City of Milwaukee v. Johnson

Decision Date05 April 1927
Citation213 N.W. 335,192 Wis. 585
PartiesCITY OF MILWAUKEE v. JOHNSON.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Municipal Court of Milwaukee County; George A. Shaughnessy, Judge.

Merrill L. Johnson was convicted in the district court of violating an ordinance prohibiting the keeping, owning, or operating of any gambling device. From a judgment of the Municipal Court setting the conviction aside and discharging defendant, the city appeals. Reversed and remanded, with directions to affirm judgment of the district court.--[By Editorial Staff.]

Merrill L. Johnson was found guilty in the district court of Milwaukee county of violating an ordinance of the city of Milwaukee, prohibiting the keeping, owning, or operating of any gambling device. Upon an appeal to the municipal court of Milwaukee, this conviction was set aside. The city of Milwaukee appealed from the judgment discharging Merrill L. Johnson.

The charter of the city of Milwaukee confers upon the city the power to enact ordinances “to restrain or prohibit all descriptions of gambling * * * and * * * games of chance.” Pursuant to that grant of power, the city enacted an ordinance prohibiting the keeping, owning, or operating of any slot machine or other device into which money is played or paid upon chance or upon the result of the action of any such slot machine or other device. The ordinance provided that any one who violated its provisions should be punished by fine or by imprisonment or by both such fine and imprisonment.

The defendant Johnson had in operation in his place of business a machine with a slot, into which the player inserted a 5-cent piece. When the player pulled a lever, a series of revolving discs was set in motion. When these discs ceased to revolve, the machine indicated through an opening the number of checks worth 5 cents in trade which the player would receive if he played the machine again. At the end of each play, the player by pulling another lever secured a package of mints. If the player failed to pull this second lever after placing the nickel in the slot, he forfeited his right to secure the mints upon that play. The checks secured by playing the machine could also be used to play the machine in place of nickels, but the machine was so constructed that the player secured no mints when he played the machine with these checks in place of the 5-cent piece.John M. Niven, City Atty., and Elmer H. Groth, Asst. City Atty., both of Milwaukee, for appellant.

Arthur R. Barry, of Milwaukee, for respondent.

STEVENS, J.

1. A preliminary question of procedure is presented. The city appealed from the judgment of the municipal court. The defendant contends that the action is quasi criminal in its nature, and that therefore it must be brought to this court by writ of error and not by appeal. This contention finds support in some of the earlier cases in this court. These cases hold that, where a city by ordinance prohibits that which is a crime or misdemeanor and punishable as such at common law or by statute, the action to recover the fine or penalty imposed by the ordinance is quasi criminal in its nature, and that it can be brought to this court only by writ of error. Boscobel v. Bugbee, 41 Wis. 59, 64;Platteville v. McKernan, 54 Wis. 487, 489, 11 N. W. 798;State ex rel. Hamilton v. Municipal Court, 89 Wis. 358, 361, 61 N. W. 1100.

In the cases just cited, the nature of a proceeding to collect a fine or forfeiture under a municipal ordinance was determined entirely by the question whether the act prohibited by ordinance could also be punished as a crime or a misdemeanor in a criminal proceeding which was wholly outside of and entirely independent of and separate from the proceeding under the ordinance. Under the rule adopted in these earlier cases, when the act which violated the city ordinance was not punishable 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 the act complained of can be made the basis of a criminal action. The nature of the action under the ordinance should be determined by the proceeding itself, not by the fact that the offender may be subject to punishment in some other proceeding or in some other court because of the act which is alleged to be in violation of the ordinance.

[1] In all prosecutions under city ordinances, the object of the proceeding is the same--to collect the penalty or forfeiture which has been imposed by the ordinance. The nature of the relief sought, and not the possibility that some other proceeding may be brought which is based upon the same act or omission, should be the test by which to determine whether the proceeding under the ordinance is civil or quasi criminal in its nature.

[2][3][4] The fact that the proceeding under the ordinance may be begun by a warrant and a complaint under oath does not make the proceeding criminal in its nature. Under the charter of the city of Milwaukee, and under established rules of law, “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.” Oshkosh v. Schwartz, 55 Wis. 483, 486, 13 N. W. 552, 553. The fact that the prosecution may be in the name of the city, or even of the state, does not change the nature of the action. Olson v. Hawkins, 135 Wis. 394, 399. 116 N. W. 18;Chafin v. Waukesha County, 62 Wis. 463, 468, 22 N. W. 732.

[5][6][7] The fact that the ordinance provides that the offense “shall be punished by a fine” does not necessarily lead to the conclusion that the offense is criminal or quasi criminal in its nature. When used in a city ordinance, the term “punished by fine” “implies a mere forfeiture or penalty collectible by civil action in the name of the city, in which case the city has the right of appeal.” Milwaukee v. Ruplinger, 155 Wis. 391, 395, 145 N. W. 42, 43.

“A distinction is recognized under the authorities between fines imposed for breaches of municipal ordinances and those imposed by statutes of the state.” State v. Hamley, 137 Wis. 458, 460, 119 N. W. 114, 115.

The same act may subject one to a penalty under an ordinance and also to a criminal prosecution. But the two are distinct in their legal character both as to the nature and quality of the offenses and the jurisdiction offended against. The offense under the ordinance here in question is not the same as that under the statutes which prohibit gambling.

[8] The later cases criticize the earlier decisions which hold that a proceeding under a city ordinance is a quasi criminal prosecution in all cases where the same act is punishable as a crime or a misdemeanor. In Ogden v. Madison, 111 Wis. 413, 429, 87 N. W. 568, 573 (55 L. R. A. 506), this court said of one of these earlier decisions that it seems to assume that an act--

“contrary to a city ordinance, rose to the grade of a misdemeanor for no other reason than that it was also forbidden by the state law. Why this conclusion should follow is not pointed out. It is, as we have seen, contrary to the great weight of authority, and, followed to its logical result, would so blend the two offenses that a prosecution for one would be a bar to a prosecution for the other.”

No rule is better settled in Wisconsin than that a prosecution under a city ordinance does not bar a prosecution for the same act under a state statute or under the common law.

[9][10][11] The court is satisfied that a distinction which is based upon such technical and illogical grounds ought no longer to be given judicial sanction. The court therefore adopts the rule that all proceedings to collect penalties under municipal ordinances shall be treated as civil actions, which may be brought to this court for review by appeal, regardless of whether the act complained of might also be...

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  • State v. Kramsvogel
    • United States
    • Wisconsin Supreme Court
    • May 29, 1985
    ...under a city ordinance does not bar a prosecution for the same act under a state statute or under the common law." Milwaukee v. Johnson, 192 Wis. 585, 590, 213 N.W. 335 (1927) (emphasis See also, State v. Lewis, 164 Wis. 363, 365, 159 N.W. 746 (1916); Kuder v. State, 172 Wis. 141, 145-46, 1......
  • Waller v. Florida
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    • April 6, 1970
    ...v. Knewel, 47 S.D. 142, 196 N.W. 549 (1924); State v. Tucker, 137 Wash. 162, 242 P. 363, 246 P. 758 (1926); City of Milwaukee v. Johnson, 192 Wis. 585, 213 N.W. 335 (1927); State v. Jackson, 75 Wyo. 13, 291 P.2d 798 (1955). Gross, Successive Prosecutions by City and State—The Question of Do......
  • State v. Thierfelder, 91-0942-CR
    • United States
    • Wisconsin Supreme Court
    • January 7, 1993
    ...for the same act under a state statute or under the common law." 124 Wis.2d at 109, 369 N.W.2d 145, quoting Milwaukee v. Johnson, 192 Wis. 585, 590, 213 N.W. 335 (1927). See also State v. Schulz, 100 Wis.2d 329, 330, 302 N.W.2d 59 Our cases are consistent with the United States Supreme Cour......
  • City of Milwaukee v. Milwaukee Amusement, Inc.
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    • Wisconsin Supreme Court
    • January 7, 1964
    ...the transferable score achieves the identical purpose as would providing extra free balls for the second dime. In Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N.W. 335, the alleged gambling device consisted of a machine with a slot into which the player inserted a five-cent piece. When th......
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