Vanderbilt Law Review


Stanley D. Rose

First Page



The county of Winnebago passed such an ordinance and McDonald was charged with a violation of it. McDonald demanded a jury, and Judge Schniege of the municipal court ordered it. Because no provision for a jury trial was in the ordinance, Keefe, the county district attorney, petitioned the circuit court for a writ of prohibition to prevent the enforcement of the municipal court's order for a jury trial. The circuit court denied the petition. On appeal, the supreme court reversed this denial. Judge Fairchild based his decision on the following chain of reasoning:

1. The power to define crimes is a sovereign power.

2. The legislature may not delegate such power to counties or municipalities.

3. The legislature may permit the counties and cities to collect fines as penalties for the violation of local ordinances or it may permit imprisonment to enforce the collection of a fine.

4. This power of collection is exercised through a civil action for the recovery of a fine.

5. Imprisonment may not be imposed for a violation of a local ordinance because

a. as an attempt to punish for a crime the ordinance is unauthorized, and

b. by the constitution, there may be imprisonment only for a crime.

6. Therefore, this ordinance was invalid because the county inherently cannot create crimes and the legislature cannot delegate to the county its own power to create crimes.