Vill. of Wonewoc v. Taubert

• Decision Date: 09 December 1930
• Citation: 203 Wis. 73,233 N.W. 755
• Parties: VILLAGE OF WONEWOC v. TAUBERT.
• Court: Wisconsin Supreme Court

203 Wis. 73

233 N.W. 755

VILLAGE OF WONEWOC

v.TAUBERT.

Supreme Court of Wisconsin.

Dec. 9, 1930.

Appeal from a judgment of the Circuit Court for Juneau County; Emery W. Crosby, Circuit Judge. Reversed.

This action was commenced before H. E. Cary, a justice of the peace in and for the village of Wonewoc, in Juneau county, to recover a forfeiture based on an alleged violation of a village ordinance relating to the parking of automobiles. The case was tried by a jury, which rendered a verdict of guilty. From a judgment imposing a fine or penalty and the costs of prosecution, the defendant appealed to the circuit court. The case was there tried by the court on the record without a jury. From a judgment entered November 21, 1929, reversing the justice of the peace and discharging the defendant, the plaintiff appeals.

On the 6th day of July, 1929, there was in force and effect, in the village of Wonewoc, an ordinance regulating the parking of automobiles on Center street between the north line of Washington street and the south line of Garden street, which ordinance required that within said limits automobiles be parked “crosswise of the center line of said street.” Center street, within the limits mentioned, is the main business street of the village of Wonewoc and is 56 feet wide from curb to curb. On the evening of July 6, 1929, a band concert was being given in the bandstand, which consisted of a movable platform erected in the middle of Center street. At about 8 o'clock the defendant stopped and parked her car on the west side of Center street near to and parallel with the curb in front of a certain store located a short distance from the bandstand. The defendant had no purpose in stopping her car at the particular place except to visit with the other occupants of her car and to listen to the band. About fifteen minutes after stopping her car at the curb she was asked by a special officer if she did not know that it was against the ordinance of the village to park along the side of the street in the way she was parked. The defendant admitted that she did know. The officer then asked her to find a different parking place or to get off the street. The defendant then said to the officer, “Why don't you tell the marshal?” The officer then told the defendant that he was a special police and had as much authority as the marshal. The defendant then dared the officer to touch her steering wheel, and said, “You may run the men of this town but you can't run me,” whereupon the officer gave the defendant five minutes in which to remove her car from the prohibited parking place. The defendant, however, refused and failed to remove her car within the time limited, but shortly thereafter did remove her car after having parked it at the prohibited place for about twenty-five to thirty minutes. Prosecution against the defendant was thereafter commenced, which resulted in her conviction. She appealed to the circuit court for Juneau county, where the action was heard on the record. The circuit court held that the ordinance under which she was prosecuted was unreasonable and void for the following reasons: Because it does not define “parking”; because it discriminates against automobiles, in that it does not apply to other vehicles; because it does not recognize the right of travelers to stop at the curb for a lawful purpose for any time whatever; because it does not permit automobiles to stop at the curb for any lawful purpose or for any reasonable time; and because the stopping of the car at the place mentioned did not in fact obstruct travel. As a consequence of such holding, the circuit court rendered judgment discharging the defendant and awarding her judgment for the costs of the action. From such judgment discharging the defendant, the plaintiff appeals.

J. T. Dithmar, of Elroy, for appellant.

James A. Stone, of Reedsburg (Grady, Farnsworth & Walker, of Portage, of counsel), for respondent.

NELSON, J.

No question is raised as to the verdict being fully supported by the evidence if the ordinance under which she was prosecuted was a valid ordinance.

The defendant contends here, as she did before the circuit court, that said ordinance is void (1) because the village of Wonewoc had no authority to enact it; (2) because the ordinance is indefinite and uncertain because it does not define “parking”; (3) because the ordinance is discriminatory; and (4) because it is unreasonable.

The plaintiff, on the other hand, contends that the village board had authority to enact this ordinance, and that it is a valid ordinance.

So much of the ordinance as requires consideration is as follows: “(1) The parking of any automobile on Center street between the north line of Washington street and the south line of Garden street, except cross-wise of the center line of Center street, is hereby forbidden and prohibited.”

The defendant's first contention, that said ordinance is void because the village of Wonewoc had no authority to enact any parking ordinance, we deem without merit. The village of Wonewoc was authorized by Statute (section 61.34, subsec. 12)--

“(12) * * * To prevent the incumbering of streets, sidewalks, crosswalks and alleys with carriages, carts, wagons, sleighs, sleds, buggies, railroad cars, engines, boxes, lumber, firewood or other substances or materials. * * *

(27) To ordain and establish all such ordinances and by-laws for the government and good order of the village. * * *

(28) To prescribe penalties for the violation of any ordinance or by-law, to be not less than one dollar nor more than two hundred dollars in any case, besides the cost of suit in all cases; and in default of payment to provide for the committing of the person convicted to the watch house or place of confinement in the village or to the county jail until payment be made, but not to exceed ninety days in all.”

[1][2] While there was no express authority conferred upon villages to enact an ordinance such as the one under consideration, the right to enact such an ordinance may be implied from the authority conferred by the above-quoted statutes. The parking...