39 N.W.2d 772 | Wis. | 1949
Lead Opinion
Action commenced August 20, 1948, by the city of Oshkosh against William Lloyd for violation of a city ordinance. From a judgment in favor of the plaintiff in the municipal court of Oshkosh, defendant appealed to the circuit court for Winnebago county. From a judgment of March 11, 1949, in favor of the plaintiff in that court, defendant appeals.
This is a civil action by the city of Oshkosh against William Lloyd for violation of the city ordinance prohibiting any person under the influence of an intoxicating liquor from operating a motor vehicle on a public highway.
The case was tried in municipal court of the city of Oshkosh and judgment was there rendered against him on August 27th. He appealed to the circuit court. The case was then tried to the court and jury. The jury returned a verdict of "Not guilty." Motions after verdict included that of the plaintiff to set aside the verdict because not supported by evidence. That motion was granted and, on the 11th of March, 1949, judgment against the defendant was entered for $100 plus costs in the amount of $28.68 and providing that, in default of payment thereof, said defendant be committed to the county jail of Winnebago county, Wisconsin, "until said forfeiture and costs be paid, the period of his [defendant's] commitment not to exceed sixty days." Defendant appeals. *603 There is no evidence brought here by appellant. There is no bill of exceptions. Appellant asks this court to pass on the question of whether certain evidence existed without any evidence before it. We hold that this record does not warrant questioning the ruling of the learned trial judge, who said when ruling upon motions after verdict: "The undisputed evidence is to the effect that the defendant [appellant here] was intoxicated on the night on which he was arrested. . . ." Under the circumstances, the court concluded "that the verdict of the jury is an obvious miscarriage of justice, and this being a civil case the court has no alternative but to set aside the verdict."
An action to recover a forfeiture for violation of a municipal ordinance is a civil action and the rules of civil procedure apply. Milwaukee v. Burns (1937),
The appellant complains that because, in addition to the forfeiture, his license to drive may be revoked under sec.
During the argument our attention was called to the case ofDistrict of Columbia v. Colts (1930),
Respondent asks that this court rule that, on appeal to circuit court, a jury trial may not be had in a prosecution for a violation of a city ordinance. It is the general rule that the constitutional right to a trial by jury does not apply to violations of municipal ordinances. Anno., Offenses as to which ajury trial is a constitutional right,
By the Court. — Judgment affirmed.
Dissenting Opinion
The majority cites State exrel. Keefe v. Schmiege (1947),
In Milwaukee v. Johnson, supra, this court pointed out that the earlier cases held (pp. 588, 589):
". . . where a city by ordinance prohibits that which is a crime or misdemeanor and punishable as such at common law or by statute, the action 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 *606
punishable either under the common law or by statute the proceeding under the city ordinance was held to be a civil action. Oshkoshv. Schwartz,
"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. . . .
"In all prosecutions under city ordinances the object of the proceeding is the same, — to collect the penalty or forfeiture which has been imposed by the ordinance."
The court in that case was determining solely the question of whether the case could be reviewed upon appeal rather than upon a writ of error. It went into a long dissertation on the unimportance of procedure and the desirability of avoiding dilatory tactics and concluded this phase of the case with this language (p. 591):
"Rules of practice and procedure which are not essential toprotect property rights or the substantial rights of litigantsmust give way to rules which will not impede the progress ofjustice. Courts must ever regard substance and not be controlled by mere matters of form when passing upon rules of practice and procedure. 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." (Italics supplied.)
The court then went on to direct the municipal court of Milwaukee county to affirm a judgment of the district court convicting the defendant of possession of gambling devices.
The case of Milwaukee v. Stachelski, supra, was a prosecution for violation of a city ordinance prohibiting sale of liquor on premises located in the city without first procuring a license, — conduct purely malum prohibitum.
Kuder v. State, supra, was a prosecution for speeding in violation of a county ordinance. This court held that a *607 county ordinance violation could not be prosecuted in the name of the state as a criminal action, and ordered the proceedings dismissed. It is hardly helpful in considering the present question.
The case of State ex rel. Keefe v. Schmiege, supra, was a special proceeding for a writ of prohibition from the circuit court for Winnebago county to Schmiege, acting judge of the municipal court of Winnebago county, to prevent him from impaneling a jury to try a defendant accused of operating a motor vehicle while under the influence of intoxicating liquor. The trial court refused to grant the district attorney's petition.
This court upon appeal entered its mandate (p. 87):
"The order and judgment are reversed, with directions to grant the petition for a writ."
From this it would appear that the question now before the court had been passed upon and that the trial judge was to be directed to try the matter without a jury.
The opinion of the court indicates, however, that such was not the result (pp. 86, 87):
"For the reasons we have advanced, that portion of the Winnebago county ordinance declaring drunken driving to be a misdemeanor and imposing punishment by fine, imprisonment, or both, is invalid. Whether that portion of the ordinance is severable from the rest so as to permit the enforcement of the rest as a valid regulation, is the next problem to be considered. The ordinance specifically provides for a penalty to be imposed `upon conviction thereof.' Were the excessive and unauthorized punishment provisions for imprisonment all there were to test interpretation, the rule of such cases asMilwaukee v. Johnson,
"We agree with the learned trial judge that before this defendantcould be held to be guilty of a misdemeanor he wouldbe entitled to a jury trial if he desired it. The ordinance is invalid. If there is a prosecution for the commission of a misdemeanor, it will have to be in the name of the state under the statutes of the state." (Italics supplied.)
No writ was ever presented to the circuit court for Winnebago county. Instead, the prosecution under the county ordinance was dismissed, and a new action under the state criminal statute was commenced and tried to a jury.
We therefore approach the question presented upon this appeal as a relatively new one, namely, whether the law depriving bawdyhouse and gambling-house keepers of trial by jury shall be extended to include those charged with drunken driving under municipal ordinances.
Prosecutions under city ordinances were originally held to be quasi-criminal, which I understand to be civil in nature and criminal in procedure. This was a distinction which apparently became difficult to keep in mind, so it has been completely annihilated as the language quoted from the opinion of the court in Milwaukee v. Johnson indicates.
We have reached such inconsistency that in submitting a verdict to the jury of guilty or not guilty the courts may instruct that the jury can find the defendant guilty from the simple preponderance of the evidence rather than from evidence which satisfies it of his guilt "beyond a reasonable doubt," as in criminal procedure.
I am unable to determine exactly what the court has here held. The jury found the defendant not guilty. The trial court held that there was no conflict in the evidence and that the defendant was guilty as a matter of undisputed fact, and *609 adjudged him to be guilty. Upon appeal this conviction by the court notwithstanding the jury verdict is affirmed.
The court refuses to adopt the respondent's proposal that it hold that jury trials are abolished completely in ordinance prosecutions. It apparently holds that the verdicts of juries have only the weight accorded them in civil cases and will be conclusive only when supported by some credible evidence. If that is to be the law respecting enforcement of municipal forfeitures, then I am convinced that the procedure too should be changed to the end that the action will be strictly civil in form and the verdict to be submitted, instead of a finding of guilty or not guilty, be simply "We find for the plaintiff" or "We find for the defendant."
The history of the law of drunken driving is pertinent. Originally, it was made a crime. Thereafter governing bodies of cities adopted ordinances for the primary purpose of garnering fines from convictions into the city treasury rather than permit them to escape into the state treasury.
All of which is relatively unimportant except in so far as it is now proposed as a means of interfering with the individual's right of trial by jury on a charge which is essentially criminal.
There is in my opinion a serious question of whether drunken driving is a proper subject for municipal control at all. However, that question has not been raised and I therefore assume for the purposes of this discussion that it is.
The question for consideration then is whether a prosecution for drunken driving under a city ordinance is a case which entitles the defendant to a jury trial.
Sec. 5, art. I, Const., provides:
"The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury not less than five sixths thereof." *610
In Ogden v. Madison, supra, this court held that one who had been convicted of maintaining a house of ill-fame under a city ordinance, in a trial before the municipal court without a jury, and then upon appeal to the circuit court convicted by a jury, had not had his constitutional rights violated.
The gist of the entire question is made crystal clear by the decision in that case (pp. 429, 430):
"In the language of the supreme court of Colorado, inMcInerney v. Denver,
"`Whatever may be the view concerning the gravity of the offense against a state law, the fact that the legislature authorizes the city to deal with the same subject by ordinance indicates that to the legislative mind the act also properly constitutes one of those petty offenses regarded as local injuries. The public welfare, requiring the maintenance of peace and good order as well as careful sanitary regulations in cities and towns, renders summary proceedings in many cases a necessity. And we are not now prepared to inaugurate the revolution that must follow the announcement of the doctrine that a jury trial is an indispensable requisite.'
"The statute . . . empowers the municipal judge of Dane county to deal with this class of offenders in the manner he did with the plaintiff in error. There is a most respectable line of decisions holding that, even if the law providing for summary proceedings without a jury is invalid, yet if the defendant is entitled on an appeal to a trial by jury, and there be no unreasonable limitation connected with the appeal, the constitutional provisions are satisfied."
It is obvious that the only type of case that does not carry the right of trial by jury was always intended to be that involving a petty offense. Obviously, collection of fine or penalty for violation of city ordinances requiring snow removal from sidewalks, or for riding a bicycle on the sidewalk, or similar innocuous offense, is a matter that can and should be disposed of summarily.
In permitting denial of a jury trial in cases of keeping houses of ill-fame and gambling houses, this court apparently *611 concluded that those were petty offenses. The question of whether the violation of a city ordinance prohibiting driving while under the influence of intoxicating liquor is likewise such a petty offense as to be unworthy of a jury trial has not been passed upon in Wisconsin.
There is a division in the authorities outside of Wisconsin, some having held that drunken driving is of such a petty nature that it may be disposed of summarily.
I am satisfied that the reasoning in the case of District ofColumbia v. Colts (1930),
The United States supreme court, affirming the court of appeals, said (p. 71):
"With that conclusion we agree.
"The acts of congress passed for the government of the district provide that prosecutions in the police court shall be on information; that where the accused would be entitled to a jury trial under the constitution, trial shall be by jury unless waived; and that in cases where the accused would not by force of the constitution be entitled to a trial by jury, trial shall be by the court without a jury, unless, in cases where the fine or penalty may be more than $300 or imprisonment more than ninety days, the accused shall demand a trial by jury, in which case the trial shall be by jury."
The fine for the first offense with which Colts was charged was not less than $25 nor more than $100, or imprisonment *612 for not less than ten days nor more than thirty days. The court said (pp. 72, 73):
"It will be seen that the respondent is not charged merely with the comparatively slight offense of exceeding the twenty-two mile limit of speed . . . or merely with driving recklessly . . . but with the grave offense of having driven at the forbidden rate of speed and recklessly `so as to endanger property and individuals.'
". . . That there may be many offenses called `petty offenses' which do not rise to the degree of crimes within the meaning of article III, and in respect of which congress may dispense with a jury trial, is settled. (Citing cases.)
"Whether a given offense is to be classed as a crime so as to require a jury trial, or as a petty offense, triable summarily without a jury, depends primarily upon the nature of the offense. The offense here charged is not merely malum prohibitum, but in its very nature is malum in se."
If the congress or a state legislature, because of the seriousness of the offense, cannot declare it to be a petty offense and thus deprive one accused of a trial by jury, it would seem obvious that the legislature cannot accomplish that result indirectly by declaring it to be a subject for civil control by municipal ordinances.
There is nothing local about drunken driving and very little reason for ordinances duplicating the state law. If they are valid at all, one charged with their violation is entitled to a trial by jury under the constitutional guaranty. *613