City of Milwaukee v. Weiss

• Decision Date: 22 September 1896
• Citation: 93 Wis. 653,68 N.W. 390
• Parties: CITY OF MILWAUKEE v. WEISS.
• Court: Wisconsin Supreme Court

93 Wis. 653

68 N.W. 390

CITY OF MILWAUKEE

v.WEISS.

Supreme Court of Wisconsin.

Sept. 22, 1896.

Error to municipal court of Milwaukee; Neele B. Neelen, Judge.

Action by the city of Milwaukee against Leonard Weiss for the violation of a city ordinance. From a judgment in favor of defendant, plaintiff brings error. Dismissed.Charles H. Hamilton, for plaintiff in error.

Toohey, Gilmore & Donovan, for defendant in error.

CASSODAY, C. J.

The defendant in error was charged, in the police court, with having violated the city ordinance regulating the sale of milk therein. On being tried therefor in that court, by consent, before a jury of six men, he was acquitted, and thereupon judgment was entered discharging him from custody. To reverse that judgment, the city sues out this writ of error. This court has recently held that such judgment cannot be taken directly to this court for review on writ of error.¹City of Milwaukee v. Simons (Wis.) 67 N. W. 922. We fully approve of what was there said by Mr. Justice Marshall. It is claimed, however, on the part of the city, that it is without any remedy, unless given by this writ of error. It is true, the act creating such police court (section 16, c. 6, Laws 1895) gives to every person convicted therein the right to appeal to the municipal court of that city and county, and a retrial therein, but does not, in express terms, give a right of appeal to the city in case of acquittal in the police court, as here. It does not appear from the record before us whether this is a mere civil action to recover a penalty imposed by the ordinance or is a misdemeanor, within the meaning of the statute. Rev. St. § 3294. If this is a mere civil action to recover a penalty, then, under the statutes regulating appeals in such cases, the city, it would seem, has a remedy. City of Boscobel v. Bugbee, 41 Wis. 59;City of Oshkosh v. Schwartz, 55 Wis. 483, 13 N. W. 552;State v. Grove, 77 Wis. 448, 46 N. W. 532. If, on the other hand, the offense charged constitutes a crime or misdemeanor, within the meaning of the statute cited, then it is obvious that the city is not entitled to such writ of error. U. S. v. Salter, 1 Pin. 278;State v. Kemp, 17 Wis. 669;State v. Martin, 30 Wis. 216;State v. Grottkau, 73 Wis. 595, 41 N. W. 80, 1063;State v. Municipal Court, 89 Wis. 358, 61 N. W. 1100;U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609. It follows from what has been said that the writ of error was improvidently granted, and is...