State ex rel. Dunlap v. Nohl

• Decision Date: 28 January 1902
• Citation: 113 Wis. 15,88 N.W. 1004
• Parties: STATE EX REL. DUNLAP v. NOHL.
• Court: Wisconsin Supreme Court

113 Wis. 15

88 N.W. 1004

STATE EX REL. DUNLAP

v.NOHL.

Supreme Court of Wisconsin.

Jan. 28, 1902.

Appeal from circuit court, Fond du Lac county; Michael Kirwan, Judge.

A. E. Dunlap was convicted before L. E. Nohl, a justice of the peace of the city of Ripon, for having an unlicensed dog, and procured a writ of certiorari to review such judgment. From the judgment of the circuit court affirming the judgment of the justice, relator appeals. Affirmed.

The appellant having been convicted before one of the justices of the peace of the city of Ripon, under an ordinance enacted in 1898 imposing a penalty upon “every person who shall own or have in his possession in this city any unlicensed dog,” procured to be issued from the circuit court of Fond du Lac county a common-law writ of certiorari to review the validity of such judgment. The justice made return of the proceedings, showing that appellant was arrested upon affidavit dated July 21, 1899, of one Patsy Braun, not alleged to be an official or have any special authority, charging the relator with disobedience of such ordinance, in that, on July 10, 1899, he had in his possession in said city a dog on which no license had been paid for the current year; that, after plea of “not guilty,” by consent the matter was adjourned to July 25, 1899, on which day the plea of “not guilty” was withdrawn, and a motion made to quash the proceedings upon five different grounds, which were argued, and the motion overruled. Thereupon the complaint was permitted to be amended so as to allege that the damage was to the city of Ripon instead of to the affiant, when a recess was taken until 9 a. m., July 26th, leaving appellant in the hands of the officer. July 26th the trial of the case proceeded without a jury, and appellant was convicted, and adjudged to pay a penalty. This return was supplemented by a stipulation bringing in the ordinances of the city of Ripon material to the controversy. That city was incorporated by chapter 72, Priv. & Loc. Laws 1858, and in 1894 adopted the general charter, and became a city of the fourth class thereunder. The grounds upon which the jurisdiction is assailed and further facts material thereto will appear by the opinion. The judgment of the justice was affirmed by the circuit court, and the relator appeals from such affirmance.

Bardeen, J., dissenting in part.

Carter & Pedrick, for appellant.

R. L. Morse, for respondent.

DODGE, J. (after stating the facts).

Appellant's most important contention is that the justice of the peace had no jurisdiction of a suit to enforce a penalty for breach of an ordinance, for the reason that the general charter vests that jurisdiction in police courts; that the clause in the general charter (section 925-61, Rev. St. 1898), which continues the jurisdiction of courts or magistrates existing at the time of its adoption by any city in which there was a court or magistrate having the jurisdiction by the general charter conferred on police courts, has no application, because no such court existed in the city when the general charter was adopted by it. The jurisdiction of police courts, according to that charter (section 925-65, Rev. St. 1898), is: “The civil and criminal jurisdiction of a justice of the peace within the limits of such city and exclusive jurisdiction of offenses against the ordinances of the city.” The justices of the peace existing under the old charter in the city of Ripon were exercising jurisdiction under ordinance No. 4, adopted May 11, 1858, which provided: “The justices of the peace within said city shall have cognizance and jurisdiction of all offenses against the ordinances of said city, and shall have power to give judgment and issue executions thereon for any and all penalties and for forfeitures under the same.” That the jurisdiction thus attempted to be conferred upon these justices was the substantial equivalent of that conferred by the general charter upon police justices is not seriously questioned, but it is asserted that such ordinance was wholly ineffectual--First, for the reason that no power to enact it was sought to be conferred upon the city of Ripon by its charter; and, secondly, because it would have been incompetent for the legislature to delegate that power had such delegation been attempted. The original charter of the city of Ripon (chapter 72, Priv. & Loc. Laws 1858) by section 1 of chapter 2 defined the officers of the city, amongst others one justice of the peace for each ward, and provided: “They shall have such powers and perform such duties as are prescribed in this act, or as may be prescribed in any ordinance of said city, not inconsistent with said act, or which may not be incompatible with the nature of their respective offices;” and by section 3, c. 4, conferred upon the council the power to make and amend “all such ordinances, rules and by-laws for the government and good order of the city, for the suppression of vice and immorality, for the prevention of crime, and for the benefit of trade, commerce and health, as they shall deem expedient; declaring and imposing penalties, and to enforce the same against any person or persons who may violate any of the provisions of such ordinance, rule or by-law, and such ordinances, rules and by-laws are hereby declared to be and have the force of law.” There is no further charter provision in any wise granting or restricting powers of justices of the peace, except that they, in connection with certain other city officers, are constituted peace officers, with power and duty to suppress rioting and disturbances. Section 9, c. 3.

We are unable to avoid the conviction that, if the legislature were competent so to do, it did by these provisions confer upon the common council power by ordinance to vest in its justices of the peace authority to entertain suits for breaches of ordinances and recovery of penalties thereby imposed. While it might well be questioned whether the general power to enact ordinances for the welfare of the city was intended to extend to this subject, the provisions of section 1, c. 2, seem to put that purpose beyond question. The language of that section is entirely sufficient literally to justify the council in imposing on the justices of the peace the power and duty of such enforcement, and, if that was not the purpose, there is vested nowhere, expressly, the power to give judicial aid to the enforcement of such ordinances as might be necessary.

But it is contended that this is such delegation of the legislative power, vested by the constitution in the state legislature, as to be invalid. From the earliest times it has been held that the doctrine that the state legislature may not delegate the legislative power conferred upon it by the constitution is subject to the limitation that, in creating subordinate political divisions of the state, it may delegate to the governments of those subdivisions power to legislate over minor and detail subjects for local government. It is only by reason of that limitation that school district boards, town boards, county boards, and city councils exercise any discretion or deliberation in their respective provinces. From the constitutional authority to organize and create municipal corporations is implied the power to delegate to them enough of the legislative power to regulate such minor and local subjects as are necessary to the efficacy; indeed, to the very purpose of those corporations. See Horr & B. Mun. Ord. c. 1; Dill. Mun. Corp. (4th Ed.) §§ 21, 58, 308. Under this implied authority to the legislature to delegate and confer legislative powers, there are, of course, various limitations. The acts of such subordinate legislatures can have no validity if they conflict with any of the higher forms of law, such as the federal or state constitution, or general laws unavoidably inconsistent therewith, and it is also requisite that they should be confined to the field germane to that purpose which serves to justify the delegation at all. They must pertain to local subjects,--those which affect the particular community placed under corporate government,--as distinct from the people of the state at large. They are well defined as rules “obligatory over a particular district, not being at variance with the general laws, and being reasonably adapted to the purposes of the corporation.” Dill. Mun. Corp. (4th Ed.) p. 387, note. Within this field, however, it is difficult to define in advance any limit upon the power of the legislature to refer questions of local control and government to the corporations it may create. In this view it is not easy to discover any reason why, in an ordinance imposing a duty, a provision for the method of enforcement of that ordinance is not quite as local and corporate in its character as its other provisions. In the older corporations of the country, the custom in enacting ordinances was to provide in the individual ordinance a method of enforcement, and a designation of the officer or officers upon whom the duty and power of enforcement was conferred. There is no difference in principle between a general ordinance making provision with reference to enforcement of all and such a provision in each. Thus, an ordinance prohibiting estray horses upon the public streets may either contain in itself a provision that the constable shall have the duty and authority to take up and impound such estrays, or that duty and authority may be imposed upon him by an independent ordinance, relating generally to all prohibited estrays upon the streets. So an ordinance denouncing a penalty, and providing that that penalty may be recovered by suit before a justice of the peace, is not different in principle from a general ordinance that all penalties may be so recovered. No case has been presented to us passing upon the direct question whether the legislature might or might not delegate to municipalities the power to impose upon their local courts...