

On the day appointed in the summons the defendant’s counsel appeared specially in the city court and moved for a dismissal of the proceedings. The motion was denied. The counsel then appeared generally, a trial was had and defendant was found guilty of violating chapter 60, section 14, subdivision 1, of the city ordinances and fined fifty dollars. There was no alternative directing imprisonment for failure to pay the fine.

The ordinance in question prohibits reckless driving on the streets and regulates the speed at which vehicles may be operated in certain districts. Subdivision 4 of section 14 provides

The question presented on this appeal is largely one of procedure. The language of that part of the ordinance just quoted is somewhat obscure and ambiguous. It is difficult to determine whether the intention of the municipal legislative body was to declare the violation of the ordinance a crime, or to impose a penalty collectible in a civil action, or both. Two entirely distinct punishments might legally be provided. (People v. Waterbury, 44 Hun, 493 .)

The language used is “ forfeit and pay a fine or penalty.” The terms “ forfeit ” and “ pay ” are not identical in meaning, nor are the terms “ fine ” and “ penalty,” but are often confused in loose statements. “ Penalty ” is a generic term which includes fines as well as all other kinds of punishments. (25 C. J. 1148.) Strictly speaking, “penalty” denotes punishment whether corporal or pecuniary, imposed and enforced by the state for a crime against its laws. (Huntington v. Attrill, 146 U. S. 657 , 667.) As generally understood in this state, a fine is a sum of money exacted of a person guilty of a crime, the amount of which may be fixed by law or left in the discretion of the court, while a penalty is a sum of money for which the law exacts payment by way of punishment for doing some act which is prohibited, or omitting to do some act which is required to be done. (Village of Lancaster v. Richardson, 4 Lans. 136 .) A fine is imposed in a criminal action or proceeding, but a penalty or forfeiture ordinarily is recoverable in a civil action. (Civ. Prac. Act, art. 71.)

I think we may regard the offense as a crime, to wit, a misdemeanor (Penal Law, § 2; City of Buffalo v. Preston, 81 App. Div. 480 ) ; and the proceeding as a criminal action. (Civ. Prac. Act, § 4.) The police officer was authorized to arrest the defendant without a warrant, the crime having been committed in his presence. (Code Crim. Proc. §§ 177, 180.) Otherwise it would be necessary to file a sworn information and obtain a warrant issued by a magistrate. (Code Crim. Proc. §§ 145, 148 — 150, 167, 168.) Having arrested defendant his duty ordinarily would be to take the defendant before a magistrate without unnecessary delay. (Code Crim. Proc. § 165; Davis v. Carroll, 172 App. Div. 729 .) That does not mean immediately but at the hour when the magistrate would ordinarily be at his office or court. In the meantime the defendant was entitled to give bail (Code Crim. Proc. § 165) which might be taken by certain police officers, providing for his appearance next morning. (Id. .§ 554, sub. 3.) If he did not furnish bail, the defendant might be locked up until the opening of court.

A “ summons ” as a criminal process is comparatively new._

The statute regulating a summons in the city court of Buffalo is new. (Laws of 1923, chap. 198, adding to Buffalo City Court Act [Laws of 1909, chap. 570], § 107 et seq.) The purpose of the summons therein authorized differs somewhat from the one prescribed by the general statute. (Code Crim. Proc. § 150.) I think the city judge presiding on the trial correctly stated the purpose of the summons given defendant. It was a privilege extended to him permitting him to go without bail or confinement with notice when he might appear in court to plead or defend. It is to be used where there is little risk attending setting free a person arrested. But the general method of acquiring jurisdiction and the requirements of due process of law have not been abandoned or changed by virtue of this statute.

In a civil action the summons with the printed signature of the chief judge, countersigned by the police officer as the law required, might be sufficient to constitute due process of law. (Mayer, etc., v. Eisler, 10 Daly, 396 ;) By this mode of service prescribed by the legislature the defendant would be reasonably apprised of the action against him and have an op

But in a criminal action leading to possible fine or imprisonment, a stricter regard for the defendant’s rights relative to due process must be observed. If the defendant had been taken to the police station, good practice required the officer to file a sworn information, containing jurisdictional facts and charging a specific offense, when defendant was produced in court. (People ex rel. Farley v. Crane, 94 App. Div. 397 ; People ex rel. Perscli v. Flynn, 64 Misc. Rep. 278 .) After delivery to him of the summons, the defendant might have been guilty of contempt under the- statute in failing to appear. (See Code Crim. Proc., § 150.) But after such failure to appear, if it was proposed to punish defendant for the crime, the proper practice was to file an information and obtain a warrant. (Code Crim. Proc., §§ 148-153.) Criminal process leading to a trial must be issued by a court or magistrate on sworn information, not by an executive, such as a policeman, on his own motion.

The language of the summons is that “ judgment will be taken against you for the penalty prescribed by law or ordinances for such violation.” It does not seem to contemplate conviction on -default. If the contention on the part of the corporation counsel is correct, a person summoned might under certain circumstances, be fined $250 and imprisoned for a period of thirty days without ever being informed that he was charged with a crime.

I do not regard the summons issued in this manner as constituting due process of law in a criminal action in conformity with the provisions of section 1 of the Fourteenth Amendment

The principles heretofore stated represent the views I entertain of correct procedure under this recent statute. They do not avail defendant here. When objections to the procedure were overruled, defendant appeared generally by counsel and participated in the trial. The corporation counsel suggested that any irregularity could be cured by discharging defendant and issuing a new summons by the court. Defendant did not ask it. There was no dispute about the facts, no defense on the merits and no fault found with the disposition of the case by the court. By appearing and participating in the trial voluntarily, the defendant acquiesced in the procedure adopted, and waived the defects to which he had theretofore objected. (People v. Cook, 45 Hun, 34 ; Matter of Blum, 9 Misc. Rep. 571 ; 16 C. J. 296.)

Defendant’s rights have not been prejudiced by the original irregularity of procedure. The judgment of conviction should be affirmed.

All concur.

Judgment of conviction affirmed.