State ex rel. Keefe v. Schmiege
| Decision Date | 12 June 1947 |
| Citation | 28 N.W.2d 345,251 Wis. 79 |
| Parties | STATE ex rel. KEEFE v. SCHMIEGE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order and judgment of the Circuit Court for Winnebago County; Henry P. Hughes, Judge.
Proceeding by the state on the relation of Rudyard T. Keefe, district attorney, against Honorable Oscar J. Schmiege, Judge, etc., for a writ of prohibition to prevent enforcement of an order of the Municipal Court directing a jury trial in an action begun by the County of Winnebago against Franklin D. McDonald on a charge that defendant was violating the county ordinance prohibiting driving of an automobile while intoxicated. From a judgment denying the petition, the relator appeals.-[Editorial staff.]
Reversed with directions. Arlo McKinnon, Sp. prosecutor, of Milwaukee, for appellant.
Reilly & Cosgrove, of Fond du Lac, for respondent.
John E. Martin, Atty. Gen., and William A. Platz, Asst. Atty. Gen., amicus curiae.
On April 6, 1946, action was begun by the county of Winnebago against Franklin D. McDonald. The district attorney charged the defendant with violation of a county ordinance prohibiting the driving of an automobile while intoxicated instead of prosecuting him under the statutes (sec. 85.13 and sec. 85.91(3)). Upon demand of the defendant, the municipal court ordered a jury trial. Because the ordinance made no provision for a jury trial, the district attorney petitioned the circuit court for a writ of prohibition to prevent the enforcement of the municipal court's order in that respect. From an order and judgment of the circuit court, entered July 5, 1946, denying the petition of the district attorney, the county appeals.
When the matter was first presented here, the point raised by the county was that because this is a prosecution for the violation of an ordinance and because there was no provision or requirement in the ordinance itself for a jury trial, the proceedings must be summary and therefore the circuit court was in error in denying the petition of the district attorney.
The ordinance in question provided as follows:
That ordinance was passed in November, 1941, and was therefore controlled by sec. 85.84 and sec. 59.07(11), Stats., 1941, which contain the following pertinent provisions:
Sec. 85.84 Stats., 1941: ‘No local authority shall have power to enact, pass, enforce or maintain any ordinance, resolution, rule or regulation requiring local registration or other requirements, inconsistent with the provisions of this chapter, or in any manner excluding or prohibiting any motor vehicle, trailer, or semi trailer, whose owner has complied with the provisions of this chapter, from the free use of all highways except as provided by section 66.45; but the provisions of this section * * * shall not prohibit any local authority from passing any ordinance, resolution, rule or regulation in strict conformity with the provisions of this chapter and imposing the same penalty for a violation of any of its provisions except the suspension or revocation of motor vehicle operators' licenses.’
Sec. 59.07(11), Stats., 1941: ‘The county board of each county is empowered at any legal meeting to * * * Enact ordinances or by-laws regulating traffic of all kinds on any highway, except street or interurban railways, in the county which is maintained at the expense of the county and state, or either thereof; declare and impose forfeitures, and enforce the same against any person for any violation of such ordinances or by-laws; provide fully the manner in which forfeiture shall be collected; and provide for the policing of such highways and to provide for what purposes all forfeitures collected shall be used.’
After briefs were submitted a question arose as to the power of the county to declare an act a misdemeanor and as to the validity of the ordinance under which the prosecution was undertaken. Certain questions for discussion were presented to the parties and requests were made for briefs from any one interested in the questions raised. Those briefs were filed in this court by May 26, 1947. The questions raised were as follows: First, sec. 85.84 purports to confer upon the county board the power by ordinance to (a) declare an act a misdemeanor (b) impose a penalty of fine, fine and imprisonment, or imprisonment. May the legislature lawfully confer such power upon a county board? Second, since the county board, under the amendment of 1943, must enact an ordinance in strict conformity with the provisions of the chapter, including those relating to penalty, may the county board omit imprisonment from the penalty provision of the ordinance? If it may not, can this court treat provisions in the ordinance for punishment by imprisonment as separable from the balance of the ordinance?
At the time these briefs were considered sec. 62.23(7)(f) and sec. 66.05(10)(m) came to our attention. While they are not directly involved here, they do use the term ‘misdemeanor’ with relation to ordinances. We have had them in mind as we considered the issues here presented by both sets of briefs. We have reached the conclusion that the legislature does not have the authority to confer upon a county board the power to enact by ordinance a rule determining that a violation of a local ordinance shall be a misdemeanor. Since the county board had no power to enact a rule declaring drunken driving to be a misdemeanor, that feature of this ordinance, being inseparable from the rest, makes the ordinance invalid.
At the time the ordinance in question was passed, Winnebago county clearly had authority under sec. 59.07(11) to enact ordinances regulating local traffic and punishable by a forfeiture. It is claimed that sec. 85.84 Stats., 1941, gave the county power to term the violation a misdemeanor and to provide for punishment by imprisonment inasmuch as it provided that no local authority was prohibited from passing an ordinance in strict conformity with and imposing the same penalties as the state motor vehicle law. Since sec. 85.91(3), in setting forth the state law pertaining to penalties for drunken driving, provided that a violation of the act would be a misdemeanor and punishable by fine,...
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