Action commenced August 20, 1948, by the city of Oshkosh against William Lloyd for violation of a city ordinance. From a judgment in favor of the plaintiff in the municipal court of Oshkosh, defendant appealed to the circuit court for Winnebago county. From a judgment of March 11, 1949, in favor of the plaintiff in that court, defendant appeals.
This is a civil action by the city of Oshkosh against William Lloyd for violation of the city ordinance prohibiting any person under the influence of an intoxicating liquor from operating a motor vehicle on a public highway.
The case was tried in municipal court of the city of Oshkosh and judgment was there rendered against him on August 27th. He appealed to the circuit court. The case was then tried to the court and jury. The jury returned a verdict of "Not guilty." Motions after verdict included that of the plaintiff to set aside the verdict because not supported by evidence. That motion was granted and, on the 11th of March, 1949, judgment against the defendant was entered for $100 plus costs in the amount of $28.68 and providing that, in default of payment thereof, said defendant be committed to the county jail of Winnebago county, Wisconsin, "until said forfeiture and costs be paid, the period of his [defendant's] commitment not to exceed sixty days." Defendant appeals. *Page 603 There is no evidence brought here by appellant. There is no bill of exceptions. Appellant asks this court to pass on the question of whether certain evidence existed without any evidence before it. We hold that this record does not warrant questioning the ruling of the learned trial judge, who said when ruling upon motions after verdict: "The undisputed evidence is to the effect that the defendant [appellant here] was intoxicated on the night on which he was arrested. . . ." Under the circumstances, the court concluded "that the verdict of the jury is an obvious miscarriage of justice, and this being a civil case the court has no alternative but to set aside the verdict."
An action to recover a forfeiture for violation of a municipal ordinance is a civil action and the rules of civil procedure apply. Milwaukee v. Burns (1937), 225 Wis. 296,274 N.W. 273. The trial judge states that the evidence of guilt is undisputed. Under such evidence a directed verdict would be the proper disposition; or after an unsupported verdict of not guilty has been rendered, it would be the duty of the trial court to set aside the verdict and enter judgment according to the facts. Milwaukee v. Burns, supra. Therefore, the contentions of appellant as to the controlling effect of a jury's verdict cannot be sustained under the circumstances. There was no error committed in setting aside this verdict, and there is no occasion for granting a new trial.
The appellant complains that because, in addition to the forfeiture, his license to drive may be revoked under sec. 85.08 (25), Stats. 1947, if he is found guilty under the ordinance of driving while under the influence of intoxicating liquor, he should be accorded special treatment. His argument evidently is that this provision in sec. 85.08 (25) makes a *Page 604 prosecution for violation of a drunken-driving ordinance a criminal action. Under that type of action the judge would not have been allowed to change the jury verdict. Patently that argument is groundless. The statute is separate and provides for a separate offense. State ex rel. Keefe v. Schmiege (1947),251 Wis. 79, 28 N.W.2d 345; Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N.W. 335; Milwaukee v. Stachelski (1924), 185 Wis. 142, 200 N.W. 769; Kuder v. State (1920), 172 Wis. 141, 178 N.W. 249; Ogden v. Madison (1901), 111 Wis. 413, 87 N.W. 568; See also Anno., Offensesas to which a jury trial is a constitutional right,75 L. Ed. 177, 197. The statutory provision for revocation of the license adds nothing to the ordinance. It is a mere incidental consequence of violation of the ordinance. State ex rel.Connolly v. Parks (1937), 199 Minn. 622, 273 N.W. 233. It certainly cannot have the effect of changing a civil into a criminal action.
During the argument our attention was called to the case ofDistrict of Columbia v. Colts (1930), 282 U.S. 63, 51, Sup. Ct. 52, 75 L. Ed. 177, as having some bearing on the question; but we have left that case aside because the difference between the character of legislation in that case and the ordinance here considered is so apparent that the Colts Case cannot be considered influential as a precedent. The ordinance in the case at bar provides for a civil action to recover a forfeiture, the act of congress in the Colts Case provided for an action to punish an offense by imposing a fine or imprisonment and for proceedings to be begun by charging the offense in an information.
Respondent asks that this court rule that, on appeal to circuit court, a jury trial may not be had in a prosecution for a violation of a city ordinance. It is the general rule that the constitutional right to a trial by jury does not apply to violations of municipal ordinances. Anno., Offenses as to which ajury trial is a constitutional right, 75 L. Ed. 177, 192; 31 *Page 605 Am.Jur., Jury, p. 575, sec. 28; Note, 1948 Wisconsin Law Review, 96. Therefore, we hold that these offenses are of the class which may be disposed of summarily in the municipal court especially where the statute so provides; but where there is a statutory provision for a jury trial, one may be had. Consequently, there may be an appeal to circuit court where there may be a trial by jury unless waived. The practice followed in Wisconsin, as outlined in the Ogden Case, supra, and approved in the Burns Case, supra, is confirmed.
By the Court. — Judgment affirmed.