213 N.W. 335 (Wis. 1927), City of Milwaukee v. Johnson

Citation213 N.W. 335, 192 Wis. 585
Opinion JudgeE. RAY STEVENS, J.
Party NameCITY OF MILWAUKEE, Appellant, v. JOHNSON, Respondent
AttorneyFor the appellant there was a brief by John M. Niven, city attorney, and Elmer H. Groth, assistant city attorney, and oral argument by Mr. Groth. Arthur R. Barry of Milwaukee, for the respondent.
Case DateApril 05, 1927
CourtUnited States State Supreme Court of Wisconsin

Page 335

213 N.W. 335 (Wis. 1927)

192 Wis. 585

CITY OF MILWAUKEE, Appellant,

v.

JOHNSON, Respondent

Supreme Court of Wisconsin

April 5, 1927

Argued March 11, 1927

Page 336

APPEAL from a judgment of the municipal court of Milwaukee county: GEORGE A. SHAUGHNESSY, Judge. Reversed.

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 county 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 gaming . . . 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 five-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 five 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 five-cent piece.

Judgment reversed and cause remanded.

For the appellant there was a brief by John M. Niven, city attorney, and Elmer H. Groth, assistant city attorney, and oral argument by Mr. Groth.

Arthur R. Barry of Milwaukee, for the respondent.

OPINION

Page 337

[192 Wis. 588] E. RAY 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 [192 Wis. 589] 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.

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.

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. 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.

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 [192 Wis. 590] its nature. When used in a city ordinance the term "punishable 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. "A...

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24 practice notes
  • 125 N.W.2d 625 (Wis. 1964), City of Milwaukee v. Milwaukee Amusement, Inc.
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • January 7, 1964
    ...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 the pl......
  • 133 N.W.2d 393 (Wis. 1965), City of Milwaukee v. Milwaukee County
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • March 5, 1965
    ...is for the purpose of enforcing the payment of forfeitures and not as punishment for a crime, City of Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N.W. 335, it should not be required to bear [27 Wis.2d 64] part of the cost of such revenue-producing activities. This argument is, as well as......
  • 39 N.W.2d 772 (Wis. 1949), City of Oshkosh v. Lloyd
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • November 15, 1949
    ...separate offense. State ex rel. Keefe v. Schmiege, 1946, 251 Wis. 79, 28 N.W.2d 345, 174 A.L.R. 1338; City of Milwaukee v. Johnson, 1927, 192 Wis. 585, 213 N. W. Page 774 335; City of Milwaukee v. Stachelski, 1924, 185 Wis. 142, 200 N.W. 769; Kuder v. State, 1920, 172 Wis. 141, 178 N.W. 249......
  • 142 N.W.2d 232 (Wis. 1966), City of Neenah v. Alsteen
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • May 10, 1966
    ...285, 290, 29 N.W.2d 73. [6] City of Oshkosh v. Lloyd (1949), 255 Wis. 601, 603, 39 N.W.2d 772. [7] City of Milwaukee v. Johnson (1927), 192 Wis. 585, 590, 213 N.W. 335, overruling Village of Platteville v. McKernan (1882), 54 Wis. 487, 11 N.W. 798, and City of Boscobel v. Bugbee (1876), 41 ......
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24 cases
  • 83 P.2d 611 (Okla.Crim.App. 1938), A-9356, Mackay v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • October 21, 1938
    ...382; State v. Ellis, 200 Iowa 1228, 206 N.W. 105; State v. Paul, 46 R.I. 347, 128 A. 12, 38 A.L.R. 71; City of Milwaukee v. Johnson, 192 Wis. 585, 213 N.W. 335; People v. Kopper, 253 N.Y. 83, 170 N.E. 501; People v. Spitzig, 133 Misc. 508, 233 N.Y.S. 228; State v. Krauss, 114 Ohio St. 342, ......
  • 125 N.W.2d 625 (Wis. 1964), City of Milwaukee v. Milwaukee Amusement, Inc.
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • January 7, 1964
    ...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 the pl......
  • 133 N.W.2d 393 (Wis. 1965), City of Milwaukee v. Milwaukee County
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • March 5, 1965
    ...is for the purpose of enforcing the payment of forfeitures and not as punishment for a crime, City of Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N.W. 335, it should not be required to bear [27 Wis.2d 64] part of the cost of such revenue-producing activities. This argument is, as well as......
  • 39 N.W.2d 772 (Wis. 1949), City of Oshkosh v. Lloyd
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • November 15, 1949
    ...separate offense. State ex rel. Keefe v. Schmiege, 1946, 251 Wis. 79, 28 N.W.2d 345, 174 A.L.R. 1338; City of Milwaukee v. Johnson, 1927, 192 Wis. 585, 213 N. W. Page 774 335; City of Milwaukee v. Stachelski, 1924, 185 Wis. 142, 200 N.W. 769; Kuder v. State, 1920, 172 Wis. 141, 178 N.W. 249......
  • Request a trial to view additional results

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