
    Decided 19 November, 1900; rehearing denied.
    PORTLAND v. ERICKSON.
    [62 Pac. 753.]
    Jeopardy'—Violation of Ordinance as a Criminad Offense. 
    
    1. Where, an accused Is proceeded against by a complaint and warrant, and the court is authorized to inflict the punishment oí imprisonment, the proceeding is criminal in the sense that the accused can not be jeopardized twice for the same offense, whether the proceeding be by the state or a municipality.
    Right of Prosecution to Review a Verdict of AcQuiTTAD. 
    
    2. Unless the statute expressly confers it, no appeal or writ of review can be taken by the prosecution from a judgment of acquittal in any court, either state1 or municipal; and this right is not conferred by Section 583, Hill’s Ann. Laws, providing that “any party to any process or proceeding before or by an inferior court, officer, or tribunal may have the decision or determination thereof reviewed.”
    Right to Writ of Review by Prosecution.
    3. Section 1430 of Hill’s Ann. Laws, giving the state the right to appeal from a judgment sustaining a demurrer to an indictment, and from an order arresting a judgment, does not apply to criminal proceedings In any courts where the Justices’ Code prevails, as in the municipal court of the City of Portland, for in those courts Section 2101 of Hill’s Ann. Laws expressly limits the right of appeal to the defendant.
    From Multnomah: Melvin C. G-boro-e, Judge.
    
      Criminal action by the City of Portland against August Erickson. From a judgment of the circuit court on a writ of review setting aside a judgment of acquittal by the municipal court, defendant appeals.
    Reversed.
    For appellant there was a brief over the name of Pipes & Tift, with an oral argument by Mr. Martioi iAither Pipes.
    
    For respondent there was an oral argument by Mr. Ralph R. Duniway, with a brief over the names of J. M. Long, City Attorney, and R. R. Duniway.
    
    A prosecution for a violation of a municipal ordinance is not such a criminal action that the constitution of the state prevents the city from having a writ to review the wrongful discharge of the defendant by the municipal court, where the record shows that the municipal court exceeded its jurisdiction in so discharging the defendant, and the facts are undisputed and appear upon the face of the record: Wing v. Astoo'ia, 13 Or. 538 (11 Pac. 295) ; Seattle v. Peai'son, 15 Wash. 578 ; Cross y. People, 8 Mich. 113; People v. Walsh, 67 How. Prac. 482; People v. Knoxon, 40 111. 30 ; 1 Dillon, Mun. Corp. (4 ed.), §§ 411, 925-928.
    On Petition nor Rehearing.
    We respectfully submit that the court was in error in holding that the prosecution for the violation of a municipal regulation is a criminal offense within the meaning of the Constitution of Oregon. The constitution provides in Article IV, § 23, that the legislative assembly shall not pass local or special laws for the punishment of crimes and misdemeanors ; in Article XI, § 2, that municipal corporations may be created by special law ; and in Article VII, 1, that municipal courts may be created to administer the regulations of incorporated towns and cities. Municipal charters are local and special laws within the meaning of the constitution. This leads to the unavoidable conclusion that the legislature can not give power to municipal corporations through their charters to create crimes and misdemeanors, unless the legislature can authorize a city to do what it can not itself do. This court has already decided that a municipal corporation can not make the violation of a municipal ordinance a crime or misdemeanor: Portland v. Schmidt, 13 Or. pp. 17, 25, 26 (6 Pac. 221). This is the law and the rule on the subject of former jeopardy does not apply to prevent the city from taking a writ of review: 1 Bishop, Crim. Law, §§ 990-992.
    If the original opinion herein is adhered to then we urge the court to hold that the legislature can not authorize a municipal corporation to make a violation of its ordinance a criminal offense punishable by imprisonment, and to hold that the provision of the city ordinance in regard to imprisonment as a punishment is void, and the proceeding is civil. This can be done under the following authorities : State v. Wiley, 4 Or. 185 ; Bishop, Stat. Or. 534 ; Crawford v. TÁnn County, 11 Or. 482, 495 (5 Pac. 738); Papuntti v. Fitzgerald, 106 Ga. 378; Ex parte Fagg, 38 Tex. Crim. Rep. 573 (40 L. R. A. 212); 17 Am. & Eng. Ency. Law (1 ed.), 256 ; Qreenfield v. Cook, 12 111. App. 281; Keokuk v. Dressel, 47 Iowa, 597; Cooley, Const. Lim. (6 ed.), pp. 210, 211. It is impossible to logically decide that a violation of a municipal regulation punishable by imprisonment is a criminal offense within the meaning of the constitution for one purpose and not decide that it is so for all purposes.
    The case of Wong v. Astoria, 13 Or. 538 (11 Pac. 295), has been the law of this state for many years and should control here. In that case the proceeding was declared to be a civil one, although the city ordinance prescribed imprisonment as a punishment, and the offense was punishable by imprisonment under both the common law and the general law of the state : Greely v. IJammon, 12 Oolo. 94; Durango v. Reinsberg, 16 Oolo. 327; Mclnerney v. Denver, 17 Oolo. 302; Chafin v. Waukesha, 62 Wis. 463 ; Plateville v. Bell, 42'Wis. 488 ; Ex parte Hollwedell, 74 Mo. 395, 400 ; Baldwin v. Chicago, 68 111. 418; Floyd v. Eatonton, 14 Ga. 354(58 Am. Dec. 559) ; Greens-bu/rg v. Coonin, 58 Ind. 518; Monroe v. Mener, 35 La. Ann. 1193 ; Withers v. State, 36 Ala. 252, 261; Camden v. Bleclc, 65 Ala. 237, 341; State v. Topeka, 36 Kan. 76, 87 (59 Am. Rep. 529); State v. Lee, 29 Minn. 485 ; Kirk-wood v. Autenseith, 11 Mo. App. 515 ; City v. Brenan, 44 Mo. App. 346; State v. Robitshek, 60 Minn. 123 (33 L. R. A. 33) ; Greenfield v. Mook, 12 111. App. 281; Knotvles v. Wayne City, 31 111. App. 471, 475 ; 8 Am. &Eng. Ency. Law (2 ed.), p. 252 ; 15 Ency. PL & Pr. 413-415, 445; 17 Am. & Eng. Ency. Law (1 ed.), p. 260.
    We ask especial attention to the Michigan cases which hold that these proceedings are civil unless the act is also punishable under some state law, in which cases the act is considered as criminal. The Michigan courts do not regard the question of imprisonment as a punishment as a matter of prime importance : People v.. Jackson, 8 Mich. 110 ; Mixer v. Manistee County, 26 Mich. 186, 190 ; Cooper v. People, 41 Mich. 403, 404; Grand Rapids v. Roberts, 48 Mich. 198; Vicksburg v. Briggs, 85 Mich. 502, 508; Wayne v. Detroit, 17 Mich. 390, 400.
    The court is in error in deciding that if an appeal will not lie neither will a writ of review, unless expressly given by the legislature, for it has already been held in this state that if an appeal will not lie from a municipal court a writ of review will lie : Town of Lafayette v. Clark, 
      9 Or. 225, 226 ; Wong v. Astoria, 13 Or. 538 (11 Pac. 295); Barton v. LaGrande, 17 Or. 577, 578, 580 (22 Pac. Ill); Cunningham v. Berry, 17 Or. 622 (22 Pac. 115); Hill v. State, 23 Or. 446, 447 (32 Pac. 160.)
    The statutory writ of review in Oregon is similar to the common law writ of certiorap'i: 1 Hill’s Ann. Laws, § 582 ; Garnsey v. County Court, 33 Or. 201 (54 Pac. 1089.)
    Such a writ lies at common law and lies now, unless expressly denied by statute (Dillon, Mun. Corp. (3 ed.), •§§ 440, 925, 929 ; 17 Am. & Eng. Ency. of Law (1 ed.), 269 ; 4Ency. PI. & Pr. pp. 73, 87 ; 7 Ency. PI. & Pr. pp. 820, 821, and notes ; Ridgway v. Hinton, 25 W. Va. 554. The decision in the case at bar makes the municipal court a supreme court. Such decision does violence to the provisions of the Oregon Constitution, and refuses to apply in this case what has heretofore been the settled law in regard to the right of superior courts to review acts of inferior courts.
    The supreme court has erred in this case in confusing the right of appeal and the right to a writ of error, with the right to a writ of certiorari or writ of review. As pointed out by the Supreme Court of Oregon in Garnsey v. County Court, 33 Or. 201, 206 (54 Pac. 1089), the writ of review lies when no appeal or writ of error is provided. Under our present statute the writ will lie even though an appeal is granted. It will also lie when an appeal is not granted : Ridgway v. Hinton,'25 W. V. 554. See also Hill v. State, 23 Or. 446, 447 ; 7 Ency. PI. & Pr. pp. 820, 821; 4 Ency. PL & Pr. 9, for an exhaustive discussion of entire subject.
   Mr. Justice Wolverton

delivered the opinion.

This is an appeal from the judgment of the circuit court upon a writ of review to the municipal court of the City of Portland, whereby a judgment of acquittal in favor of the defendant upon a charge of violating Ordinance No. 7133 of said city was reversed and set aside, and the cause remanded, with directions to the municipal court to adjudge that he be fined or imprisoned under said ordinance. The facts were essentially stipulated in the municipal court, and upon these the defendant was adjudged not guilty. It is alleged in the petition for the writ that the judgment was so rendered because the court' was of the opinion that the ordinance under which the prosecution was instituted was void for want of power or authority in the city, under its charter, to adopt it. Whether this is so or not, can not affect the case, under the view we entertain of the proceeding. The defendant contends that, having been acquitted, he could not be again legally tried for the same offense, and that the action of the circuit court in ordering the cause to be remanded to the municipal court, with directions that he be adjudged to pay a fine, or that he be imprisoned, was in effect a retrial. This brings up the question whether the violation of the ordinance with which the defendant is charged is an offense, within the inhibition of the state constitution (Article I, § 12), which provides that “no person shall be put in jeopardy twice for the same offense.” This court held in Wong v. City of Astoria, 13 Or. 538 (11 Pac. 295), a case under a city ordinance, whereby the defendant was sentenced to pay a fine, and to be imprisoned in default of payment, that such an action was not a criminal prosecution, within the meaning of the state constitution, Article I, § .11, which accords to the accused the right of trial by jury. The holding is, however, by no means decisive of the present controversy. That decision was based upon the idea, promulgated in some other jurisdictions, that the proceeding must be regarded, as a civil action for the recovery of a fine, penalty, or forfeiture. While this may be proper-and regular, yet where, under the statute and ordinances, enforcement is sought. by resort to proceedings authorized and carried on in all respects as criminal cases are prosecuted — by complaint and warrant — and where the court is empowered to inflict upon the accused not only a fine, which may be followed by imprisonment for its nonpayment, but also imprisonment aside from any pecuniary penalty or forfeiture, such proceeding becomes so far criminal in its nature, and the violation of the ordinance such an offense, that a person acquitted thereof can not be again put in jeopardy for the same offense : Village of Northville v. Westfall, 75 Mich. 603 (42 N. W. 1068); People v. Vinton. 82 Mich. 39 (46 N. W. 31).

Ordinance No. 7133, under which the complaint is preferred, empowers the municipal court tó impose a fine upon the offender of not less than $25 nor more than $100, or to imprison him for a term of not less than ten nor more than forty days, and to cancel any license he may have to engage in business under the ordinance. Now, while the civil action may extend to an enforcement of the fine and forfeiture, yet, when the court is authorized to go beyond this, and imprison the accused, without affording an opportunity to discharge the judgment by pecuniary recompense, then there is the creation of such an offense as comes within the inhibition of the constitution. By section 62 of the city charter the municipal court is given “jurisdiction of all crimes defined by ordinances of the City of Portland, and of all actions brought to enforce or recover any forfeiture or penalty declared or given by any such ordinance ; ’•’ and by section 65 it is provided that “all proceedings before the court or judge thereof, including all proceedings for the violation of any city ordinance, are governed and regulated by the general laws of the state applicable to the justices of the peace, or justices’ courts in like or similar cases, except as in this act otherwise provided.” The procedure in the Justices’ Code is by complaint, which is deemed an indictment, and by warrant for the arrest and detention of the accused until tided : Hill’s Ann. Laws, §§ 2132-2135, inclusive. Under the charter, this becomes the procedure for the municipal court (Ex parte McGee, 33 Or. 165, 54 Pac. 1091), so that -we have here the precise conditions upon which Village of Northville v. Westfall, 75 Mich. 603 (42 N.W. 1068), and People v. Vinton, 82 Mich. 39 (46 N. W. 31), are founded ; and we are disposed to follow them, as they extend the protection of the constitution to all cases affecting the life, limb, or liberty of the person, according to its true intendment. It was “founded,” says Mr. Justice Nisbet in State v. Jones, 7 Ga. 422, “in the humanity of the law, and in a jealous watchfulness over the rights of the citizen when brought in unequal contest with the state.”

Having concluded that the violation of such an ordinance constitutes an offense within the meaning of the constitution, there exists a fatal objection, which is also urged, to the city prosecuting the writ of review to the circuit court. The Justices’ Code, which is made the procedure for the municipal court, in so far as it concerns a violation of the ordinances of the city, provides that “an appeal can only be'taken by the defendant,” (Hill’s Ann. Laws, § 2161,) thus depriving the state or the city of the right of appeal; and, if an appeal will not lie, neither will a writ of review, unless expressly given by the legislature. True, the statute providing for the writ is general in its terms, as witness the reading that ‘ ‘ any party to any process or proceeding before or by an inferior court, officer, or tribunal may have the decision or determination thereof reviewed ’’: Hill’s Ann. Laws, § 583. But this has never been construed as giving the state the right to review any proceeding in a criminal action. In United States v. Sanges, 144 U. S. 310, (12 Sup. Ct. 609,) Mr. Justice Gray asserts that “ Prom the time of Lord Piale to that of Chadwick's Case, just cited, the text-books, with hardly an exception, either assume or assert that the defendant or his representative is the only party who can have either a new trial or writ of error in a criminal case, and that a judgment in his favor is final and conclusive. * * * But,” he continues, “ whatever may have been or may be the law of England upon that question, it is settled by an overwhelming weight of American authority that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with the express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law.” The federal statute under discussion in that case was quite as general as our own allowing the writ of review. It provides that “appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court, * * * in any case that involves the construction or application of the Constitution of the United States”; and yet it was determined that the writ of error does not lie in behalf of the United States in a criminal case which involves a construction of the constitution.

There is a distinction, of course', between a writ of error and a writ of review, but the remedy afforded by the former is in the nature of that given by the latter (4 Ency. PI. & Pr. 9), and for the purposes of this case they are essentially the same. Further on in his opinion the learned justice says : “ In either case [whether judgment has been rendered upon the verdict of acquittal or upon a determination by the court of an issue of law] the defendant, having been once put upon his trial and discharged by the court, is not to be again vexed for the same cause, unless the legislature, acting within its constitutional authority, has made express provision for a review of the judgment at the instance of the government.” Our criminal statute has provided for an appeal by the state from a judgment for the defendant on a demurrer to the indictment, and from an order of the court arresting the judgment: Hill’s Ann. Laws, § 1430. But this does not extend to an appeal from a justice’s court. 'There “an appeal can only be taken by the defendant”: Hill’s Ann. Laws, § 2161. Indeed, a statute giving the right of appeal to the state from an acquittal after trial for a criminal offense, regardless of the magnitude of the crime, would be unconstitutional, as within the inhibition against a second jeopardy for the same offense : People ex rel. v. Miner, 144 Ill. 308 (19 L. R. A. 342, 33 N. E. 40). In a footnote to that case the learned author of these valuable reports says : “It may be stated as a general rule that in criminal cases errors are not subject to revision at the instance of the state.” So it was held in Village of Northville v. Westfall, 75 Mich. 603 (42 N. W. 1068), proceeding upon like principle, that the acquittal of a defendant, prosecuted by complaint and warrant, as in a criminal proceeding, before a justice of the peace, for the violation of a village ordinance, is beyond the reach of any process by review. These authorities are decisive against the city’s right to prosecute a writ of review in such cases, and, this being so, the circuit court was without jurisdiction in the case at bar, and should have quashed the writ upon the defendant’s motion interposed for the purpose. The judgment of the court below will therefore be reversed, and the cause remanded, with directions to dismiss the writ.

Beyersed.  