¶ 52. {concurring). Unlike the lead opinion, I recognize that McGrew has a constitutional right to a jury trial for this civil forfeiture action. Based upon the law at the time the Wisconsin Constitution was enacted, I determine that the constitutional right is for a six-person jury. Because McGrew exercised his right to a six-person jury here, I conclude that there was no error. Accordingly, I respectfully concur.
¶ 53. In Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, ¶ 11, 254 Wis. 2d 478, 647 *549N.W.2d 177, this court determined that "a party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848[;] and (2) the action was regarded at law in 1848."
¶ 54. Applying this test, the lead opinion determines that the charge of speeding "did not exist at common law at the time of the adoption of the Wisconsin Constitution in 1848." Lead op., ¶ 3. After examining the relevant violations known at common law, it concludes that "McGrew has no constitutional right to a jury trial." Id.
¶ 55. The lead opinion's analysis, however, presents a conundrum. After acknowledging that certain rules of the road did exist at common law at the time the Constitution was enacted, the lead opinion's analysis leaves some traffic violations with a statutory right to a six-person jury and others with a constitutional right to a 12-person jury. Id., ¶ 49. We are thus left with a constitutional hodgepodge.
¶ 56. The lead opinion errs when it narrowly focuses on McGrew's speeding violation. The error of its ways is made evident by its recognition that it "makes little sense for us to scrutinize whether each individual traffic violation was recognized at common law so as to determine whether a violator is entitled to a six- or 12-person jury." Id.
¶ 57. The scope of the lead opinion's focus thrusts it into the dilemma that it encounters. Rather than narrowly focusing on each individual violation, the lead opinion should broaden its lens to focus on violations of the "rules of the road." This change in focus is more than a technical nuance; it is outcome determinative. *550Significantly, it produces an outcome that avoids the constitutional hodgepodge and makes sense.
¶ 58. Thus, the question we should address is not whether a violation for speeding existed at the time the Wisconsin Constitution was enacted. Rather, the question more broadly stated is whether "rules of the road" existed at common law at the time the Wisconsin Constitution was enacted in 1848. To help resolve this broader question, we look to "the earliest interpretation of the [rules of the road] by the legislature as manifested in the first law passed following adoption" of the Wisconsin Constitution in 1848. Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996).
¶ 59. It is evident that "rules of the road" did exist in 1848. Chapter 33 of the 1849 statutes is entitled "Of the Law of the Road, and the Regulation of Public Carriages." Set forth in this chapter are several rules governing traffic violations. For example, a forfeiture of $20 was imposed for a violation for operating "to the right of the middle of the travelled part of such bridge or road. . . Wis. Rev. Stat. ch. 33, § 2 (1849). A forfeiture of $5 was imposed against public carriage owners who employed "persons addicted to drunkenness." Wis. Rev. Stat. ch. 33, § 3 (1849).
¶ 60. The "laws of the road" violations recognized at common law in 1848 are the predecessors to the "rules of the road" violations recognized today. Included in the "rules of the road" violations is a civil forfeiture action for speeding. See Wis. Stat. § 346.60 (2003-04).
¶ 61. Having recognized the existence of "laws of the road" at the time the Constitution was enacted, I turn next to how violations of these rules were dealt with in 1848. Our history shows that causes of action for such violations were tried by justice of the peace *551courts, where it was customary for the penalty to be a minor forfeiture and where the alleged violator had a right to a six-person jury.
¶ 62. Justice of the peace courts had jurisdiction to hear actions for the recovery of forfeitures of less than $100. Wis. Rev. Stat. ch. 88, § 5(5) (1849). All of the "laws of the road" violations fell comfortably within that limit. See Wis. Rev. Stat. ch. 33 (1849). Thus, all such cases alleging "laws of the road" violations were tried before justice of the peace courts.
¶ 63. Section 80 of Chapter 88 clearly provides for a right to a six-person jury trial in a justice of the peace court. It states: "either party, on first paying to the justice the jury fees in advance, which shall be taxed against the losing party, may demand that the cause be tried by a jury of six men." Applying the Village Food test, I conclude that a defendant has a constitutional right for a six-person jury trial in forfeiture actions asserting violation of the "rules of the road."
¶ 64. Unlike the dissent, I do not interpret the case of Norval v. Rice, 2 Wis. 17,[*22] (1853) as altering this analysis or conclusion. In that case the court struck down a statute providing for six-person juries in county court civil cases, i.e. courts of record. Id. at 23,[*30]. The court determined that Article I, § 5, of the Wisconsin Constitution preserved the right to a 12-person jury trial in a court of record. Id. However, it explicitly declined to address the constitutionality of statutes providing for six-person juries in justice of the peace courts, which are at issue here. The court stated:
So far as the restriction of the jury before a justice of the peace is concerned, we do not feel at liberty to inquire at this time, but may remark that the party aggrieved by the decision before the justice, might, in *552certain cases, remove the case by appeal to the District Court, where a trial by a jury of twelve men would be available.
Id.
¶ 65. Despite Norval's silence on the issue, the dissent interprets the decision as mandating a 12-per-son jury trial in all civil cases, including the cases involving "laws of the road" forfeiture actions tried in justice of the peace courts. The premise behind this conclusion is that an offender charged with violating the laws of the road could appeal a judgment from the justice of the peace courts to the county courts and receive a jury of 12 persons. Dissent, ¶ 89. According to the dissent, "it is not coincidence that [the Norval] court allayed its concerns regarding the six-person juries in justice of the peace courts (which it chose not to decide) by noting that 12-person juries could eventually be obtained in a court of record." Id., ¶ 92.
¶ 66. I conclude that the dissent's reliance on Norval is misplaced. To begin, the Norval court never indicated that all aggrieved parties in justice of the peace courts could appeal their case to county courts for a 12-person trial. Rather, it merely recognized that some parties "might, in certain cases" have the ability to do so.
¶ 67. Such a qualification highlights the faulty premise of the dissent and its resulting flawed interpretation of Norval. The right to an appeal from the justice of the peace courts was strictly controlled by statute. See, e.g., Pelton v. Town of Blooming Grove, 3 Wis. 279,[*310], 281,[*312] (1854); Clark & Rice v. Bowers, 2 Wis. 92,[*123], 96,[*127] (1853); Mitchell v. Kennedy, 1 Wis. 511, 512 (1853). When not provided for by statute, the right to appeal did not exist. Mitchell, 1 Wis. at *553440,[*512], If the statutory requirements were not met, then review was by certiorari. Adler v. Gee, 3 Wis. 681,[*742] (1854). Some of the "laws of the road" violations had a forfeiture of $5, and as such, the review for those cases was by certiorari review in county court.
¶ 68. The relevant statutes regarding appeal were ch. 88, §§ 226 and 227. Section 226 authorized an appeal where the recovery at issue exceeded $15. It provided:
Any party to a final judgment rendered by a justice of the peace, where the recovery shall exceed fifteen dollars, except judgment of nonsuit, exclusive of costs, conceiving himself aggrieved thereby, may appeal therefrom to the county court of the county where the same was rendered, in the following cases: 1. Where the judgment was rendered upon an issue of fact joined between the parties; 2. Where it was rendered on an issue of fact joined between the parties, whether the defendant was present at trial or not.
Wis. Rev. Stat. ch. 88, § 226 (1849).
¶ 69. Section 227, meanwhile, authorized several limited exceptions for parties to appeal when the judgment was less than $15. It provided:
A party may appeal from the judgment of a justice where the judgment is less than fifteen dollars, in the following cases. 1. Where the claim of either party, as proved at trial, shall exceed fifty dollars; 2. Where the defendant did not appear and plead, and final judgment was rendered for the plaintiff on the merits of his claim.
Wis. Rev. Stat. ch. 88, § 227 (1849). Given these parameters, I cannot join the dissent's broad reading of Norval.
¶ 70. In sum, taking into account the 1849 statutes that show the existence of forfeiture actions for *554"laws of the road" violations, the cause of action against McGrew satisfies the controlling Village Food test. It was the custom for the defendants to have a jury of only six persons when forfeiture actions were tried by jury in justice of the peace courts. Because McGrew is constitutionally entitled to only a six-person jury at the trial of his civil forfeiture, and he was tried by a six-person jury here, I conclude that there was no error.1
¶ 71. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice N. PATRICK CROOKS join this concurrence.Applying the Village Food test, there are four justices of the court that conclude that McGrew has a constitutional right to a jury. However, there is a split as to whether the right is to a six- or 12-person jury. Nevertheless, this opinion, together with the dissent, form a majority on the constitutional issue that such a right exists and, at a minimum, it is to a six-person jury.
This decision is not to be read, however, that there is a constitutional right to a six-person jury trial in municipal court. Rather, the right is exercised when upon appeal there is a jury trial in circuit court. See Ogden v. City of Madison, 111 Wis. 413, 87 N.W. 568 (1901) (the constitutional right to trial by jury does not extend to a prosecution for a violation of a city ordinance in municipal court).