Carter v. Dow , 16 Wis. 298 ( 1862 )

By the Court,

Dixon C. J.

We agree with the plaintiff’s counsel, that the forfeiture incurred under section 7, of chap. 175, Laws of 1860, must be enforced by civil action. That act does not prescribe the form of the remedy, further than that the prosecution shall be in the name of the state, sec. 13. The general statute (R. S., chi 155, secs. 1, 2,) declares that in all cases not otherwise specially provided for, where the act or omission shall not be a misdemeanor, the penalty or forfeiture may be sued for and recovered in a civil action in the name of the state, and that it shall be prosecuted in the same manner as personal actions. Still we do not think that the warrant in this case, though in form criminal, was so radically defective that it may be collaterally disregarded. It was no doubt irregular, and might have been set aside on motion, but not void. The substantial requisites of the process are the Same in both cases. R. S., ch. 120, § 37, and ch. 121, § 36; and if the justice made a mistake, it did not deprive him of jurisdiction. Nor do I think the affidavit was so defective as to show a total want of jurisdiction. The statute requires an affidavit showing to the satisfaction of the justice that the defendant has incurred a penalty or forfeiture, by the violation of some law of this state, for which the person filing the same has a right to prosecute in the name of the people of this state, or otherwise. R. S., ch. 120, secs. 23, 24. The act itself declares that no mere technical objection to the complaint shall be allowed to defeat a prosecution ; sec. 13. The offense was positively charged in the affidavit, and the only objection is, that the complainant subsequently stated, upon information and belief, how he supposed it to have been' committed. The positive statement is enough to shield the justice from the charge of having acted without any evidence, to call for the exercise of his judgment upon the weight of the testimony; and though he’ may bave erred in bis conclusions, the proceeding was not void for want of jurisdiction. He is liable only when he fails to acquire jurisdiction, and not for a mere error of judgment.

The duties of enforcing the penalties incurred, is specially imposed upon certain officers by the tenth section of the act, so that section nine of chap, 155, R. S., has no application. But even if it had, I do not think it was the intention of either section to prohibit any citizen having knowledge of the offense from making complaint in the name of the state. It is certainly in accordance with the spirit of our laws in criminal and quasi criminal proceedings, that the courts should be open to the complaints of all, holding each responsible for the malicious or wanton abuse of the privilege. The design no doubt was, by making it the especial duty of certain officers to prosecute, to secure'more effectually the punishment of all offenders. The act is not unconstitutional. It is an exercise of the police, and not of the taxing power of the state, a strictly legitimate enactment “ to regulate and license the keeping of dogs.”

Judgment reversed, and a new trial awarded.