Olson v. Hawkins

• Decision Date: 17 April 1908
• Citation: 135 Wis. 394,116 N.W. 18
• Parties: OLSON v. HAWKINS ET AL.
• Court: Wisconsin Supreme Court

135 Wis. 394

116 N.W. 18

OLSON

v.HAWKINS ET AL.

Supreme Court of Wisconsin.

April 17, 1908.

Appeal from Circuit Court, Chippewa County; A. J. Vinje, Judge.

Action by Peter Olson against S. N. Hawkins and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Among other references upon the part of the appellant were the following: Sections 925-61, 925-65, 925-67, 925-69, St. 1898; sections 4744, 3662, St. 1898; Hepler v. State, 43 Wis. 479;Harrington v. State, 50 Wis. 68, 6 N. W. 317;McNamara v. Spees, 25 Wis. 539;Perkins v. Jones, 28 Wis. 243;Wearne v. Smith, 32 Wis. 412; sections 17, 27, and 28, c. 82, pp. 413, 418, 419, Laws of 1885; Davey v. Janesville, 111 Wis. 628, 87 N. W. 813; art. 7, § 15, Const. Wis.; In re Boyle, 9 Wis. 264;Cole v. Black River Falls, 57 Wis. 110, 14 N. W. 906;Yorty v. Paine, 62 Wis. 154, 22 N. W. 137;In re Burke, 76 Wis. 357, 45 N. W. 24;Fenelon v. Butts, 49 Wis. 342, 5 N. W. 784;Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178.

Among other references upon the part of the respondent were the following: Baizer v. Lasch, 28 Wis. 268;State ex rel. Dearborn v. Merrick, 101 Wis. 162, 77 N. W. 719;Brosde v. Sanderson, 86 Wis. 368, 57 N. W. 49;State v. Tall, 56 Wis. 577, 14 N. W. 596;State v. Boncher, 59 Wis. 477, 18 N. W. 335; section 3744, St. 1898; sections 4739 to 4774, c. 194, St. 1898; section 4759, Id.; article 7, § 2, Const. Wis.; sections 3569, 3570, 3623, 3625, 3616, 3617, St. 1898; sections 853a, 926, Id.; section 3574, subd. 5, St. 1898; Crate v. Pettepher, 112 Wis. 252, 87 N. W. 1104;Platteville v. Bell, 43 Wis. 488;Fulton v. Meiners, 103 Wis. 238, 79 N. W. 234;State v. Schweitzer, 131 Wis. 138, 111 N. W. 219;State v. Goldstucker, 40 Wis. 124;State v. Oates, 86 Wis. 634, 57 N. W. 296.Baker & Haven and Geo. Oakes, for appellant.

A. J. Kinney and S. N. Hawkins, for respondents.

TIMLIN, J.

The appellant brought an action for false imprisonment against the defendant Hawkins, who was mayor of the city of New Richmond, and who took some part in the prosecution, Beebe, who was acting as police justice of that city, and O'Brien, the officer who executed the warrant and commitment, in an action against Olson for violation of a city ordinance. The circuit court directed a verdict for defendants, and the principal contention upon this appeal is that the court erred in so doing because it was shown that Beebe was not police justice de jure or de facto, and hence the proceedings which resulted in Olson's imprisonment were coram non judice and void, and all concerned therein liable for false imprisonment. New Richmond was a city under special charter found in chapter 82, p. 410, Laws 1885. In the year 1895 it adopted the general charter law (chapter 40a, St. 1898). At and prior to this time it had no municipal court or judge, but by requirement of its special charter violations of the city ordinances were prosecuted before justices of the peace of the city. For several years after the adoption of the general charter law no police justice was elected or qualified. Hence these justice courts continued with authority such as they exercised under special charter. Section 925-61, St. 1898; State ex rel. Dunlap v. Nohl, 113 Wis. 15, 88 N. W. 1004. But about May 1, 1906, the mayor appointed Beebe police justice, to hold that office until it should be filled by election, and the common council by resolution declared that a vacancy existed in the office of police justice, and confirmed the appointment of Beebe to fill such vacancy. Beebe qualified by filing his oath and bond, and entered upon the discharge of the duties of the office claiming to be, and exercising the powers of, police justice, and had been so engaged about six months when the prosecution of Olson was commenced before him.

The question thus presented is upon the interpretation of section 925-61, St. 1898. By that statute it is only in cases where certain designated courts existed that the election of police justice is forbidden until such special tribunals are abolished. Such courts must have been created by statute, and are to be abolished by statute. Neither the Legislature nor the city authorities would have power to abolish the office or the court of justice of the peace. State v. Goldstucker, 40 Wis. 124;Gilowsky v. Connolly, Jr., 55 Wis. 445, 13 N. W. 444. The section of the general charter law under consideration plainly contemplates the continued existence of the office of justice of the peace after the adoption of the general charter law, because it provides that the common council may abolish the police court, and that in such case the justices of the peace shall have jurisdiction of prosecutions for the infraction of city ordinances. No such action was taken by the common council of the city of New Richmond. The election of police justice is authorized upon the adoption of the general charter in all cities adopting that charter, except such cities as had during their prior charter existence a court or judge having jurisdiction of prosecutions for the violation of ordinances, and such a court or judge that the court or the office of the judge could be abolished by the Legislature. But in New Richmond no such condition existed, and no provision of the general charter required any action by the city authorities preliminary to the election of a police justice except the adoption of the general city charter law. At the first election succeeding the completed adoption of the general charter law the city of New Richmond might have elected a police justice. It failed to do so, but the office was in existence, and proper to be filled at any succeeding city election. This brings the case within the rule of In re Burke, 76 Wis. 357, 45 N. W. 24;State v. Bloom, 17 Wis. 521, explained by Cassoday, J., in Chicago & N. W. Ry. Co. v. Langlade County, 56 Wis. 614, 629, 14 N. W. 844, op.

It is therefore unnecessary for us to determine whether the failure to elect a police justice in the first instance, after having adopted the general charter law, created a vacancy in that office which the mayor was authorized to fill under section 925-31, St. 1898; for under the rule of the cases last cited, even if the appointment were premature, the appointee Beebe was police justice de facto. There was therefore no liability of either defendant for false imprisonment upon this ground. But it is argued that even if Mr. Beebe was police justice de facto he lost jurisdiction of the case against Olson by adjourning over after Olson pleaded guilty on November 1st to November 3d without stating in his docket any cause for such adjournment, and that the commitment was insufficient in form and void. The complaint merely charges Olson with having violated a city ordinance, describing it. The prosecution, although in the name of the state, was a civil action. Platteville v. Bell, 43 Wis. 488;Oshkosh v. Schwartz, 55 Wis....