City of Madison v. McManus
| Decision Date | 28 October 1969 |
| Docket Number | No. 125,125 |
| Citation | 171 N.W.2d 426,44 Wis.2d 396 |
| Parties | CITY OF MADISON, a municipal corporation, Respondent, v. Jack McMANUS, Appellant. |
| Court | Wisconsin Supreme Court |
The order appealed from affirmed a judgment of the county court finding appellant Jack McManus guilty of violating Madison city ordinance 12.128(9)(a) and directing him to pay a forfeiture of $100 and $3 costs.
Jack McManus, pro se.
Edwin Conrad, City Atty., Frederick W. Fischer, Asst. City Atty., Madison, for respondent.
McManus parked his car in a nonparking zone in the basement garage of the city-county building in the city of Madison, Wisconsin, in parking stall which was reserved for the Dane county purchasing department. This violation was his first such offense. There were signs in the garage indicating 'No Parking,' 'Authorized Vehicle Only,' and 'Parking by Permit Only.' It was stipulated McManus had no permit to park in the parking stall.
The primary challenge is that the city ordinance is invalid because its penalty provision exceeds the provision of the equivalent state statute contrary to sec. 349.06, Stats. The equivalent state statute, sec. 346.55(3), 1 prohibits parking on public property without permission contrary to a posted sign thereon. The penalty for such violation as provided by sec. 346.56(1) 2 is a fine of not less than $20 nor more than $40 for the first violation. A city may enact traffic regulations based on the provisions of chapter 341 through chapter 348, Stats., if the traffic regulations are 'in strict conformity' with these chapters, but the penalty for violation of any traffic regulation shall be limited to a forfeiture. Sec. 349.06, Stats. 3 Pursuant to this authority the city of Madison enacted city ordinance 12.128(9) (a) 4 which carries a penalty of not less than $10 nor more than $200. 5
The issue is whetehr the city ordinance providing a maximum penalty of $200, which exceeds the maximum $40 penalty in sec. 346.56(1), Stats., is void. It is argued by the city that the phrase 'strict conformity' refers only to the offense or substantive law and not to the penalty provision while McManus claims 'strict conformity' also applies to the penalty.
This dispute centers around our language in Dane County v. Bloomfield (1954), 267 Wis. 193, 64 N.W.2d 829, wherein this court held a forfeiture provided for violation of a local traffic ordinance based on a state statute could be less than the statutory penalty. In reaching this conclusion we stated 'strict conformity' referred to the offense and not to the penalty of the state law and '(a)ny other construction would result in a repeal by the legislature of all local ordinances dealing with drunken driving.'
This reasoning was based on the fact that after the county of Dane had patterned its ordinance on drunken driving after the state statute, the state increased the penalty for drunken driving. It was assumed the enactment of the statute increasing the state penalty 'would result in a repeal by the legislature of all local ordinances dealing with drunken driving' unless the court construed the 'strict conformity' clause of sec. 349.06 not to apply to a penalty. It was also reasoned that since State ex rel. Keefe v. Schmiege (1947), 251 Wis. 79, 28 N.W.2d 345, 174 A.L.R. 1338, held a county or a municipal ordinance could not provide for imprisonment, the penalty provision could not strictly conform to the corresponding state statute and, therefore, was not meant to apply to forfeitures at all.
But a more reasonable interpretation is that the forfeiture provision of a local ordinance must strictly conform to the statute. The language 'the penalty for violation of any of its provisions shall be limited to a forfeiture' does not take the forfeiture out of the strict conformity clause. This language merely reflected the holding of the Schmiege Case that the penalty of a local ordinance must be limited to a forfeiture.
However, 'strict conformity' does not mean the same or the identical penalty in the form of a forfeiture. Strict conformity in respect to a penalty means not in excess of, i.e., strict conformity to a speed limit means not more than the limit but it does permit less than the limit. Of course, 'strict conformity' may be used to mean copying in exact detail but when so used it is generally employed as a direction and is mandatory. However, there is no requirement that counties or municipalities must enact traffic ordinances. The holding in Bloomfield was correct, but its penalty rationale of strict conformity was unnecessary and incorrect. This interpretation is not contrary to City of Racine v. Povkovich (1964), 22 Wis.2d 359, 126 N.W.2d 37. That case did not decide an excess penalty was void; it did not even discuss the question. As used in sec. 349.06, Stats., 'strict conformity' means the amount of the forfeiture cannot exceed the state penalty but may be less than it.
This interpretation does not mean the ordinance is void in its entirety but only the amount of the forfeiture exceeding $40 for the first offense and $100 for the second offense. In this ordinance the penalty provision may be severed from the offense and the excess of the penalty from the valid part. In Schmiege this court thought the offense and the penalty could not be separated because of the nature of the offense. However, in Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N.W. 335, we held the provision imposing imprisonment as a penalty for a violation of an ordinance was severable and did not invalidate the entire ordinance. Certainly the $200 forfeiture was not the prime inducement which led the city of Madison officials to pass this ordinance. The amount of the forfeiture in sec. 12.141(6) in the ordinance applies to several different offenses. We cannot hold the matter of a maximum $200 fine was deemed so important by the common council that it would not have passed ordinance 12.128(9)(a) if this penalty had not been included. See Brittingham & Hixon L. Co. v. Sparta (1914), 157 Wis. 345, 147 N.W. 635; Milwaukee v. Burns (1937), 225 Wis. 296, 274 N.W. 273.
Even if we were to conclude that the strict conformity rule does not apply to the forfeiture provisions of an ordinance, we would be forced to find as a matter of law the excess of the forfeiture invalid because the amount of the forfeiture is excessive and unreasonable in view of the nature and the object of the ordinance. An ordinance should not carry a greater forfeiture than the...
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