City of Milwaukee v. Ruplinger

• Decision Date: 13 January 1914
• Citation: 145 N.W. 42,155 Wis. 391
• Parties: CITY OF MILWAUKEE v. RUPLINGER.
• Court: Wisconsin Supreme Court

155 Wis. 391

145 N.W. 42

CITY OF MILWAUKEE

v.RUPLINGER.

Supreme Court of Wisconsin.

Jan. 13, 1914.

Appeal from a Judgment of the Municipal Court of Milwaukee County; August C. Backus, Judge. Reversed.

Prosecution for violating a municipal ordinance regulating the business of junk dealers.

The cause was commenced in the district court by filing of a complaint and issuance of a warrant, as in a civil action for the recovery of a penalty. In due course, the accused was found not guilty by the verdict of a jury. The city of Milwaukee, still dealing with the matter as a civil action, appealed to the municipal court where, in due course, the action was dismissed because the offense charged, as thought, was a misdemeanor and so the city had no right to appeal from a judgment of acquittal.Daniel W. Hoan, City Atty., and Arthur H. Bartelt, Asst. City Atty., both of Milwaukee, for appellant.

Austin, Fehr & Gehrz, of Milwaukee, for respondent.

MARSHALL, J.

[1] The charter of the city of Milwaukee, at the time of the enactment of the ordinance under which the action was commenced, by section 3, subchapter 4, of chapter 184, Laws of 1874, as amended by chapter 74, Laws of 1891, provided that the common council of said city shall “have authority, anything in any general law of this state to the contrary notwithstanding, by ordinance, resolution, by-laws, rules or regulations” “to tax, license, control and regulate * * * all keepers or proprietors of * * * junk shops * * * and to fix and regulate the amount of the license * * * and to prescribe the time for which such license shall be granted and to provide and enforce penalties for carrying on” said business. There existed chapter 337, Laws of 1887, providing that the mayor of the city of Milwaukee may, in circumstances mentioned, grant licenses for carrying on the business of keeping junk shops and prohibited any one from carrying on such business “without being duly licensed, under penalty of fifty dollars fine for each and every day he shall exercise or carry on such business without such license,” and further providing that “every person violating any of the provisions of this act shall be punished by a fine not exceeding one hundred dollars, nor less than ten dollars, or by imprisonment in the House of Correction of Milwaukee county for a term not exceeding six months, or by both such fine and imprisonment.” The later act did not refer to the earlier one. It is not likely that the Legislature intended by the act of 1887 to take away from the city the power it then had to regulate by ordinance the business of keeping junk shops and to enforce the regulation by penalties; but, if it did, such power was restored by the act of 1891.

Pursuant to the latter act the common council of the city of Milwaukee, prior to the occurrence giving rise to the prosecution, duly ordained by chapter 27 of the City Ordinances of 1906 that “no person or persons shall * * * within the city of Milwaukee * * * keep a junk shop * * * without being first theretofore duly licensed as herein provided.”

[2] The prosecution here was for a violation of that ordinance. The court below seems to have thought that, since the the state statute applicable to Milwaukee made the keeping of a junk shop without a license a misdemeanor, the prosecution was, really, thereunder, notwithstanding it was, in form, for the violation of the city ordinance. It evidently was supposed that the ordinance was inconsistent with the state statutes making the keeping of such a shop in the city of Milwaukee a misdemeanor, and therefore it did not apply as the common council could not repeal the statute. The answer is that, as we have indicated, if the Legislature by the act of 1887 purposed taking from the common council of the city of Milwaukee the power to regulate the junk shop business by ordinance, it, later, restored that power. It further seems to have been thought below, that the act of 1887 was a state statute covering the subject of keeping junk shops and making the keeping of such in violation thereof a misdemeanor, and, therefore, the city, notwithstanding its broad powers, as before indicated, could not regulate such business by ordinance; that if the keeping of such a shop without a license was a misdemeanor under the act of 1887 it cannot be, at the same time, a quasi criminal offense under the ordinance, penalized by a fine collectible by civil action. That is ruled otherwise by State, etc., v. Newman, 96 Wis. 258, 71 N. W. 438. It was there said:

“It seems to be the clear weight of authority that an act may be a penal offense under the laws of the state and that further penalties, under proper legislative authority, may be imposed for its commission by municipal by-laws or ordinances, and the enforcement of the one would not preclude the enforcement of the other.”

That was followed in Ogden v....