(dissenting). The provisions of sec. 71.11 (41) and sec. 71.11 (42), Stats., are identical with respect to the acts, omissions, and circumstances they apply to. If sec. 71.11 (41) is a civil penalty and sec. 71.11 (42) a criminal penalty, then we are confronted with a situation where an administrative officer has the discretion to determine whether an offender shall be required to answer a civil charge, a criminal charge, or both, for identical behaviors. This is a denial of equal protection of the laws and an invalid delegation of power by the legislature to those administrative officers charged with the enforcement of this statute.
Secondly, the plain language of the statute indicates that (41) and (42) are both criminal offenses. Sec. 71.11 (41) uses the word penalty, not forfeiture. Any other interpretation would require, in my opinion, a predisposition to construe the statute in favor of the state.
I believe (41) and (42) both to be criminal statutes and their coexistence violates the constitutional requirements of due process and equal protection of the laws.