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City of Springfield v. Ushman

OPINION FILED APRIL 25, 1979.

THE CITY OF SPRINGFIELD, PLAINTIFF-APPELLANT,

v.

BARBARA USHMAN, DEFENDANT-APPELLEE. — THE CITY OF SPRINGFIELD, PLAINTIFF-APPELLANT,

v.

SALLY E. SMITH, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. JERRY S. RHODES, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

This case involves an appeal by a municipality from the judgment of a trial court imposing fines for violation of a municipal ordinance which fines were less than the minimum amount required to be imposed by the ordinance.

Following a bench trial in the circuit court of Sangamon County, defendants Sally E. Smith and Barbara Ushman were found guilty of violating an ordinance of the City of Springfield involving the sale of fireworks to persons not in possession of an authorized permit and fined $100 each. The ordinance in question, as amended, provided that a fine imposed for violation thereof should not be less than $500 nor more than $1000. In imposing the fines, the trial court noted that the fine limits set by the ordinance were in excess of the maximum fine statutorily permitted.

The City appeals, contending that (a) the fine limits of the ordinance are valid as being established pursuant to its home-rule powers, and (b) the court erred in imposing fines less than the minimum set by the ordinance.

• 1, 2 Defendants-appellees have filed no brief. In People v. Athey (1976), 43 Ill. App.3d 261, 356 N.E.2d 1332, we noted that the failure of an appellee to do so does not require a pro forma reversal and that, as stated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493, we may, if justice so requires, search the record to sustain the judgment of the trial court. Because of the unique and important issues involved here, we choose to consider the case on its merits.

Although the issue was not raised by the parties, we are required to first consider the question of whether we have jurisdiction to consider an appeal by a municipality from a judgment imposing a fine for violation of an ordinance of that municipality. The parties were directed to file supplemental briefs on this issue but only plaintiff has done so.

• 3 The supreme court has long recognized the civil nature of municipal ordinance violation prosecutions and permitted appeals by municipalities from final rulings in such cases (Village of Maywood v. Houston (1956), 10 Ill.2d 117, 139 N.E.2d 233; Village of Park Forest v. Bragg (1967), 38 Ill.2d 225, 230 N.E.2d 868). This is consistent with article VI, section 6 of the Illinois Constitution of 1970 which authorizes an appeal as a matter of right to the appellate court from final judgments of a circuit court except in cases appealable directly to the supreme court and except from judgments of acquittal after a trial on the merits in criminal cases, neither of which is the case here. Supreme Court Rule 604(a)(1) (58 Ill.2d R. 604(a)(1)) presents no bar to the instant appeal, its concern being those decisions from which "the State" may appeal in "criminal cases." The supreme court held in Bragg that a proceeding to prosecute for a municipal ordinance violation was not a criminal case within the meaning of that rule.

• 4 The authorities are not clear as to whether a court of review may hear an appeal if a reversal would place the appellee in double jeopardy (see 21 Am.Jur.2d Criminal Law § 214 (1965)). Although under Waller v. Florida (1970), 397 U.S. 387, 25 L.Ed.2d 435, 90 S.Ct. 1184, double jeopardy principles are applicable to municipal ordinance violation cases, we see no problem of double jeopardy here. As in United States v. Wilson (1975), 420 U.S. 332, 43 L.Ed.2d 232, 95 S.Ct. 1013, reversal would not subject defendants to another trial. Neither would it subject defendants to additional punishment after they had already endured the punishment prescribed by law as in Ex parte Lange (1874), 85 U.S. (18 Wall.) 872,21 L. Ed. 872. That a reversal with a remand with directions to the trial court to impose a proper fine would not place defendants in double jeopardy is further indicated by People ex rel. Ward v. Salter (1963), 28 Ill.2d 612, 192 N.E.2d 882, where the supreme court, in an original proceeding, ordered mandamus to issue to compel a trial court to (1) vacate a fine imposed in a criminal case in an amount less than the statutory minimum, and (2) impose a proper fine. Thus, if we determine that the fine imposed here was less than the minimum legally required, we can properly reverse and remand with directions to impose a proper fine, giving defendants credit for payments made on the original fine.

• 5 We conclude that we have jurisdiction to entertain the instant appeal.

The ordinance for which defendants were found to be in violation was amended on June 13, 1978, to increase to its present limits the amount of fine to be imposed for a violation. The trial court fined defendants $100 each. The offenses were shown to have occurred on July 4, 1978, and the complaint was filed on July 13, 1978. Because defendants have filed no briefs here, and in light of the novel question involved, we deem it appropriate to examine their contentions in the circuit court. There, they asserted that the underlying offense here is a petty offense and that section 5-9-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-9-1) provides that a fine for a petty offense cannot exceed $500. They also maintained that section 1-2-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 1-2-1) sets $500 as the maximum fine permissible for violation of a municipal ordinance.

Plaintiff is a home-rule unit and in support of the validity of the provisions of the ordinance providing for the fine, argues that it acted within those powers in enacting those provisions. Article VII, section 6 of the Illinois Constitution of 1970 authorizes home-rule units to exercise powers pertaining to governmental functions (section 6(a)), subject to various exceptions including the legislative power, upon a two-thirds vote, to prohibit exercise of certain powers (section 6(g)) and the legislative power to "provide specifically by law for the exclusive exercise by the state" of certain powers (section 6(h)) or to "specifically limit the concurrent exercise" of those powers with the state (section 6(i)).

• 6 The supreme court has repeatedly ruled that an ordinance enacted by a home-rule unit under the grant of power of section 6(a) supersedes a conflicting statute enacted prior to the effective date of the constitution (Stryker v. Village of Oak Park (1976), 62 Ill.2d 523, 343 N.E.2d 919; Paglini v. Police Board of City of Chicago (1975), 61 Ill.2d 233, 335 N.E.2d 480; People ex rel. Hanrahan v. Beck (1973), 54 Ill.2d 561, 301 N.E.2d 281; Kanellos v. County of Cook (1972), 53 Ill.2d 161, 290 N.E.2d 240). This rule disposes of defendants' contention that section 1-2-1 of the Illinois Municipal Code invalidates the penalty provisions of the amended ordinance as that section was last amended in 1963 (See Ill. Ann. Stat., ch. 24, par. 1-2-1 (Smith-Hurd, Supp. 1978)).

• 7 The supreme court has recognized that a home-rule unit's power under article VII, section 6(a), may be limited by positive constitutional restriction or proper legislative action (e.g., People ex rel. Hanrahan; Kanellos). As pointed out by the City, the only constitutional provisions applicable to limitations on penalties are found in article VII, sections 6(d)(2) and 6(e)(1), and in article I, section 11. Sections 6(d)(2) and 6(e)(1) prohibit a home-rule unit from defining or providing for the punishment of a felony or from punishing by imprisonment for more than 6 months and are thus inapplicable here. Section 11 of article I establishes the general requirement that all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. Those requirements are not offended by the penalty provision here involved.

The supreme court has found the power of a home-rule unit to have been limited by proper legislative action in Andruss v. City of Evanston (1977), 68 Ill.2d 215, 369 N.E.2d 1258, and Prudential Insurance Co. of America v. City of Chicago (1977), 66 Ill.2d 437, 362 N.E.2d 1021. In both cases, subsequent to the 1970 Constitution, the General Assembly enacted legislation which specifically provided that such was done pursuant to paragraphs (h) and (i) of section 6 of article VII of the 1970 Constitution and that the functions covered by the legislation were to be exercised exclusively by the State and were not to be exercised, directly or indirectly, by any unit of local government. Each case presented the question of whether a local ...


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