#### City of Milwaukee, Respondent, vs. Beatty, Appellant.

*April 4*

April 23, *1912.*

*Municipal ordinances: Letting room, for prostitution: Who is “landlord:” Forfeiture: Civil action: Appeal from district court: Person “convicted.”*

1. In a municipal ordinance prohibiting any person from leasing or letting, “as landlord,” any house, room, or other premises in the city to he used for the purpose of prostitution, the word “landlord” includes a person who lets a room for said purpose in a building occupied by him, although he himself occupies such building only as a tenant under an oral lease from month to month.

2. Where a munieipál ordinance provides that any person violating it shall upon conviction “be fined,” but does not make the pro*350hibited acts punishable “by fine and imprisonment,” or “by fine or imprisonment,” nor specially declare them to be misdemeanors, a civil action may be maintained by the city under sec. 3294, Stats. (1898), to recover the money penalty provided.

3. Within the meaning of ch. 218, Laws of 1899, as amended by ch. 72, Laws of 1907, — providing that every person "convicted” before the district court of Milwaukee county “may appeal from the sentence or judgment against him to the municipal court,”— the word “convicted” applies to a person against whom a judgment has been recovered in a civil action for the money penalty for violation of a city ordinance.

Appeal from a judgment of the municipal court of Milwaukee county: A. C. Bacicus, Judge.

*Affirmed.*

The appellant was convicted in the district court of Milwaukee county of having leased and let, as landlord, through his agent, a, certain room, in the building occupied by him in the city of Milwaukee, to be used for the purpose of prostitution and lewdness, contrary to an ordinance of the city. The trial on appeal to the municipal court of Milwaukee county resulted in a conviction.

There was evidence before the court that the appellant stated that he, as occupant of the premises in question, had rented out rooms for the night and by the hour. There was evidence also that the appellant was occupying the premises at the time he is accused of having committed the offense, and that he had been in possession of them for two years previous, thereto. It was admitted that the appellant had a verbal lease from month to month of the premises.

The evidence of the specific violation of the ordinance upon which the conviction rested was that a man, accompanied by a woman not his wife, had gone to the premises in the nighttime, had rented a room from the wife of the appellant, and had occupied the room and the bed therein with the woman who came with him. Knowledge of the purpose for which the room was rented was supported by the evidence that the man asked the woman who accompanied him, in the presence of *351tbe wife of tbe appellant, wbat her ebaxges were for occupying tbe room with bim, that sbe gave tbe amount thereof, and that tbe man replied, “All right.” There was evidence also that tbe appellant bad stated that bis wife rented tbe rooms that were rented at night and that be was tbe proprietor of tbe place.

There was evidence tending to show that men and women would meet near this bouse, go into it, and occupy a room for tbe purpose of prostitution.

Tbe court found appellant guilty of tbe offense charged and imposed a fine of $50. Judgment was awarded in tbe city’s favor for this amount and for tbe costs of tbe action. This is an appeal from tbe judgment.

*D. L. Eaton,*for tbe appellant.

For tbe respondent there was a brief by *Demiel W. Doan,*city attorney, and *E. L. McIntyre,*assistant city attorney, and oral argument by *Mr. McIntyre.*

Sibbeceer, J.

Tbe offense charged is that tbe defendant violated sec. 36 of cb. XX of tbe general ordinances of tbe city of Milwaukee, wbieb provides:

> “All persons are hereby prohibited from leasing or letting, either as landlord or agent of tbe landlord, or agent of tbe tenant, or as landlord through any agent or subagent, any bouse, room or other premises in tbe city of *Milwaukee,*to be used for tbe purpose'of prostitution or lewdness. Any person violating any of tbe provisions of this section shall, upon conviction thereof, be fined not less than fifty nor more than five hundred dollars.”

Tbe evidence is clear that tbe defendant, through bis wife as bis agent, did, at tbe time charged, lease and let a room in tbe bouse be occupied as tenant for tbe prohibited purpose. It is argued that tbe offense charged, that be so leased tbe room as landlord, is not established, because tbe evidence fails to show that be was a landlord within tbe meaning of tbe or-*352dinau.ce. This claim is based on tbe facts that be was not tbe owner of tbe bouse and premises occupied bj him, and that be occupied them as a tenant from month to month under a verbal lease. Tbe word “landlord,” as used in tbe ordinance, is not restricted in its meaning to an owner of an estate in lands and tbe improvements thereon greater than a leasehold estate. It clearly embraces tenants of bouses and tbe premises on which they are situated who conduct tbe inhibited business in such buildings. Tbe evidence shows that tbe defendant was tbe keeper and proprietor of this establishment in this bouse and hence that be stood in tbe relation of landlord to those to whom be let rooms. Tbe purpose of tbe ordinance, as expressed by its context, evinces tbe intent that all persons engaged in letting rooms as proprietors of such a business conducted on leased premises and bouses should be treated as landlords within tbe terms of tbe ordinance. Tbe court properly held that tbe defendant’s acts under tbe circumstances shown came within those forbidden by tbe ordinance.

This action is brought in tbe name of tbe city to recover tbe fine provided for in tbe ordinance. Tbe acts prohibited by the ordinance are not made punishable “by fine and imprisonment” or “by fine or imprisonment;” nor do tbe provisions of tbe ordinance declare such acts to be misdemeanors. Hence they are included within tbe provisions of sec. 3294, Stats. (1898), under which a civil action may be maintained for the recovery of a money penalty. Tbe following cases are adjudications on tbe subject and declare tbe grounds upon which the city has tbe right to proceed by a civil action in such a case: *Oshkosh v. Schwartz,*55 Wis. 483, 13 N. W. 552; *Ogden v. Madison,*111 Wis. 413, 87 N. W. 568; *Koch v. State,*126 Wis. 470, 477, 106 N. W. 531; *C. Beck Co. v. Milwaukee,*139 Wis. 340, 120 N. W. 293.

Upon appeal of this case by tbe defendant from tbe judgment rendered against him in tbe district court of Milwaukee *353county to tbe municipal court of tbe county, tbe city moved for a dismissal of tbe appeal upon tbe ground that tbe law made no provision for an appeal in a civil action from sucb district court to tbe municipal court. Cb. 218, Laws of 1899, as amended by cb. 72, Laws of 1907, provides:

> “Every person convicted before said district court may appeal from tbe sentence or judgment against bim to tbe municipal court of said city and county of Milwaukee, witbin ten days from tbe date of sentence or judgment against bim. Said municipal court is empowered to bear, try and determine sucb appeals and all provisions of law relating to appeals in criminal cases from justices’ courts, and tbe trial and determination thereof shall apply to appeals from said district court to tbe municipal court.”

It is to be observed that “every person convicted before said district court may appeal from tbe sentence or judgment against bim to tbe municipal court ...” A successful prosecution of a person for tbe violation of a city ordinance constitutes a conviction of bim, whether it be in tbe form of a criminal action, wherein punishment is imposed, or a civil action, wherein tbe prescribed money penalty for guilt is recovered. In prosecutions for violations of ordinances to recover sucb penalties, tbe courts have applied tbe term “convicted” to persons found guilty in sucb civil actions. See *Ogden v. Madison,*111 Wis. 413, 87 N. W. 568, and cases there cited. So this statute, in providing for appeals from judgments of tbe district to tbe municipal court, uses tbe words “Every person convicted . . . may appeal from tbe sentence or judgment” as including a person against whom a judgment has been recovered of a penalty for tbe violation of a city ordinance. Tbe exposition of tbe question in tbe opinion of a minority of tbe justices of this court in tbe case of *State ex rel. Cooper v.*Brazee, 139 Wis. 538, 121 N. W. 247, and tbe statutes and authorities therein cited in support thereof, is a full statement *354of tbe grounds showing that the municipal court acquired jurisdiction of the action on appeal from the district court, and we herewith adopt the same as a correct statement of the law on the subject and as supporting the judgment of the trial court in this action.

*By the Oourt.*— Judgment affirmed.