City of South Milwaukee v. Schantzen

• Decision Date: 08 November 1950
• Citation: 44 N.W.2d 628,258 Wis. 41
• Parties: CITY OF SOUTH MILWAUKEE, v. SCHANTZEN.
• Court: Wisconsin Supreme Court

Page 628

44 N.W.2d 628

258 Wis. 41

CITY OF SOUTH MILWAUKEE, v. SCHANTZEN.

Supreme Court of Wisconsin.

Nov. 8, 1950.

Joseph M. Picker, Milwaukee, Howard G. Brown, Milwaukee, of counsel, for appellant.

Robert E. Mullins, South Milwaukee, for respondent.

BROWN, Justice.

The appellant assigns a number of errors, among them an alteration of the affidavit at the trial by the justice, so that it charged drunken instead of reckless driving; and the sentence of a 'fine' when the statute authorizes only a forfeiture, and imprisonment in the House of Correction while the ordinance specifies the county jail. The appeal also attacks the sufficiency of the evidence upon which the defendant was found guilty. We do not treat these matters because we think the question of jurisdiction makes discussion of them unnecessary.

Sec. 62.24(1) authorizes a city to elect a police justice of the peace; (2) confers on him the same jurisdiction as any other justice of the peace and exclusive jurisdiction of offenses against the city ordinances; (3)(b) states: 'The procedure shall be the same as is applicable to other justices of the peace, except as otherwise provided.' No such exceptions affect the question now before us.

The court of a justice of the peace is one of limited jurisdiction, having only such jurisdiction as shall be prescribed by law. Wis.Const.Art. VII, Sec. 15. City ordinances cannot create crimes or misdemeanors. State ex rel. Keefe v. Schmiege, 1946, 251 Wis. 79, 84, 28 N.W.2d 345. An action to recover a forfeiture for violation of an ordinance is thus a civil proceeding and its procedure is that of other civil proceedings. The statutes authorize the collection of forfeitures in two ways: by suit based upon a complaint, sec. 288.10, Stats., and by an affidavit by the plaintiff or someone in his behalf followed by the issue of a warrant by the justice of the peace, Sec. 301.10(4), Stats.

'Except in actions begun by warrant, the first process in actions shall be a summons in the form provided by section 301.17, returnable not less than 6 nor more than 15 days from its date.' Sec. 301.03, Stats. No such summons was served on Schantzen nor can we find that one ever existed, nor was he ever served with a complaint alleging his indebtedness to the city for the amount of the forfeiture claimed, as provided by sec. 288.10, Stats. We think it clear that the city was not proceeding by civil action under Chap. 288, Stats. and no jurisdiction for proceedings thereunder was acquired.

It seems equally clear that the method adopted was an attempted compliance with sec. 301.10, Stats., the material part of which, for this purpose, reads:

'Warrant, when to issue. The plaintiff is entitled to a warrant to arrest the body of the defendant upon filing with the justice an affidavit, made by him or in his behalf, showing to the satisfaction of the justice either:

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'(4) That the defendant has incurred a penalty or forfeiture by the violation of some law, specifying the same, for which the plaintiff was a right to prosecute. * * *

Sec. 301.11, Stats. directs that: '* * * The warrant shall command the sheriff or constable to take the body of the defendant and bring him forthwith before the justice to answer the plaintiff, * * *.'

The affidavit already described was filed and the warrant issued. We must inquire whether the affidavit met the requirements of sec. 301.10, Stats. and gave the justice jurisdiction to issue the warrant.

Szymanski's affidavit does not recite anywhere that he makes it on behalf of the city which, in subsequent proceedings, appeared as plaintiff. It reads as though it was made in his own behalf and he designates himself 'the complainant' in the prayer for relief. Counsel for the city submits that the statute does not require the affidavit to state that it is made in behalf of the plaintiff but it is sufficient that it actually is made in such behalf. The same argument was made concerning the same statutory words in an attachment action, Wiley v. C. Aultman & Co., 1881, 53 Wis. 560, 562, 11 N.W. 32, but did not win the approval of the court which held that the affidavit must state that it is made in behalf of the plaintiff. Counsel also argues that the designation of affiant as 'Officer Szymanski' is a sufficient indication that he was acting in a representative capacity. Even if that much could be conceded, which is doubtful, it does not appear from his affidavit who or what he represents. Wiley v. C. Aultman & Co., supra, holds, further, that when the affiant does not state that he makes the affidavit in plaintiff's behalf such missing fact cannot be proved by other evidence. Wiley v. C. Aultman & Co., supra was followed by Miller v. Chicago, Milwaukee & St. Paul Ry. Co., 1883, 58 Wis. 310, 17 N.W. 130, another attachment case, which held that if the affidavit is not made by the plaintiff, it must state under oath that it is made in plaintiff's behalf, and a preliminary recitation, not under oath, to that effect does not satisfy the statute. In both the Wiley and the Miller cases, supra, it was held that the justice acquired no jurisdiction by the defective affidavits and the warrant and the proceedings based upon it were void.

In Detroit Safe Co. v. Kelly, 1890, 78 Wis. 134, 47 N.W. 187, in a replevin action brought under sec. 3733, Stats. requiring such an affidavit, one like that in the Miller case, supra, was held insufficient, resulting in a failure of jurisdiction. The court said, 78 Wis. at page 137, 47 N.W. at page 187, 'The difficulty with the affidavit in the case at bar is that it fails to...