State v. Hamley

• Decision Date: 05 January 1909
• Citation: 119 N.W. 114,137 Wis. 458
• Parties: STATE v. HAMLEY.
• Court: Wisconsin Supreme Court

137 Wis. 458

119 N.W. 114

STATE

v.HAMLEY.

Supreme Court of Wisconsin.

Jan. 5, 1909.

Appeal from Circuit Court, Green Lake County; Chester A. Fowler, Judge.

Civil action by the State of Wisconsin against A. E. Hamley to recover a fine. From a judgment entered on dismissal of the action, plaintiff appeals. Affirmed.

This is a civil action commenced in the circuit court for Green Lake county for the recovery of a fine imposed by section 8, c. 305, p. 470, Laws 1905, relating to the use of automobiles in public highways. Sections 4 and 8 of this chapter read as follows:

“Sec. 4. Every person operating an automobile or other similar motor vehicle upon or along any of the public highways of this state shall upon a signal by putting up the hand, or other sign of distress, by a person riding or driving a horse or horses, which shall appear frightened, cause such automobile or other similar motor vehicle to stop all motor power and remain stationary, unless a movement forward shall be deemed necessary to avoid accident or injury, until such horse or horses appear to be under control; and shall if requested, assist such person or persons to pass such automobile or other similar motor vehicle in safety, it being the intent of this act that every reasonable precaution shall be exercised by the operator of any such automobile or other similar motor vehicle to prevent the frightening of such horse or horses and to prevent accident or injury. All motor power shall be stopped on any automobile or other similar motor vehicle while left unattended on the public highway.”

“Sec. 8. Any person or persons who shall violate the provisions of section 1, 3, 5 and 6 of this act, except as provided in section 7, shall be punished by a fine of not less than ten dollars and not more than twenty-five dollars; any person or persons who shall violate the provisions of section 4 hereof shall be punished by a fine of not less than ten dollars nor more than fifty dollars.”

When the action came on for trial, the defendant objected to any evidence under the complaint on the ground that it did not state facts sufficient to constitute a cause of action, for the reason that a civil action for the recovery of the fine provided in section 8 would not lie; the proper action being a criminal prosecution. The court sustained the objection, and ordered the action dismissed. Judgment was entered accordingly, from which this appeal was taken.W. E. Cavanaugh, Dist. Atty., and F. L. Gilbert, Atty. Gen., for the State.

L. E. & Roy Reed, for respondent.

KERWIN, J. (after stating the facts as above).

The question presented is whether a civil action for the recovery of a forfeiture can be maintained, or whether the action should have been criminal. The authority to maintain a civil action for the recovery of the fine imposed must be found, if at all, in section 3294, St. 1898, which reads: “In all cases, not otherwise specially provided for by law, where a forfeiture shall be incurred by any person and the act or omission for which the same is imposed shall not also be a misdemeanor, such forfeiture may be sued for and recovered in a civil action. When such act or omission is punishable by fine and imprisonment, or by fine or imprisonment, or is specially...