Guinther v. City of Milwaukee

• Decision Date: 05 February 1935
• Citation: 258 N.W. 865,217 Wis. 334
• Parties: GUINTHER ET AL. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

217 Wis. 334

258 N.W. 865

GUINTHER ET AL.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Feb. 5, 1935.

Error to review a judgment of the Municipal Court of Milwaukee County; G. N. Risjord, Circuit Judge.

Proceeding by the City of Milwaukee against Walter Guinther and others. To review an adverse judgment of the municipal court of Milwaukee county, defendants bring error.--[By Editorial Staff.]

Affirmed.

On September 23, 1933, defendants were arrested by police officers of the city of Milwaukee for the violation of a city ordinance. The complaint was duly made; defendants brought before the district court of Milwaukee; and the case called for trial September 28, 1933, and continued to October 5th when the city attorney moved to dismiss the action. This motion was joined in by defendants who demanded their discharge. W. H. Bender, Esq., appeared as a friend of the court and advised against dismissal. The motion was denied on the ground that interests of the public were involved. The case was continued for cause until October 19th, when defendants and their attorney were present. The city attorney refused to participate in the trial of the case. The district court requested George A. Affeldt, a member of the bar of said court, to appear on behalf of the plaintiff. No provision was made for compensating Mr. Affeldt and no question arises as to payment for his services. The defendants objected to further proceedings on the ground that the city was not represented by the city attorney. That objection was overruled. The trial court proceeded, found the defendants guilty, and imposed a penalty. Appeal was taken to the municipal court of Milwaukee county where similar proceedings occurred with respect to the motion to dismiss, its denial, and the appointment of Mr. Affeldt to assist the court. A jury was impaneled, testimony taken, and defendants found guilty. Defendants' motions after verdict were denied and each defendant adjudged guilty and required to pay a fine of $10 and costs, and, failing to pay such fine and costs, to be committed to the house of correction of Milwaukee county for a period of not exceeding thirty days. Defendants appealed to this court, assigning as error the denial of the motion of the city attorney to dismiss the action; the denial of defendants' motion to dismiss the action and discharge the defendants; and the appointment of Mr. Affeldt as a friend of the court. The city attorney contends that both the district court and the municipal court erred in appointing Mr. Affeldt to assist; that continuing the proceedings was erroneous; and that the judgment of the municipal court should be reversed.

Samuel D. Berg, of Milwaukee (George J. Laikin, of Milwaukee, of counsel), for plaintiffs in error.

Max Raskin, City Atty., and William F. Quick, First Asst. City Atty., both of Milwaukee, for defendant in error.

George A. Affeldt, of Milwaukee, amicus curiæ.

FAIRCHILD, Justice.

[1][2][3] When a certain act may be lawfully prosecuted under a state statute and under an ordinance, a conviction under either does not bar prosecution under the other. Ogden v. City of Madison, 111 Wis. 413, 87 N. W. 568, 55 L. R. A. 506. Municipal ordinances aimed at the suppression of disorder and crime as well as those which are regulatory and directed against acts not offenses against the state may be valid enactments. As a matter of fact, these defendants have not been charged with any offense under the state law because of the acts here involved. There is no challenge to the validity of the ordinance under which these proceedings occurred. The proposition advanced by the city attorney that “no one would insist that the city of Milwaukee must sue to recover the penalty for disorderly conduct from a murderer or a burglar” and his deduction therefrom that the city should not be compelled, in this case, to sue for the penalty for disorderly conduct because of the unlawful assemblage, is not controlling so far as a decision here is concerned. Punishment for the violation of a municipal ordinance is provided for with the purpose in mind of preventing conduct which is prejudicial to the public welfare. We need spend no time upon the classification of this action as between civil and criminal. It is treated as a civil action, although early in the history of the development of the district court of the city of Milwaukee there was written into the statute the following: “City prosecutions shall be construed to be quasi criminal * * *” (Priv. & Loc. Laws 1859, c. 199, § 30), and prosecution for violation of a municipal ordinance is referred to as quasi criminal in the cases. State v. Hamley, 137 Wis. 458, 119 N. W. 114. The statutory history may be found in chapter 199, Priv. & Loc. Laws 1859; sections 2499 to 2523, Stats. 1878; chapter 6, Laws 1895; and chapter 218, Laws 1899.

[4] The statutes creating the court provide that in a city prosecution there shall be an entry upon the record of the court of the offense charged. This entry stands as the complaint unless the court directs that a more formal complaint be made, and there is provision that the city attorney shall be the prosecuting officer in such prosecutions. Chapter 218, Laws 1899, as amended by chapter 70, Laws 1901. But the statutes seem to put a corresponding responsibility for the protection of the interests of the people of the city, including, of course, those who may chance to be defendants, upon the courts and the police department.

The city attorney, upon refusal of the district court to dismiss the action, declined to participate in the trial. The defendants had behaved in such a manner as to be guilty of disorderly conduct. There can be no doubt but that the evidence sustains the judgment that they were guilty of conduct amounting to a violation of section 1062, Ordinances of Milwaukee. They participated in the disturbance reviewed in the case of Koss v. State (Wis.) 258 N. W. 860, decided herewith. The city attorney has filed a brief in which he seeks to justify his withdrawal from the case when it was before the district court and again when it was before the municipal court. In both his brief and on oral argument he insists that his motion to dismiss the complaint should have been granted. He does concede that dismissal of the case could not have been effected without the order of the court, but argues that his determination that the case be dismissed was controlling, and that the district court of Milwaukee county had no power, after his motion to dismiss and withdrawal, to proceed...