State v. Egerer

Lyon, J. The complaint assumes to state the specific .grounds of the action. This was unnecessary under the statute, which provides that in such an action “ it shall be sufficient to allege in the complaint that the defendant is indebted to the plaintiff in the amount of the forfeiture -claimed, according to the provisions of the statute which imposes it, specifying the section, and chapter containing such statute.” E. S., 842, sec. 3295. The word “forfeiture,” as thus employed, includes a penalty. Sec. 3294. True, the complaint alleges an indebtedness under the provisions of sec. 1330, E. S., but that is alleged as the legal ■conclusion from the specific facts stated. If, therefore, those facts do not constitute a cause of action, the demurrer was properly sustained. The case is precisely like that of Teetshorn v. Hull, 30 Wis., 162, in which it was so ruled. See, also, Kellam v. Toms, 38 Wis., 592, where the same rule was •applied to a complaint upon a judgment. The question is, therefore, whether the facts stated specifically in the complaint show a cause of action against the defendant for the penalty claimed. A person is liable to the penalty of the statute only when he fails to remove the encroachment within thirty days after the supervisors’ order ¡to do so is served upon him; or, if he denies the encroachment, within thirty days after an adjudication of the issue .against him; and the penalty commences in either case at the expiration of the thirty days. E. S., 414, secs. 1330-1334. Hence, unless an order was lawfully made 'by the ■supervisors requiring the defendant to remove the encroachment, and a copy of it regularly served upon him, he has incurred no penalty, and the action cannot be maintained. Sec. 1330 provides that in case of encroachment upon a lawful highway the supervisors of the town shall make an ■order requiring the occupant of the land to which the encroachment is appurtenant to remove the same within thirty days, and to cause a copy of the order to be served upon [530] such, occupant. Sec. 1331 is as follows: “No person shall be required to remove any fence, under the above provisions, except between the first day of November and the first day of April, unless the same shall have been made within three months next before the making of the order for the removal thereof.” The complaint states affirmatively that the encroachment here complained of is a fence, and that it was not made within three months next before the making of the order for its removal. Hence the section is applicable to the case. It is perfectly obvious that the making and service of the order provided for in sec. 1330 is a requirement that the occupant remove the encroachment. By making the order alleged in the complaint, and by serving a copy of it on the defendant, the supervisors requvred the defendant to remove his fence. This is precisely what sec. 1331 enacts shall not be done between April 1st and November 1st. Tet the order in question was made October 4th, and served October 5th. The proceeding was without authority of law, and is therefore a nullity. Were the true construction of the statute more doubtful than we now regard it, the familiar rule that penal statutes must be construed strictly in favor of defendants would probably compel us to give it the same construction. The defendant never having been lawfully required to remove his fence, no penalty has accrued against him, and the fact appearing upon the face of the complaint, the demurrer thereto was properly sustained. On the question of the original jurisdiction of the circuit court over the action, which has been somewhat argued, it is sufficient to say that our attention has not been directed to any statute which takes away such jurisdiction. We do not doubt the action may be brought in the circuit court, although within the jurisdiction of a justice of the peace. That circumstance goes only to the question of costs. ' Other points are discussed in the briefs of counsel, but it is deemed unnecessary to consider them. By the Court.— Order affirmed.