The majority opinion discusses "the grants and authority conferred upon Boise City by legislative enactments," in connection with the decisive question: "Did the District Court commit error in refusing to grant appellant's demand for a trial by jury?" Upon the conclusion of the discussion, it is held in the majority opinion the trial court erred in such refusal. I concur in so holding, but express no opinion on the question of the judgment being excessive for the reason that that question may not be a matter far determination on a new trial.
GIVENS, Justice (special concurrence and dissent).
MILLER, J., apparently holds that Section 42 (41)1 of the Boise City charter is void as conflicting with Section 49-1109, I.C.A.,2 the latter being the general grant *Page 240 of power to municipalities; and that the portion of Section 1-18063 of the City Ordinance eliminating a jury in the Police Court, conflicts with Section 49-340, I.C.A.,4 the latter Section being held to prevail over Section 49-121, I.C.A.,5 and violates Article III, Section 19 of the Constitution, clause 2.6
Section 49-121, I.C.A., has to do with cities of the first class, 1913, S.L. p. 312, Sec. 1, 49-101, I.C.A., and Section 49-340, I.C.A., has to do with cities of the second class, 1893 S.L. p. 97, Section 1, 49-301, I.C.A.
Since Section 49-121 I.C.A., has to do with cities of the first class and Section 49-340, I.C.A., with cities of the second class, the latter has no bearing on the former and cannot and does not supersede the former. Both are general as to those *Page 241 municipalities which come in one or the other class, and no point is made that the legislature may not thus classify municipalities. 43 C.J. 76, § 14.
Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234, held that a special statute amending the special charter of the City of Lewiston granting specific powers to the city council did not, as a special law, violate Article III, Section 19, clause 27. No more sanctity attaches to clause 2 than to clause 27 of Section 19, Article III; therefore, on a parity of reasoning, Section 42 (41) of the Charter fixing a penalty different from the general law as to unchartered municipalities, though a special act, does not violate Article III, Section 19 (2).
A chartered city is governed by its charter and ordinances, not the general laws applicable to unchartered municipalities and amendments of its charter may be only by special act. Chartered cities were created under the aegis of special acts and so continue with constitutional sanction. Thus, the interdiction of special acts by Article III, Section 19, does not apply to the amendment of special municipal charters existent prior to the adoption of the Constitution. Boise City Nat. Bank v. Boise City, 15 Idaho 792, at page 801, 100 P. 93; Kessler v. Fritchman, 21 Idaho 30, at page 42, 119 P. 692; Hoffer v. City of Lewiston, 59 Idaho 538, at page 543,85 P.2d 238; Bagley v. Gilbert, 63 Idaho 494, at page 500,122 P.2d 227.
Cities have special charters so they may have and exercise powers different from cities under the general statutes. In re Pfahler, 150 Cal. 71, 88 P. 270, at page 279, 11 L.R.A., N.S., 1092, 11 Ann.Cas. 911.
Section 1-1807 of the City Ordinances provides that appeals from the police court shall be taken in the same manner, to the district court, as are, or may be provided, by law for appeals from the justices' courts. No other charter provision or ordinance regulates appeals.
This court has held that on appeals from justices' courts, the cases will be considered de novo and as though started or commenced in the district court. State v. Stafford, 26 Idaho 381,143 P. 528; State v. Ashby, 40 Idaho 1, at page 3,230 P. 1013; State v. Dawn, 41 Idaho 199, 239 P. 279; State v. McNichols, 62 Idaho 616, at page 623, 115 P.2d 104.
If a criminal prosecution is started in the district court, of course, defendant is entitled to a jury (Sec. 19-1802, I.C.A.); therefore, he is entitled to one on appeal. Such evidently has been at least the quondam practice. State v. Quong, 8 Idaho 191, at page 193, 67 P. 491.
Therefore, I concur in a reversal of the judgment on this ground only, and for this reason, and concur in the conclusion that otherwise the judgment should have been affirmed.
I am authorized to say that BUDGE, J., and SUTPHEN, D.J., concur herein.
1 "To provide for the punishment of the violation of any of the ordinances of the city by fine not exceeding three hundred dollars, or imprisonment in the city jail, not exceeding sixty days, or both, or by a forfeiture, as penalty, not exceeding three hundred dollars, and for working, upon the streets, or public places any person sentenced to such imprisonment during the term thereof, and to provide for the punishment of any person sentenced to imprisonment who shall refuse to work when ordered." Sec. 42(41) Boise City Charter.
2 "Make all such ordinances, by-laws, rules, regulations, resolutions not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this title granted, maintaining the peace, good government and welfare of the corporation and its trade, commerce, manufacture, and to enforce all ordinances by inflicting fines or penalties for the breach thereof, not exceeding $100.00 for any one offense, recoverable with costs, and in default of payment, to provide for confinement in prison or jail, and at hard labor upon the streets or elsewhere for the benefit of the city or village." Section 49-1109, I.C.A.
3 "The police court shall be open at 10 o'clock A. M. of each day, Sundays excepted, and shall remain open for at least one hour, and shall proceed to dispose of all cases arising from the violation of any city ordinance, in like manner as is provided by law for justices' courts, whenever the same is not in conflict with the ordinances of Boise City, for cases of like character, except that in all criminal cases of which the said police judge has jurisdiction shall be heard or tried in a summary manner by the police judge without the intervention of a jury, and he shall render judgment without unnecessary delay upon the close of the trial." Section 1-1806 of the City Ordinance.
4 "Cases in the police court arising under the ordinances of the city shall be tried and determined by the police judge without the intervention of a jury, unless the defendant demand a trial by jury, and when a demand shall be so made the trial shall be by a jury of six competent men, and shall be conducted in the same manner as trials before justices of the peace for misdemeanors arising under the general laws of the state." Section 49-340, I.C.A.
5 "In addition to the powers given by law to police judges of cities of the second class, the police judges of cities of the first class shall have power to hear and determine all matters or causes arising on account of or under any ordinance of the city providing for any penalty, forfeiture, claim or obligation declared or given by any ordinance to the city, with full power to forfeit all bail bonds or cash bail, and to issue execution thereon. In the trial of all actions brought for the violation of or for any cause arising under any city ordinance, all said matters shall be tried and disposed of by the court without a jury. No change of venue shall be allowed from such police judge in any matter arising under any ordinance of the city. All proceedings before such judge, and judgments rendered by him, shall be subject to review in the district court of the proper county on appeal, in the same manner as provided for appeals from justice courts." Section 49-121, I.C.A.
6 "The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say:
* * * * * * *
"For the punishment of crimes and misdemeanors. * * *" Section 19, Artice III, cl. 2 of the Constitution. *Page 242