City of Milwaukee v. Stachelski

The question presented by this appeal is whether a person can be convicted for a violation of a city ordinance which makes it an offense to sell non-intoxicating beverages without a license when the state statute also makes the same identical act an offense and provides a penalty therefor. It is claimed by the appellant 'that no punishment under the city ordinance can be enforced because the state statute covers the whole subject and prosecutions for the offense must be under the state statute, and not under the city ordinance. The city charter of Mikvcmkee grants to the council power “To impose fines for all violations, within the limits of the said city, of the general laws of the state, when, in their judgment, it is necessary for the peace and good ord’er, or for the health of the said city.” Ch. IV, sec. 3, sub. 52, Milwaukee Charter Law. It has uniformly been *144held in this state that, where an ordinance provides for a penalty for the commission of a petty offense and a state statute covers the same subject, there may be two distinct offenses — one a violation of the city ordinance, the other a violation of the general state statute. And it has Been uniformly held that a prosecution either under the ordinance or un,der the state statute may be had. The following cases sustain such holding: State ex rel. Milwaukee v. Newman, 96 Wis. 258, 71 N. W. 438; Ogden v. Madison, 111 Wis. 413, 87 N. W. 568; Milwaukee v. Ruplinger, 155 Wis. 391, 145 N. W. 42. It will be noted that the penalty for violating the city ordinance is different from that of violating the state statute, in this: the state statute ^provides for a fine or imprisonment, the city ordinance provides for a fine only, and, in default of payment thereof, imprisonment. For an interesting discussion of this subject showing- that some courts have come to a contrary conclusion, see note to Seattle v. MacDonald (47 Wash. 298, 91 Pac. 952), reported in 17 L. R. A. n. s. 49. The doctrine, however, that violations of the ordinance and the statute constitute two distinct offenses is too firmly intrenched in the jurisprudence of our state to be disturbed at this time.

By the Court. — Judgment affirmed.