Appeal from the Circuit Court, Nineteenth Judicial Circuit, of
Lake County; the Hon. EUGENE T. DALY, Judge, presiding. Judgment
MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This is an appeal from the judgment of the Circuit Court entered upon the verdict returned by the jury finding the defendant guilty of driving while under the influence of intoxicating liquor, contrary to an ordinance of the City of Highland Park, and assessing a fine against him in the sum of $200.
The defendant-appellant pleaded not guilty and demanded a jury trial. The Magistrate in charging the jury, refused the defendant's instruction to the effect that he was presumed to be innocent and that the City must prove his guilt beyond a reasonable doubt. And, over the defendant's objection, the Magistrate instructed the jury that the City must prove the violation of the ordinance in question by the clear preponderance of the evidence; and that if the jury's verdict was for the City, then it should state the amount of the fine, which, under the ordinance, could be no less than $1, nor more than $500.
The defendant filed a post-trial motion, claiming that the Magistrate erred in refusing to give the defendant's instruction relative to the presumption of innocence and requiring proof of defendant's guilt beyond a reasonable doubt. He also claimed error in the court's giving of plaintiff's instruction that the City must prove the ordinance violation by a preponderance of the evidence, and in submitting to the jury a form of verdict requiring it, in event of a finding of guilty, to assess the fine against the defendant. This motion was denied.
The defendant contends that since January 1, 1964 the effective date of the Code of Criminal Procedure (Ill. Rev Stats 1965, c 38, pars 100-1 through 125-4) all prosecutions under penal ordinances of a political subdivision of the State, which includes a municipality thereof, are under the Code of Criminal Procedure and in accordance with the rights of the defendant as set forth under the Criminal Code (Ill. Rev Stats 1965, c 38, pars 1-1 through 34-4), which became effective January 1, 1962. He further urges that under said Codes, the City is required to prove the defendant guilty beyond a reasonable doubt of an ordinance violation, and in event such burden is sustained by the City, that then, only the court may determine the penalty or sentence; and that, consequently, the court erred in instructing the jury.
(a) the Code of Criminal Procedure of 1963 does not apply to prosecutions brought for the violation of ordinances of municipalities;
(b) prosecutions brought in the name of municipalities for the purpose of imposing a fine are nevertheless tried and reviewed as civil proceedings;
(c) in a prosecution for the violation of a municipal ordinance and the imposition of a fine, the required burden of proof is a clear preponderance of the evidence, and not proof beyond a reasonable doubt; and
(d) when a municipality seeks to impose a penalty for the violation of a municipal ordinance and the case is tried before a jury, it is the function of the jury to determine the amount of the fine to be imposed within the limits prescribed by the ordinance.
The Code of Criminal Procedure specifies that its provisions shall govern all criminal proceedings in the courts, except where a different procedure is specifically provided by law. (Ill. Rev Stats 1965, c 38, par 100-2.) Under section 102-8 of the Code, "charge" means a written statement presented to a court accusing a person of the commission of an offense and includes an indictment, information and complaint (Ill. Rev Stats 1965, c 38, par 102-8); and an "offense" is a violation of any penal statute of the State, or any penal ordinance of its political subdivisions. (Ill. Rev Stats 1965, c 38, par 102-15.)
The Criminal Code provides that every person is presumed innocent until proven guilty beyond a reasonable doubt (Ill. Rev Stats 1965, c 38, par 3-1); and the Code of Criminal Procedure further provides that the jury shall return a general verdict as to each offense charged (Ill. Rev Stats 1965, c 38, par 115-4(j)); and the Criminal Code provides that the court shall determine and impose the penalty with reference to the offense charged (Ill. Rev Stats 1965, c 38, par 1-7(b)).
The foregoing Code provisions give rise to the questions of whether the enforcement of an ordinance by a municipality is a criminal proceeding; whether a municipality is a political subdivision of the State; and whether there are any other specific statutory provisions which indicate a different procedure in connection with the enforcement of municipal ordinances.
Since 1864, our courts have consistently held that a prosecution for the violation of a municipal ordinance to recover a fine or penalty from a defendant, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding, and not as a criminal prosecution. At common law, a penalty given by ordinance or statute might be recovered in an action of debt or assumpsit, in any court of general jurisdiction, but such penalty could not be recovered in a criminal proceeding. City of Decatur v. Chasteen, 19 Ill.2d 204, 216, 166 N.E.2d 29 (1960); Village of Maywood v. Houston, 10 Ill.2d 117, 119, 139 N.E.2d 233 (1956); Town of Jacksonville v. Block, 36 Ill. 507, 509, 510 (1865); Ewbanks v. Town of Ashley, 36 Ill. 177, 180 (1864). In such cases, the proceeding being civil in form, the right of appeal was conferred on appellee as well as appellant. Village of Maywood v. Houston, supra, 119; Baldwin v. City of Chicago, 68 Ill. 418, 419, 420 (1873). "By thus recognizing a ...