A preliminary question of procedure is presented. The city appealed from the judgment of the municipal court. The defendant contends that the action is quasi-criminal in its nature and that therefore it must be brought to this court by writ of error and not by аppeal. This contention finds support in some of the earlier cases in this court. These cases hold that, where a city by ordinance prohibits that which is a crime or misdemeanor and punishable as such at common law or by statute, the аction to recover the fine or penalty imposed by the ordinance is quasi-criminal in its nature and that it can be brought to this court only by writ of error. - Boscobel v. Bugbee,
In the cases just cited the nature of a proceeding to collect a fine or forfeiture under a municipal ordinance was determined entirely by the question whether the act prohibited by ordinance could also be punished as a crime or a misdemeanor in a criminal proceeding which was wholly outside of and entirely independent of and separate from the proceeding under the ordinance. Under the rule adopted in these earlier cases, when the act which violated the city ordinance was not punishable either under the common law
It is difficult to understand how the nature of the action under the ordinance can be made to depend wholly on the fact that the act complained of can be made the basis of a criminal'action. The nature of the action under the'ordinance should be determined by the proceeding itself, not by the fact that the offender may be subject to punishment in some other proceeding or in some other court because of the act which is alleged to be in violation of the ordinance.
In all prosecutions under city ordinances the object of the proceeding is the same, — to collect the penalty or forfeiture whiсh has been imposed by the ordinance. ' The nature of the relief sought, and not the possibility that some other proceeding may be brought which is based upon the same act or omission, should be the test by which to determine whether the proceeding under the ordinance is civil or quasi-criminal in its nature.
The fact that the proceeding under the ordinance may be begun by a warrant and a complaint under oath does "not make the proceeding criminal in its nature. Under the charter of the city of Milwaukee and undеr established rules of law “The prosecution were at liberty to proceed by summons without oath, or by warrant with oath. But the mere form in which the suit is commenced cannot change the nature of the offense.” Oshkosh v. Schwarts,
The fact that the ordinance provides that the offense “shall be punished by a fine” does not necessarily lead to the conclusion that the offense is criminаl or owcm-criminal in
The later cases criticise the earlier decisions which hold that a proceeding under a city ordinance is a quasi-cvimmal prosecution in all cases where the same act is punishable as a crime or a misdemeanor. In Ogden v. Madison,
The court is satisfied that a distinction which is based upon such technical and illogical grounds ought no longer to be given judicial sanction. The court therefore adopts the rule that all proceedings to collect penalties under municipal ordinances shall be treatеd as civil actions which may be
Rules of practice and procedure which are not essential to protect property rights or the substantial rights of litigants must give way to rules which will not impede the progress of justice. Courts must ever regard substance and not be controlled by mere matters of form when passing upon rules of practice and proсedure. Those rules must be given judicial sanction which promote the speedy determination of the rights of the parties, provided always that the rules that are approved by the court are such as will protect the substantial rights of persons and of property. The rule upon which the defendant relies is based upon a purely technical distinction which does not exist in fact. Its only effect is to hinder and delay the courts in the administration of justice. It is no longer entitled to judicial sanction.
Sec. 288.01 of the Statutes does not apply to this case. The word “fine” as used in this section does not include penalties imposed for the-violation of municipal ordinances. Ogden v. Madison,
Counsel for the city concedes that Milwaukee had no power to pass an ordinance prohibiting gambling which imposed imprisonment as a penalty for the violation of the ordinance. For the purpose of this áppeal the court will assume, without deciding that question, that no such power was possessed by the city of Milwaukee. But very clearly the court had the power as a means of enforcing the payment of the fine or forfeiture imposed to direct that the defendant be imprisoned until payment is made, but not to exceed a fixed maximum period of time. This imprisonment is in the nature of an execution agаinst the body of the offender rather than the imposition of imprisonment as a punishment for the violation of the ordinance.
An examination of the ordinance satisfies the court that the insertion of the provision imposing imprisonment as a pеnalty for a violation of the ordinance did not invalidate the entire ordinance. This provision is distinct and severable from the rest of the ordinance. If it is eliminated the rest of the ordinance presents a complete and consistent plan for the suppression of gambling in the city of Milwaukee. The provision for punishment by imprisonment was very clearly not the inducement that led the common council to pass the ordinance. We cannot think that the matter of imprisonment was deemed sо important by. the common council that it would not have passed the ordinance if this provision had not been included therein. It follows that the court cannot hold the entire ordinance invalid. Brittingham & Hixon L. Co. v. Sparta,
An examination of the machine which is an exhibit in the case and an observation of its operation leaves no doubt in the mind of the court that it is a device which comes
The machine is undoubtedly a perfection of invention which attempts to conceal its true purpose. But the fact remains that it attractively ministers to the gambling instinct the same as any other slot machine. If this were not true it would not еntice the player. If the machine in each case returned five cents to the player either in cash or in checks good for merchandise and gave the player no opportunity to secure something for nothing, no one would рlay the machine and the makers of the machine would never have gone tó the expense of perfecting and manufacturing this complicated and costly mechanism.
The machine makes an appeal to the gambling instinct becаuse the player has constantly before him the chance that
Without exception, so far as the court has been able to ascertain, every jurisdiction which has had oсcasion to pass upon the question has held that slot machines which are operated in the same manner as the one here in question are gambling devices whose operation is contrary to law. Sheets v. State,
We fully concur in the reasons advanced in these cases for holding that such machines are gambling devices. The principles of law • applicable in determining whether a slot machine is a gambling device are the same whether the use of a machine is prohibited by statute or by municipal ordinance.
By the Court. — The judgment of the municipal court is reversed, and the cause remanded with directions to affirm the judgment of the district court.