City of Oshkosh v. Lloyd

• Decision Date: 15 November 1949
• Citation: 255 Wis. 601,39 N.W.2d 772
• Parties: CITY OF OSHKOSH, v. LLOYD.
• Court: Wisconsin Supreme Court

Page 772

39 N.W.2d 772

255 Wis. 601

CITY OF OSHKOSH, v. LLOYD.

Supreme Court of Wisconsin.

Nov. 15, 1949.

Franklin McDonald, Oshkosh, for appellant.

Harry E. Meyer, Oshkosh, for respondent.

FAIRCHILD, Justice.

There is no evidence brought here by appellant. There is no bill of exceptions. Appellant asks this court to pass on the question of whether certain evidence existed without any evidence before it. We hold that this record does not warrant questioning the ruling of the learned trial judge, who said when ruling upon motions after verdict: 'The undisputed evidence is to the effect that the defendant (appellant here) was intoxicated on the night on which he was arrested. * * *' Under the circumstances, the court concluded 'that the verdict of the jury is an obvious miscarriage of justice, and this being a civil case the court has no alternative but to set aside the verdict.'

An action to recover a forfeiture for violation of a municipal ordinance is a civil action and the rules of civil procedure apply. City of Milwaukee v. Burns, 1937, 225 Wis. 296, 274 N.W. 273. The trial judge states that the evidence of guilt is undisputed. Under such evidence a directed verdict would be the proper disposition; or after an unsupported verdict of not guilty has been rendered, it would be the duty of the trial court to set aside the verdict and enter judgment according to the facts. City of Milwaukee v. Burns, supra. Therefore, the contentions of appellant as to the controlling effect of a jury's verdict cannot be sustained under the circumstances. There was no error committed in setting aside this verdict, and there is no occasion for granting a new trial.

The appellant complains that because, in addition to the forfeiture, his license to drive may be revoked under sec. 85.08(25), Stats.1947, if he is found guilty under the ordinance of driving while under the influence of intoxicating liquor, he should be accorded special treatment. His argument evidently is that this provision in sec. 85.08(25) makes a prosecution for violation of a drunken driving ordinance a criminal action. Under that type of action the judge would not have been allowed to change the jury verdict. Patently that argument is groundless. The statute is separate and provides for a 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 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; Ogden v. City of Madison, 1911, 111 Wis. 413, 87 N.W. 568, 55 L.R.A. 506. See also Annotation, Offenses as to which a jury trial is a constitutional right, 1930, 75 L.Ed. 177, 197. The statutory provision for revocation of the license adds nothing to the ordinance. It is a mere incidental consequence of violation of the ordinance. State v. Parks, 1937, 199 Minn. 622, 273 N.W. 233. It certainly cannot have the effect of changing a civil into a criminal action.

During the argument our attention was called to the case of District of Columbia v. Colts, 1930, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177, as having some bearing on the question; but we have left that case aside because the difference between the character of legislation in that case and the ordinance here considered is so apparent that the Colts case cannot be considered influential as a precedent. The ordinance in the case at bar provides for a civil action to recover a forfeiture; the act of congress in the Colts case provided for an action to punish an offense by imposing a fine or imprisonment and for proceedings to be begun by charging the offense in an information.

Respondent asks that this court rule that, on appeal to circuit court, a jury trial may not be had in a prosecution for a violation of a city ordinance. It is the general rule that the constitutional right to a trial by jury does not apply to violations of municipal ordinances. Annotation, Offenses as to which a jury trial is a constitutional right, supra, 75 L.Ed. at page 192; 31 Am.Jur. 576; [255 Wis. 605] Note, 1948 Wis.L.Rev. 96. Therefore, we hold that these offenses are of the class which may be disposed of summarily in the municipal court especially where the statute so provides; but where there is a statutory provision for a jury trial, one may be had. Consequently, there may be an appeal to circuit court where there may be a trial by jury unless waived. The practice followed in Wisconsin, as outlined in the Ogden case, supra, and approved in the Burns case, supra, is confirmed.

Judgment affirmed.

HUGHES, Justice (dissenting).

The majority cites State ex rel. Keefe v. Schmiege, 1946, 251 Wis. 79, 28 N.W.2d 345; City of Milwaukee v. Johnson, 1927, 192 Wis. 585, 213 N.W. 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; and Ogden v. City of Madison, 1911, 111 Wis. 413, 87 N.W. 568, 55 A.L.R. 506, to the effect that the action is civil in nature and entirely independent of the statute making the same conduct of the defendant a crime.

In City of Milwaukee v. Johnson, supra, this court pointed out that the earlier cases held, 192 Wis. at pages 588-589, 213 N.W. at page 337:

'* * * 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. City of Boscobel v. Bugbee, 41 Wis. 59, 64; Village of Platteville v. McKernan, 54 Wis. 487 , 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. City of 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 facts that the act complained of can be made the basis of a criminal action. * * *

'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 court in that case was determining solely the question of whether the case could be reviewed upon appeal rather than upon a writ of error. It went into a long dissertation on the unimportance of procedure and the desirability of avoiding dilatory tactics and concluded this phase of the case with this language, 192 Wis. at page 591, 213 N.W. at page 338:

'Rules of practice and procedure, which are not essential to protect property rights or the substantial rights of litigants, must give way to rules which will not impede the progress of justice. Courts must ever regard substance and not be controlled by mere matters of form, when passing upon rules of practice and procedure. Those rules must be given judicial sanction which promote the speedy determination of the rights of the parties, provided always that the rules that are approved by the court are such as will protect the substantial rights of persons and of property. The rule upon which the defendant relies is based upon a purely technical distinction which does not exist in fact. Its only effect is to hinder and delay the courts in the administration of justice.' (Italics supplied.)

The court then went on to direct the municipal court of Milwaukee county to affirm a judgment of the district court convicting the defendant of possession of gambling devices.

The case of City of Milwaukee v. Stachelski, supra, was a prosecution for violation of a city ordinance prohibiting sale of liquor on premises located in the city without first procuring a license,--conduct purely malum prohibitum.

Kuder v. State, supra, was a prosecution for speeding in violation of a county ordinance. This court held that a county ordinance violation could not be prosecuted in the name of the state as a criminal action, and ordered the proceedings dismissed. It is hardly helpful in considering the present question.

The case of State ex rel. Keefe v. Schmiege, supra, 251 Wis. 79, 28 N.W.2d 349, was a special proceeding for a writ of prohibition from the circuit court of Winnebago county to Schmiege, acting judge of the municipal court for Winnebago county, to prevent him from empaneling a jury to try a defendant accused of operating a motor vehicle while under the influence of intoxicating liquor. The trial court refused to grant the district attorney's petition.

This court upon appeal entered its mandate: 'The order and judgment are reversed with directions to grant the petition for a writ'.

From this it would appear that the question now before the court had been passed upon and that the trial judge was to be directed to try the matter without a jury.

The opinion of the court indicates, however, that such was not the result, 251 Wis. 79, 86, 28 N.W.2d at page 349:

'For the reasons we have advanced that portion of the Winnebago county ordinance declaring drunken driving to be a misdemeanor and imposing punishment by fine, imprisonment or both is invalid. Whether that portion of the ordinance is severable from the rest so as to permit the enforcement of the rest as a valid regulation, is the next problem to be considered. The ordinance specifically provides for a penalty to be imposed ...