Hack v. City of Mineral Point

• Decision Date: 11 November 1930
• Citation: 233 N.W. 82,203 Wis. 215
• Parties: HACK v. CITY OF MINERAL POINT.
• Court: Wisconsin Supreme Court

203 Wis. 215

233 N.W. 82

HACK

v.CITY OF MINERAL POINT.^a1

Supreme Court of Wisconsin.

Nov. 11, 1930.

Writ of Error to the County Court for Iowa County; Aldro Jenks, County Judge.

Habeas corpus, on application of William Hack, against the City of Mineral Point. To review a judgment remanding him to custody, petitioner brings error.--[By Editorial Staff.]

Affirmed.

Habeas corpus. The plaintiff in error, hereinafter called the defendant, was charged with the violation of a municipal ordinance which prohibited the transportation, possession, sale, and manufacture of intoxicating liquors. He was found guilty, and upon a plea of guilty he was sentenced by the justice of the peace as follows:

“October 11, 1929. Pierie Quirk brought defendant into court complaint read defendant plead guilty court fines defendant $100. and costs and in default of payment of fine six months in Co Jail with six months sentence in Jail to be suspended for six months providing defendant doesnt violate any City Ordinance. If does serve the Sentence plus sentence for second offence Fined and costs paid.”

He was brought before the justice a second time for violation of the same ordinance, charged with an offense alleged to have been committed on February 4, 1930. Trial was had, defendant was found guilty, and the following sentence was imposed:

“Fine set at $100 and costs and to serve Six months in County Jail on sentence given on October 11, 1929. Sentence suspended for 30 days from date for defendant to dispose of business fine and costs paid.”

Upon the expiration of the February suspension of the October sentence, namely, thirty days, after the imposing of the February sentence the defendant was arrested and committed. The commitment was in the usual form and recited that the defendant was convicted of selling intoxicating liquors at his place of business in the city of Mineral Point in violation of the ordinance. The offense was set out in some detail. That part of the commitment relating to the custody of the defendant was as follows:

“Therefore, you, the said constable, are commanded forthwith to convey and deliver the said William Hack to said keeper and you, the said keeper, are hereby commanded to receive the said William Hack into your custody, in said jail, and to there safely keep until the expiration of said 180 days or until the said fine and costs aforesaid are paid, or until he shall be thence discharged by due course of law.”

The ordinance in question is a re-enactment of the provisions of the Severson Act after changes to conform it to an ordinance as distinguished from a statute.

On March 17, 1930, the defendant sued out a writ of habeas corpus in the county court for Iowa county. Upon the return of the writ and after hearing arguments, the court ordered that the defendant be remanded to the custody from whence he came. To review the judgment of the county court the defendant sued out this writ of error.Fiedler, Jackson & Boardman, of Mineral Point, for plaintiff in error.

John W. Reynolds, Atty. Gen., and Thomas N. Burke, City Atty., of Mineral Point, for defendant in error.

ROSENBERRY, C. J.

The principal contention of the defendant here is that the city council of Mineral Point had no power to pass the ordinance in question, and that if it had such power it had no power to provide for imprisonment for violation of the ordinance. It is conceded that if the city of Mineral Point had power, it is derived from section 62.11(5), Wis. Stats., which counsel for defendant designates a general welfare clause.

Prior to the enactment of chapter 242 of the Laws of 1921, the powers of cities of the second, third, and fourth classes were set out in section 925--52 of chapter 64bb, ordinarily known and described as the general charter law. Some cities had special charters. In that year all special charters of cities of the second, third, and fourth classes were repealed and all cities were brought under the re-enacted general charter law, now chapter 62, by the enactment of the so-called reviser's bill. Prior to the revision section 925--52 enumerating the powers of common councils, contained 76 subdivisions. In the introduction to the section it was provided:

“The council shall * * * have full power and authority to make, enact, ordain, establish, publish, enforce, alter, modify, amend and repeal all such rules, by-laws and regulations for the government and good order of the city, for the benefit of its trade and commerce, and health of the inhabitants thereof, for the prevention of crime and for carrying into effect the powers vested in said council as they shall deem expedient; such council shall have power to declare and impose penalties and enforce the same against any person or persons who may violate any of the provisions of such ordinances. * * *”

Then followed the particular enumeration of the powers above referred to.

It is manifest from a perusal of this introductory clause that the power of the council to enforce ordinances was limited to the imposition of penalties. By the revision of 1921 the 76 specific provisions were omitted except as reenacted in other parts of the chapter and section 62.11, which described the powers conferred upon cities of the second, third, and fourth classes read as follows:

“Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.”

That section 62.11 confers power far beyond that conferred in the so-called general welfare clause of the general charter as it stood prior to 1921 is plain, and a city operating under the general charter finding no limitations in express language has under the provisions of this chapter all the powers that the Legislature could by any possibility confer upon it. The provisions of the chapter as it stood prior to 1921 clearly limited the power to enforce the ordinances to the imposition of penalties. It now has the power to enforce it by fine, imprisonment, confiscation, and other necessary or convenient means.

There remains then upon this branch of the case for consideration the question of whether or not the power thus granted has been withheld or withdrawn by express language. We are referred to no...