State v. City & Cnty. of Milwaukee
| Decision Date | 17 November 1914 |
| Parties | STATE v. CITY AND COUNTY OF MILWAUKEE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.
Action by the State of Wisconsin against the City and County of Milwaukee. From a judgment for the state against the city for part of the amount claimed and dismissing the action against the county, both the state and the city appeal. Judgment against the city modified and affirmed, and judgment dismissing the action against the county reversed and remanded.
Action to recover from the city and county of Milwaukee the clear proceeds of all fines and penalties collected by the city for the years 1898 to 1908, inclusive. The case has been here twice before and will be found reported in 145 Wis. 131, 129 N. W. 1101, Ann. Cas. 1912A, 1212, and in 152 Wis. 228, 138 N. W. 1006.
The court found as facts:
“(1) That this action was commenced and is prosecuted at the request and under the direction of the governor of the state of Wisconsin.
(2) That the defendant, city of Milwaukee, received into its treasury, as the clear proceeds of fines imposed and collected within the county of Milwaukee by the courts having criminal jurisdiction in said county of Milwaukee and for violations of the penal laws of this state, the sums of money and within the respective years, as follows, to wit:
+-----------------------------+
¦1898 ¦$ 3,746 00¦
+------------------+----------¦
¦1899 ¦4,062 00 ¦
+------------------+----------¦
¦1900 ¦3,761 00 ¦
+------------------+----------¦
¦1901 ¦5,953 00 ¦
+------------------+----------¦
¦1902 ¦7,342 00 ¦
+------------------+----------¦
¦1903 ¦9,049 00 ¦
+------------------+----------¦
¦1904 ¦8,095 00 ¦
+------------------+----------¦
¦1905 ¦12,124 00 ¦
+------------------+----------¦
¦1906 ¦16,278 00 ¦
+------------------+----------¦
¦1907 ¦11,286 00 ¦
+------------------+----------¦
¦1908 ¦13,758 00 ¦
+------------------+----------¦
¦Making a total of ¦$95,454 00¦
+-----------------------------+
(3) That said sums were actually received by said defendant, city of Milwaukee, and used by it at or about the time of the receipt of said respective sums in carrying out and performing the legitimate municipal functions and purposes of said city, to wit, in and about the payment of the expenses for the maintenance and carrying on of the courts having criminal jurisdiction within said county of Milwaukee.
(4) That said defendant, city of Milwaukee, failed and neglected to pay said sums, or any part thereof, to the said plaintiff, or to any one for its use or on its behalf.
(5) That none of said sums or any parts thereof were paid over by the said city of Milwaukee to the defendant, county of Milwaukee.
(6) That the third amended complaint, being the one upon which said cause was brought to trial, was served upon the defendant, city of Milwaukee, on January 11, 1912.”
As conclusions of law the court found:
“(1) That recovery for the fines collected and received for the year 1898, amounting to $3,746, is barred by the statute of limitations, and the plaintiff is not entitled to recover for the same.
(2) That the plaintiff is entitled to have and recover of the defendant, the city of Milwaukee, the sum of $91,708.
(3) That the plaintiff is entitled to interest on the sum specified in the preceding conclusion of law at the rate of 6 per cent. per annum from and after January 11, 1912, to the time of the entry of judgment herein.
(4) That the action should be dismissed as to the defendant, county of Milwaukee.
(5) That the plaintiff is entitled to its taxable costs and disbursements against the defendant, city of Milwaukee.”
From a judgment entered accordingly the city of Milwaukee appealed. The state also appealed from that part of the judgment refusing to allow a recovery for the fines collected in 1898, and from the part adjudging that the plaintiff is entitled to recover interest only from January 11, 1912.H. C. Owen, Atty. Gen., Walter Drew, Deputy Atty. Gen., and Byron H. Stebbins, Asst. Atty. Gen., for the State.
Daniel W. Hoan, City Atty., Charles W. Babcock, Asst. City Atty., Edward J. Yockey, Dist. Atty., and Lyman G. Wheeler, Sp. Asst. Dist. Atty., all of Milwaukee, for respondent.
VINJE, J. (after stating the facts as above).
The city upon its appeal makes two main contentions: First, that the case was improperly dismissed as to the county; and, second, that it was error to recover from the city the full amount of fines collected, since the county was entitled to a collection fee of 2 per cent.
[1] 1. The circuit court found that the fines collected by the city had been used by it in defraying the expenses of courts having criminal jurisdiction within the county of Milwaukee. Such courts were the municipal and district courts for said county. The municipal court was created by chapter 199, Priv. & Loc. Laws of 1859. It provides:
“There shall be established in the city and county of Milwaukee a municipal court, for the transaction of all business that may lawfully come before it; and for that purpose the city and county of Milwaukee is hereby constituted a municipality.”
Originally the court had jurisdiction of all cases of crimes and misdemeanors arising within Milwaukee county “except such as may be punishable with death or in the state prison for life.” The court as thus established with jurisdiction extended to all criminal cases has since been continued. See chapter 489, P. & L. Laws of 1871, chapter 43, Laws of 1865, chapter 256, Laws of 1879, and chapter 7, Laws of 1895. The district court was created by chapter 218, Laws of 1899, and was given jurisdiction of all minor criminal cases arising within Milwaukee county. Both courts have the same territorial jurisdiction, the same clerk, and the money collected from fines and penalties imposed by either court is held by the treasurer of the city of Milwaukee in a fund called the municipal and district court fund. It was out of this fund that the proceeds of all fines and penalties sought to be recovered were paid for defraying the expenses of the two courts.
The statutory provisions for the payment of the expenses of the municipal court are these: The salary of the judge, clerk, and deputies shall be “all payable monthly, at the end of each and every month by the city of Milwaukee.” Section 2513, R. S. 1878, section 8, c. 7, Laws of 1895; Hirschberg's Milwaukee County Laws, § 1165. Section 2506, R. S. 1878, section 4, c. 7, Laws of 1895, requires the clerk of the court, under the direction of the common council of the city of Milwaukee to “procure and furnish all necessary blanks, stationery, book and paper cases, desks, record books, office furniture, lights and fuel, for the use of said court and its clerks, at the expense of said city.” Likewise a seal for the court was required to be procured at the expense of the city. Chapter 256, Laws of 1879; chapter 7, Laws of 1895. Similar statutory provisions are made with reference to paying the expenses of the district court. See section 16, c. 218, Laws of 1899; Hirschberg's Milwaukee County Laws, § 1354; section 9, c. 218, Laws of 1899; Hirschberg's Milwaukee County Laws, § 1347. By section 2512, R. S. 1878, Hirschberg's Milwaukee County Laws, § 1171, it was made the duty of Milwaukee county, annually, at the time the city was required to pay over county and state taxes, to pay the city of Milwaukee one-half of the salaries of the judge, clerk, and deputy clerks of the municipal court, and one-half the expenses of the blanks, stationery, book and paper cases, desks, record books, office furniture, lights, and fuel used for said court and its clerks, and the other expenses of said court which have been paid for by said city. A similar statutory provision is made with reference to the county reimbursing the city for one-half the expenses of the district court. Section 14, c. 218, Laws of 1899; Hirschberg's Milwaukee County Laws, § 1352.
It will thus be seen that when the city paid out the proceeds of the fines collected for defraying the expenses of the two courts, it was only complying with a duty imposed upon it by statute. Upon the first appeal of this case (145 Wis. 131, 129 N. W. 1101, Ann. Cas. 1912A, 1212), it was ruled that the city could be held liable only in the event and to the extent that it had used the proceeds of the fines and penalties turned over to the city treasurer for legitimate municipal expenses. That the cost of maintenance of the two courts in question is legitimate municipal expense is evident from the statutory provisions relating thereto. But it is urged on behalf of the city that since the statute cast the duty upon the county to contribute one-half thereof, one-half of the money so paid out by the city should be regarded as paid out for a legitimate county expense, and that the suit was therefore improperly dismissed as to the county. There is much force in this contention, and had the proof showed that the city was in no wise reimbursed by the county for one-half of such expense, the judgment might well have gone equally against the city and the county. The city sought to show such a state of facts, but was prevented by the rulings of the court upon objections made by both the state and the county. After making objections to the city's proof on this branch of the case, the county offered to prove that it had, since 1898 up to the time of the trial, paid large sums toward the support of the district and municipal courts, aggregating more than one-half their expense. To this proof the city made no objection, but the state did, on the ground that it was immaterial and irrelevant and not within the issues. The court sustained the objection of the state on the theory that there was no such issue...
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