President v. McKernan

• Citation: 11 N.W. 798,54 Wis. 487
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 14 March 1882
• Parties: PRESIDENT, ETC., OF THE VILLAGE OF PLATTEVILLE v. MCKERNAN.

54 Wis. 487

11 N.W. 798

PRESIDENT, ETC., OF THE VILLAGE OF PLATTEVILLE

v.MCKERNAN.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Appeal from circuit court, Grant county.

Carter, Carter & Cleary, for appellants.

A. W. Bell, for respondent.

ORTON, J.

This is an action of debt to recover the penalty prescribed by an ordinance of said village, passed January 20, 1879, for selling intoxicating liquors without first having obtained a license therefor, according to the provisions of said ordinance restraining the sale of such liquors and requiring such license. The authority for passing an ordinance on this subject is found in the charter of said village in sub. 2 of section 22, c. 63, P. & L. Laws 1861, which gives to the president and trustees of said village the power “to restrain any person from vending, giving, or dealing in spirituous, intoxicating, alcoholic, malt, mixed, fermented, or vinous liquors, unless duly licensed by them.” Objection was made to the introduction of any evidence under the complaint because it did not state facts sufficient to constitute a cause of action, and such objection was sustained and the action dismissed, and this appeal is from such judgment of dismissal.

The first question to be considered is the appealabilty of this judgment. It is contended by the learned counsel of the respondent that it is not appealable because it is a quasi criminal action. With other authorities cited, we are referred to a late decision of this court in the case of the City of Boscobel v. Bugbee, 41 Wis. 59, which appears to be in point. The city appealed from the judgment of the circuit court, dismissing the action, on the ground that the plaintiff had failed to comply with the terms of a continuance of the cause. The action was brought to recover the penalty prescribed by an ordinance of the city, made “for the protection of the public peace,” and the complaint was for “fighting and threatening to fight.” It was held in that case, in the language of the present chief justice, that “the action being quasi criminal, it could not be brought to this court by appeal;” that “the statute regulating and governing appeals to this court refers to civil actions only;” and that “the decisions upon the bastardy act are strictly in point on this question of practice;” citing State v. Mushied, 12 Wis. 561, and State v. Jager, 19 Wis. 235. The charter of that city provided that on the non-payment of the fine and costs for the violation of the ordinances of that kind, the defendant should be imprisoned in the county jail until such fine and costs were paid. In that case it will be observed that the acts complained of as a violation of the city ordinance constituted an assault and battery, or an assault, both at common law and by statute, and the penalty was fixed by statute. So, in this case, the act complained of as a violation of the village ordinance was also a misdemeanor and punishable by statute; and by the ordinance, in default of the payment of the judgment for the penalty, or any part thereof, the defendant was to be imprisoned in the common jail not exceeding 30 days. These analogies are sufficient to show that there is no distinction between the two cases in any respect, affecting the appealabity of the judgment.

This appeal must, therefore, be dismissed by the authority of that case. But it is proper to say that neither that case nor this goes any further than to decide that where a city or village ordinance prohibits that which is a crime or misdemeanor, and punishable at common law or by statute, and prescribes a penalty for its violation by a fine, and, conditionally, imprisonment, the action to recover such penalty is quasi criminal, and cannot be brought to this court by appeal on behalf of the plaintiff.

Two very important...