State v. Coubal
| Decision Date | 11 January 1946 |
| Citation | 248 Wis. 247,21 N.W.2d 381 |
| Parties | STATE v. COUBAL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the County Court of Chippewa County; Orrin H. Larrabee, Judge.
Reversed.This was a proceeding instituted on the petition of the state of Wisconsin filed in the county court of Chippewa county on August 1, 1945, under the provisions of sec. 176.90, Wis.Stats., created by ch. 374, Laws of 1945, and commonly known as ‘The Thomson Law.’
It is alleged in the petition that on the 30th day of June, 1945, a license was duly issued by the town of Bloomer, Chippewa county, to the respondent Frank Coubal, licensing him to sell at retail fermented malt beverages pursuant to sec. 66.05, Wis.Stats., and to sell at retail intoxicating liquors pursuant to the provisions of ch. 176, Wis.Stats., on certain described premises. It is further alleged that pursuant to the authorization granted by said license to respondent and on the 19th day of July, 1945, said respondent was engaged in the business of operating a tavern on the premises described, known as the Gateway Inn. It is further alleged that on said 19th day of July, 1945, respondent knowingly suffered and permitted two slot machines and six other and different devices, commonly known as ‘punch boards,’ designed for gambling, to be set up, kept, managed, and used upon said described premises, contrary to the provisions of sec. 2 of ch. 374, Laws of 1945.
Petitioner prayed that the court enter an order (a) revoking the license hereinbefore mentioned; (b) restraining and enjoining the defendant from thereafter knowingly suffering or permitting any slot machine, roulette wheel, other similar gambling device or number jar or other device designed for like form of gambling to be set up, kept, managed, or used upon premises directly or indirectly controlled by him, the said Frank Coubal.
On August 1, 1945, the court entered an order that said petition be heard on the 28th day of August, 1945, and that notice of said hearing together with a copy of said petition be served upon the defendant in the manner provided by ch. 374, Laws of 1945, not less than twenty days prior to said date of hearing. By written stipulation signed by the district attorney and defendant, the hearing was adjourned to September 5, and was further adjourned to September 22, 1945. The defendant demurred to the petition and moved to quash on several grounds, to which reference will be made in the opinion; also moved that the evidence obtained by the officers be suppressed and excluded on several grounds.
The court, treating the defendant's motion to quash as a demurrer, sustained it and dismissed the proceeding upon the ground that ch. 374, Laws of 1945, is unconstitutional for the following reasons: (1) The due process clause is violated as to taking of defendant's property right to answer the petition as he chooses; (2) there is an illegal withholding from constitutional officers of essential prerogatives of their offices; and (3) the law is too vague and uncertain.
From an order entered September 22, 1945, dismissing the petition, the state of Wisconsin appeals.
John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., and Ronald F. North, District Atty., of Chippewa Falls, for appellant.
Stafford & Stafford, of Chippewa Falls (Henry J. Connor, of Chippewa Falls, of counsel), for respondent.
This is a special proceeding instituted on the petition of the state of Wisconsin under ch. 374, Laws of 1945. That Act, by sec. (1) thereof, created sec. 14.426 of the statutes, which relates to gambling law enforcement. Sec. (2) thereof created sec. 176.90, Stats., which relates to revocation of license and injunction against gambling devices. Sec. 176.90(1) provides:
It should be noted that the county court of Chippewa county has circuit court jurisdiction with respect to special proceedings.
Sec. 176.90(2) provides:
Sec. 176.90(3) provides as to the procedure. It further provides:
Violations of injunctional orders shall be punishable by the court as criminal contempts in accordance with the provisions of ch. 256, Wis.Stats., and appeals may be taken from orders issued by the circuit court as in the case of special proceedings.
The foregoing suffices for a consideration of the grounds on which the trial court found ch. 374, Laws of 1945, to be unconstitutional. The first reason assigned by the court is that the due process clause is violated as to taking of defendant's property right to answer the petition as he chooses. In this connection, referring to that part of subsec. (3) of sec. 176.90 which provides, ‘The allegations of the petition shall be deemed controverted and shall be at issue without further pleading by the defendant,’ the court said: ‘Defendant contends that this provision does not give him any choice to either demur, or otherwise answer the petition which the law forcibly denies for him, even though it may be against his will to deny its allegations; that by such denial of the right to plead in accordance with the dictates of his own will, he may be seriously mulcted with costs which he might otherwise have avoided by entry of an answer admitting the allegations of the petition.’
Apparently the court was of the view that the law denies to the person proceeded against the right to admit the allegations of the petition, also the right to object to the jurisdiction of the court and to challenge the sufficiency of the allegations of the petition. These are not very persuasive reasons for holding the law unconstitutional. The fact that the law provides that the allegations of the petition shall be deemed controverted and shall be at issue without further pleading by the defendant certainly does not deprive the defendant, either before trial or at the trial, of the right to admit the allegations of the petition; nor does it deprive him of the right to object to the jurisdiction of the court or the right to move to quash the petition as defendant did in the instant case which the trial court treated as a demurrer to the petition. The defendant's supposed right to admit the allegations of the petition by answer is based upon the theory that by so doing he may avoid the payment of costs which would otherwise be taxed against him. This is a special proceeding; costs are discretionary with the court. Sec. 271.02, Stats. The court may deny costs, including disbursements. Doherty v. Rice, 240 Wis. 389, 3 N.W.2d 734.
The Fourteenth...
To continue reading
Request your trial
-
State ex rel. Strykowski v. Wilkie
...fourteenth amendment does not give litigants a property right in any particular form of pleading or procedure. See: State v. Coubal, 248 Wis. 247, 255, 21 N.W.2d 381 (1945). This court recently held that the defendants in two mortgage foreclosure actions were not denied due process by the f......
-
State v. Karpinski
...not entitled to know in advance exactly what the consequences of his act shall be by any requirement of due process. State v. Coubal (1946), 248 Wis. 247, 21 N.W.2d 381; nor does equal protection of the laws require that all violators, or none, must be prosecuted both civilly and criminally......
-
State ex rel. Unnamed Petitioners v. Connors, 86-0290-W
...is not if that direction results in a substantial encroachment upon the separate powers of the executive branch. State v. Coubal, 248 Wis. 247, 21 N.W.2d 381 (1946), is also relied upon by the state for the proposition that the district attorney is required to prosecute cases as directed by......
-
David Jeffrey Co. v. City of Milwaukee
...to an act a construction that will avoid constitutional objections to its validity if it will bear such construction. State v. Coubal, 1946, 248 Wis. 247, 21 N.W.2d 381. The constitutionality of slum clearance laws has been almost uniformly upheld by courts of last resort in many states. Le......