Morgenroth v. City of Milwaukee

SiebeokeR, J. The ordinance in question provides that, when a person is brought before the court for the violation of the ordinance, a complaint shall be made against him charging the offense, which shall be considered as made in the acr [667] tion or proceeding^ in which the original warrant on which he-was arrested was issued, and that “such complaints may he made by the city attorney or his assistant, in the manner provided by and in accordance with the provisions of the charter of said city of Milwaukee and the rules and practice of said municipal court, and it need not be verified.” It is claimed that under these provisions all complaints for violations of such ordinance must be añade by the city attorney or his assistant, and, if made by others, they have no validity for any purpose. The arguments of counsel for both plaintiffs and defendant in error assume that the only question for consideration is whether, under the rules applied in the construction of statutes prescribing rules of procedure, the word “may”' as used in the ordinance is employed in a permissive or a mandatory sense. We find, however, upon investigation, that the legislature has spoken on the subject in no uncertain terms. Oh. 35, Laws of 1853, provided a code of procedure for actions brought by the city of Milwaukee, in its corporate name, in the police court of the city, for the recovery of fines and penalties under its charter and ordinances. This code, until its final repeal in 1895, was made applicable to the municipal court of the county of Milwaukee. As to the powers and jurisdiction of the municipal court, it was provided by sec. 2501, E. S. 1878, that: “The judge of said court . . . shall have jurisdiction of all prosecutions for breach of any ordinance, law, rule, regulation and resolution of the city of Milwaukeej for the latter purpose, he shall open court each morning (Sundays and legal holidays excepted), and hear and dispose of in. a summary way all cases for such breaches, which .shall be brought before him by the police officers of said city or otherwise, either with or without process, and impose the fines and penalties provided by such ordinance, law; rule, regulation or resolution.”' This jurisdiction remained in the municipal court until the repeal of this section by ch. 7, Laws of 1895, and was vested in a police court of Milwaukee county by ch. 6, Laws [668] of 1895, giving exclusive jurisdiction to the police court of all prosecutions for the breach of any ordinance, law, rule, or resolution of the city of Milwaukee, and providing that complaints and other papers in actions in this court should in form and substance conform to those theretofore used in the municipal court, and that: “In city prosecutions . . . [its] clerk, or one of his deputies, shall enter upon the records of the court a statement of •the offense charged, which shall stand as the complaint, unless the court shall direct a formal complaint to be made.” To this complaint the defendant was required to plead, and, in case the plea was not guilty, he was required to go to trial upon the issues thus raised. This police court was abolished by ch. 218, Laws of 1899, and by this act the legislature established the district court of the county of Milwaukee, and granted it “exclusive jurisdiction to try and sentence all offenders against the ordinances of . . . [the] city of Milwaukee’’ and provided that the complaints and other papers used should in form and substance conform to those hitherto used in the police court and in the municipal court, and in prosecutions for violations of ordinances the clerk should enter upon the court records a statement of the offense charged, “which . . . [should] stand as the complaint, unless the court . . . [should] direct formal complaint to be made.” These statutes, which prescribe a procedure for the making of complaints charging violations of the city ordinances, apply to the subject in hand. The procedure followed and the complaints made by the police officers in these actions are clearly in compliance with these provisions, providing for formal complaints under the direction of the court, and must be held sufficient and proper, unless they are rendered ineffectual by the provisions of the ordinance in question. These legislative provisions, covering the subject, provide how complaints ah all be made and the procedure to be followed in prosecutions for violations of the ordinances of the city. It is well estab669 listed that a common conncil of a city cannot in the exercise’ of its legislative grant enact ordinances which are in conflict with the laws of the state. These provisions, therefore, cannot be modified or abrogated by the common conncil, and, if’ actions are instituted in pursuance to their requirements, the proceeding is valid. Upon these grounds it must be held that the complaints upon which plaintiffs in error were put upon their trials in these actions are good, and the conviction’and judgments must be sustained. Hayes v. Appleton, 24 Wis. 542; Barling v. West, 29 Wis. 307, and cases cited. Whether the common council of the city has the power to prescribe that, in addition to the method provided in the statutes, the city attorney or his assistant may make complaint as prescribed’ in this ordinance without verification may involve questions not free from difficulty. It is not necessary to decide this question in determining the question presented on this appeal,, and we therefore express no opinion on the subject. By the Court. — The judgments are affirmed.