City of Oshkosh v. Schwartz

Citation55 Wis. 483,13 N.W. 552
PartiesCITY OF OSHKOSH v. SCHWARTZ.
Decision Date10 October 1882
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Error to county court, Winnebago county.

The defendant was arrested and brought before a justice of the peace in the city upon complaint for exhibiting to public view, for gain, within the city a theatrical entertainment, to-wit, “The Corinne Merry-makers,” without first having obtained a license therefor, in violation of an ordinance of the city entitled “An ordinance relating to the exhibitions of shows and showmen” providing in effect that it should not be lawful for any person or persons to exhibit to public view any threatrical or musical entertainment, or any show or exhibition whatever, without first having obtained a license therefor, and also fixing the amount of the license. The defendant pleaded not guilty, and thereupon was tried and found guilty, and was adjudged to pay a fine of $50, and $5.57 costs, and in default thereof to stand committed for 50 days. Thereupon the defendant appealed to the county court, where a trial was had de novo by the court without a jury, whereupon the court found the defendant not guilty, and ordered judgment dismissing the complaint upon the merits, and for costs, and judgment was accordingly entered dismissing the complaint upon the merits, and adjudging that the defendant have and recover of the city the sum of $51.24 for his costs therein. From that judgment the city brings this writ of error.M. H. Eaton and Charles Barber, for plaintiff in error.

Hooper & Berry, for defendant in error.

CASSODAY, J.

The only question for determination is whether attorney's fees can, in a case like this, be properly adjudged against the city. The charter (section 10, c. 13, of chapter 123, Laws 1877) provides that “in city prosecutions the finding of the court or jury shall be either guilty or not guilty. If guilty, the court shall render judgment thereon against the defendant for the fine, penalty, or forfeiture contained in the ordinance, by-law, or resolution for the violation of which the person or persons shall have been adjudged guilty, and the costs of suit; but if not guilty, the costs shall be taxed against the city. Upon conviction and the non-payment of such judgment, the court may forthwith issue an execution, as in cases of tort, and shall determine and enter upon the docket the length of time the defendant shall be imprisoned, which in no case shall exceed six months,” etc. Section 4 of the same chapter provides that “all actions brought to recover any penalty or forfeiture under this act, or the ordinances, by-laws, police or health regulations made in pursuance thereof, shall be brought in the corporate name of the city.” The ordinance under which this prosecution was had provides that “every person who shall violate the provisions of this ordinance shall, upon conviction, be fined not less than $5 nor more than $100, together with costs of prosecution, and in default of payment of such fine and costs shall be imprisoned in the common jail of Winnebago county not less than five days nor more than 60 days.” Section 3775, Rev. St., authorized the justice to “tax as costs, in favor of the party recovering judgment,” not only witness and constable fees, but also attorney's fees; and it it is therein provided that “when judgment is for the defendant, the amount claimed in the plaintiff's complaint shall govern the amount of the attorney's fees to be recovered by the defendant.”

It is urged that no amount was claimed in the plaintiff's complaint, and hence that the defendant could not have recovered attorney's fees in the justice court had he been successful there. But sections 5, 6, and 7 of the chapter of the charter above referred to requires “all the prosecutions for any violation of any of the provisions of this act, or any by-laws or ordinance,” to be commenced by “summons, unless oath be made for a warrant as in other cases,” and “in all cases where the oath is made for a warrant the complaint shall be made on the oath of the complainant, and no other affidavit shall be necessary, which complaint last above named” is to be substantially in the form therein given. Here oath was made for the warrant, and hence the complaint is in the form last referred to. Had no oath been made the prosecution would necessarily have been commenced by summons, and then the complaint would necessarily have been in the form therein designated, which prays for judgment for a specified sum. The cause of action was the wrongful violation of the ordinance. The prosecution were at liberty to proceed by summons without oath, or by warrant with oath. But the mere form in which the suit is commenced cannot change the nature of the offense. Had the action been commenced by summons without oath, the difficulty suggested would not have arisen. The charging part of each form of complaint given in the charter is essentially the same, but the prayers are quite different. In case the summons is used, it demands judgment for a specific sum and costs; whereas, if it is commenced by warrant it prays that the defendant may be arrested and held to answer to said city of Oshkosh therefor,--that is to say, for the violation of the ordinance,--and hence the complaint must be construed in connection with the ordinance, the same as though the ordinance were imported into and formed a part of it. So construed, and the prayer was in effect that the defendant be arrested and held to answer the city for the violation of the ordinance by paying such fine as the justice might impose, not less than $5 nor more than $100, together with costs of prosecution, and in default of payment of such fine and costs be imprisoned in the common jail of the county not less than 5 days nor more than 60.

Such being, in effect, the complaint, there would...

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22 cases
  • Koch v. State
    • United States
    • Wisconsin Supreme Court
    • January 9, 1906
    ...hold that a conviction under a city ordinance was a conviction of a criminal offense within the meaning of this statute. Oshkosh v. Schwartz, 55 Wis. 483, 13 N. W. 552;State ex rel. Milwaukee v. Newman, 96 Wis. 258, 71 N. W. 438;Ogden v. Madison, 111 Wis. 413, 87 N. W. 568, 55 L. R. A. 506;......
  • City of Milwaukee v. Johnson
    • United States
    • Wisconsin Supreme Court
    • April 5, 1927
    ...either under the common law or by statute, the proceeding under the city ordinance was held to be a civil action. Oshkosh v. Schwartz, 55 Wis. 483, 488, 13 N. W. 552. It is difficult to understand how the nature of the action under the ordinance can be made to depend wholly on the fact that......
  • State ex rel. Cooper v. Brazee
    • United States
    • Wisconsin Supreme Court
    • May 11, 1909
    ...speaks of persons convicted of violating ordinances. The same expression is used in Cowles v. Neillsville, supra, Oshkosh v. Schwartz, 55 Wis. 490, 493, 13 N. W. 552,State v. Municipal Court, etc., 89 Wis. 358, 61 N. W. 1100, and People v. Hanrahan, 75 Mich. 611, 613, 42 N. W. 1124, 4 L. R.......
  • Glucose Refining Co. v. City of Chicago
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 23, 1905
    ... ... holding suits for breach of such an ordinance to be civil ... proceedings-- as, for instance, Graubner v ... Jacksonville, 50 Ill. 87; Oshkosh v. Schwartz ... (Wis.) 13 N.W. 552 ... Some ... question is made as to the right of the federal court to ... grant the relief asked ... ...
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