The Wisconsin tobacco reporter. (Edgerton, Wis.) 1877-1950, 1900-03-23

decided tnat a complaint charging a violation
OF certain ordnance or law, must specify the
time when the offense was committed. Under
the nrst TWO charges in the complSint it is i'm
possible to determine when the offenSe was
committed which is there attempted to be
charged SuppoSing Mr.. Hartzheim should be
AGAIN charged with selling liquors after ten
o'clock at night or on Sunday. Could he plead
the conviction under this complaint in bar or
snow tnat he had been already tried for the
same onense? Obviously he could not. The
Supreme Court saw 1T is a fundamental
principle OF law that the facts and circum-
stances winch constitute the offense must be
stated IN the complaint with certainty and
precision that the defendant may know the Of
tense OF which he is accused and may be able
to plead the conviction or acquittal in bar of
announcer prosecution for the same offense.''
We are of the opinion that the first charge of
the complaint is fatally defective for Indefinite
ness ana uncertainty; that the second charge
ID the complaint is fatally defective for indeti-
n1teneSS and uncertainty and if stated upon
information and belief, other averments are
necessary; that the third charge of the COM
plant states no violation of any ordinance or
law.
We are of the opinion that the complaint
nled with you by George D. Mansfield does not
state facts sufficient tie warrant the Council in
issuing summons against Frank HartZheim
10 appear before you and answer the complaint.
II the council should issue summons against
FRANK Hartzhe1m we are of the opinion that
the complaint should be dismissed or QuaShed
ON MS motion for the reasons hereinbefOre
stated. Respectfully yours,
FETHERS, JEFFRIS & MOUAT.
Hon. w. G. Wheeler rendered the following
opinion:
GAINESVILLE, Wis March 9, 1900.
MeSSrS. George DOty Thomas B. Earle, Harlow
b. Knapp, Edgerton, Wis.
GENTLEMEN as committee of the
common Council of the city of Edgerton, have
asked whether the complaint of which the an
neXed Is copy, states a case under which you
are authorized to proceed in the revocation of
the license therein named, to-wit: Frank
Hartzheims. This complaint was made by
George ID. Mansfield, March 5th, 1900.
1t Is admitted that Hartzheim is, and has
been since the 1st day of July, $780, in possess
sell intoxicating liquors. This being true it
must also be conceded that he is in possession
OF a right which cannot be taken from him
during the license term, except for some cause
authorized by law, and that cause must clearly
appear from the complaint.
The Supreme Court OF this state in the case
OF State ex rel VS.. Bradish, 95 Wis. POS, says
tnat incense is vested property right. In or
DER TO deprive person Of such right every
requirement. of law must be strictly complied
these requirements
In the first place section 1858 of the revised
staGuteS provides that complaint must be
made IN writing and under oath, charging the
OHenSe Tor which revocation is claimed. In nv
opinion this requirement is not fulfilled by
complaint made upon information and belief.
as tne complaint in question is made. On the
-]NAAN
direct.
It is true that in some cases complaints upon
information and belief are sufficient, but new
ef unless the facts and circumstances which
induce the belief are stated in the complaint.
VI course refer to complaints charging COM
mission OF an offense, but complaints of this
nature are to be construed under the rules ap-
pl1caDle to criminal pleadingS. See State VS..
Tomah, ~ Wis., page 1913. I, therefore, consid-
er the complaint insufficient on account of the
criticism ABOVE made.
Again, complaint undertakes to charge that
HartZhe1m did on divers and many days since
the Isl day OF July 1892 sold Intoxicating and
malt liquors aSter ten o'clock at night in vio-
lat1on OF ordinance number six Upon ex-
animation of that ordinance it will be perceiv-
ed That III order to constitute a violation of the
ordinance the sale must be made ''within his
PREMISES this the complaint fails to charge
1t will also be perceived that this ordinance
comprising four sections, includes at least sew
en- d1St1nct OfenSeS and the complaint does not
call attention to even the number of the sec
ton Of the ordinance, which, it is claimed, was
violated ..rt
Then again complaint charges that Hartz-
helm did, since the 1st day of July, sell intoxi-
eating and malt liquors on Sunday but no
time is fixed nor is any time fixed when the
ordinance is claimed to have been violated.
1t is a fundamental principal of criminal law
that the facts and circumstances which con-
St1tute the OffenSe must be stated in the COM
plant, or information, with certainty and
precision that the defendant may know the
onense OF which he is accused, and may be able
to plead the conviction or acquittal in bar of
another prosecution for the same offense."
State vs. Tomah, 80 Wis, 198 This is the Ian
guage used by our Supreme Court in a case for
revocation of a license under complaint
which has many points of similarity to the one
in question.
I believe that the defendant is entitled to he
advised of the time when it is charged that he
violated the statute law OF the ordinance and
unless this is done the complaint is bad.
The complaint also refers to certain state
ments made by Hartzheim before the Common
Council. With respect to this can simply say
that that portion of the complaint states no
cause for the revocation of license, is not one
of the causes recognized by statute. Language
alone will not authorize revocation of a license
For the reasons above sttaed my opinion is
that the complaint will not warrant your pro-
ceedlng further in the revocation of this Ii
cenSe
IS You have also called my attention to some of
the resolutions which were presented to vOur
Common Council With respect to these can
only say that no resolution would warrant the
Council in proceeding to revoke license with
out the sworn complaint being filed with the
city clerk, as required by section 1859 of the re-
viSed statutes.
I may add that if you should proceed upon
this complaint and should find evidence sl1ff-
Gent to warrant revocation of license and
should revoke the license, a writ of certiorari
could be sued out and your proceedings re-
viewed by the Circuit Court and if the Court
should be OF the opinion that the complaint is
insufficient, your decision would certainly be
reversed. I am compelled to advise you
therefore, that you cannot safely proceed upon
this complaint.
Respectfully yours,
WILLIAM g. WHEELER.
Therefore after carefully weighing the three
opinions your committee would recommend
that the council dismiss the charge of Geo. d.
Mansfield against F. j. Hartzheim.
Dated, Edgerton, Wis, March 20, 1900.
GEO. W. DOTY,
II. B. EARLE, ICom.
FL. B. Knapp,
AID. Leary moved that the report be
accepted and the charges dismissed.
Motion carried.
The following bills were presented and
allowed:
T. Cook, street work. .............. .....S % 80
c. L. Herrick, repairs on scraper. 3 25
Fethers, Jeffris & Mouat, legal opinion. 90
W. G. Wheeler, legal opinion ........... 5 90
Geo. G. Mansfield Co. oil. 80. ..,....... 26
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