City of Madison v. Geier

Citation27 Wis.2d 687,135 N.W.2d 761
PartiesCITY OF MADISON, a municipal corporation, in Dane County, Wisconsin, Plaintiff-Appellant, v. Anthony W. GEIER, Defendant-Respondent.
Decision Date04 June 1965
CourtUnited States State Supreme Court of Wisconsin

Edwin C. Conrad, City Atty., David Pappas, Asst. City Atty., Madison, for appellant.

John Kasimatis, Madison, for respondent.

Julian Bradbury and Jean G. Setterholm, Madison, amicus curiae League of Wisconsin Municipalities.

HALLOWS, Justice.

By sec. 299.30(5), Stats., the circuit court on an appeal in a municipal forfeiture action is granted the same power as this court under ch. 274, Stats., to review, affirm, reverse or modify the appealed judgment. In such an appeal the circuit court makes no finding of fact; hence, on this appeal this court begins where the appeal to the circuit court began, i. e., the finding of the trial court. In ordinance-violation cases sometimes called forfeiture actions as in other civil cases, unless the findings of the trial court are against the great weight and clear preponderance of the evidence they will not be set aside on appeal even though contrary findings might have been made with evidence in their support. City of Milwaukee v. Thompson (1964), 24 Wis.2d 621, 130 N.W.2d 241; Will of Freitag (1960), 9 Wis.2d 315, 101 N.W.2d 108. But, to apply the great weight and clear preponderance test a court's finding must at least be supported by evidence sufficient to meet the burden of proof for that type of case.

The Circuit court was of the view the proof failed in quality and quantum necessary to convict the defendant of an ordinance violation. The Madison city ordinance sec. 12.86 is identical with the criminal sec. 346.94(2), Stats., which provides, 'Racing. No operator of a motor vehicle shall participate in any race or speed or endurance contest upon any highway.' The statute does not provide what burden of proof is applicable to violations of municipal ordinances modeled after criminal statutes.

The record does not show what standard was used by the trial court, but the circuit court tested the evidence by the 'clear, satisfactory and convincing evidence' rule of burden of proof. This burden, while greater than required in ordinary civil cases, is not as great as 'beyond a reasonable doubt' used in criminal cases. There seems to be some confusion in the trial courts as to the proper burden of proof applicable to forfeiture actions when the acts constituting the violation also constitute a crime under state statutes. Sixty years ago we held in State v. Nergaard (1905), 124 Wis. 414, 102 N.W. 899, that in a civil action to recover a forfeiture for a violation of a fish and game law, which was not a misdemeanor, the state need not establish its case beyond a reasonable doubt but only by the preponderance of the evidence. But this case did not solve any problem relating to forfeiture cases which involved criminal acts.

At that time it was well established there existed three different burdens of proof, although the two standards applicable to civil cases were not always uniformly stated. Thus in Poertner v. Poertner (1886), 66 Wis. 644, 29 N.W. 386, the burden of proof applied in civil cases involving fraud, criminal offenses and other culpable liability was stated as 'clear and satisfactory preponderance of the evidence,' which in Klipstein v. Raschein (1903), 117 Wis. 248, 94 N.W. 63, was equated to the more preferred form of stating the test in terms of 'clear and satisfactory evidence.' In Klipstein, which involved fraud, the court also stated this formulation meant substantially the same as the instruction 'clear preponderance of the evidence' used by the trial court. The three burdens of proof were again reviewed in Kuehn v. Kuehn (1960), 11 Wis.2d 15, 104 N.W.2d 138, in which we stated the preferential way of stating the middle standard of proof which was applicable to civil actions involving criminal acts and fraud was in terms of 'clear, satisfactory and convincing evidence.'

We considered ordinance forfeiture cases so far as the elements of the violation were concerned when the acts also amounted to a crime to be in that class of civil actions which involved fraud, undue influence, criminal acts, reformation, mutual mistakes, and others, which public policy requires to be proved by evidence which is clear, satisfactory and convincing. We saw no difference in such a civil case being prosecuted by a private citizen and a municipality. We recently pointed out in Milwaukee v. Wuky (1965), 26 Wis.2d 555, 133 N.W.2d 356, such forfeiture cases at best are in fact a hybrid proceeding--one has no right to a special verdict; pleas of guilty, of not guilty or of nolo contendere, are made instead of an answer; the action is commenced by warrant or summons; and one may be arrested and bail provisions apply.

Perhaps some confusion arose out of whether the middle standard applied to forfeiture actions involving crimes because of our language in Shawano County v. Wendt (1963), 20 Wis.2d 29, 121 N.W.2d 300. In that case we said the violation of a county ordinance which also amounted to a crime need not be proved by the criminal-law burden of proof but by 'a clear preponderance of the evidence.' We thought it clear as was held in Bengston v. Estes (1952), 260 Wis. 595, 599, 51 N.W.2d 539, and in Odegard v. North Wisconsin L. Co. (1907), 130 Wis. 659, 110 N.W. 809, that 'a clear preponderance of the evidence' was not synonymous with the rule 'fair preponderance of the evidence' and required a greater burden of proof than was necessary in ordinary civil cases.

The preferred formulation of the rule now appears in Jury Instructions No. 205, 210, and 211, Wis.J.I., Civil, and specifically for forfeiture actions in Instruction No. 2050, Wis.J.I., Criminal, 1 which we approve for use in all forfeiture actions involving criminal acts. Although the circuit court applied the proper burden of proof standard, we differ with the circuit court over the quality of the evidence produced and believe it met the standard.

The defendant argues that racing has five elements with must be proved to sustain a conviction under the ordinance, namely, intent, prior agreement, competition, high speed and distance. We think the first three are but shades of the same conceptual notion that a race is an intentional competition in respect to some phase of locomotion. The dominant characteristic of a race is the awareness or intent of competition in respect to speed and distance to prove superiority in performance in some respect. Normally, to constitute a race there must be an acceptance or competitive response to the awareness of the challenge; such response may be the result of prearrangement or it may come into existence on the spur of the moment. There need be no prior formal or express agreement. In respect to automobiles the element of competition resulting from some understanding involving a challenge and a response may often reasonably by inferred from the speeds and the relative positions of the cars. Nelson v. Nason (1961), 343 Mass. 220, 177 N.E.2d 887; and State v. O'Connor (1962), 76 N.J.Super. 246, 184 A.2d 83. 2

Intermediate appellate courts interpreting statutes prohibiting racing on public highways have generally held that a race is a contest of speed or acceleration. State v. Dionne (1962), 24 Conn.Sup. 59, 186 A.2d 561, considered a race as a contest of speed, a competitive trial of speed, but not necessarily of illegal speed. It was also considered 'not necessary that there be some prior agreement of understanding or some prearrangement before there can be a race; there can be a race by total strangers on the spur of the moment.' In State v. Hughes (1963), 2 Conn.Cir. 75, 194 A.2d 722, a race was considered 'a contest of speed--involving the idea of competitive locomotion--in which competition is an essential element.' It was pointed out the idea of a race could be entirely subjective in the minds of each party and there may be a race in fact by reason of their competitive acts which could be determined by reasonable and logical inferences from observable circumstances. However, two cars may proceed abreast at various speeds even exceeding the legal limit without racing. In State v. Hart (1963), 2 Conn.Cir. 27, 193 A.2d 903, such was the situation but it was held there was no race because the drivers were merely calibrating the tachometer on one car whose speedometer was broken with the speedometer in the other car. In People v. Squilleri (1962), 37 Misc.2d 291, 231 N.Y.S.2d 443, the defendant was convicted of 'drag racing' as a violation of the New York Vehicle and Traffic Law prohibiting 'races or contests for speed.' The court held the statute encompassed drag racing, which it defined as an acceleration contest between automobiles.

In his contention that to constitute a race there must be high speed and distance the defendant relies on In Re Harvill (1959), 168 Cal.App.2d 490, 335 P.2d 1016, where cars traveled at 50-55 miles per hour for over one-half mile; Anen. Motor Vehicle Operator's License Case (1961), 194 Pa.Super. 379, 169 A.2d 600, speed in excess of 65 miles per hour for over a mile; Commonwealth v. Miller (1962), 197 Pa.Super. 315, 179 A.2d 251, speed of 40-45 miles per hour for one-fifth of a mile; State v. Hughes (1963) 2 Conn.Cir. 75, 194 A.2d 722, over 75 miles per hour for over sixtenths of a mile; and Nelson v. Nason, supra, a speed over 70 miles an hour for over a mile. While racing convictions were upheld in those cases it does not follow that lesser speeds or shorter distances would have resulted in acquittals.

Speed and distance are relative and depend on the nature of the race. A drag race is of short distance to contest superiority in acceleration which may or may not exceed the speed limit. Some races may test the highest speed over a given distance, others only the result. There was neither great speed nor acceleration in the...

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