text:
    Mayer and wife, Respondents, v. Grueber and wife, Appellants.

      November 4

    November 30, 1965.

      For the appellants there was a brief by Howard & Burns, attorneys, and James G. Howard of counsel, all of Milwaukee, and oral argument by James G. Howard.

    For the respondents there was a brief by Stem & Lee, attorneys, and James F. Stern of counsel, all of Milwaukee, and oral argument by James F. Stern.

   Heffernan, J.

“Nor has the world a better thing, Though one should search it round, Than thus to live one’s own sole king, Upon one’s own sole ground.”

Wilfrid Scawen Blunt “The Old Squire”

It is clear from the record that all of the area, exclusive of the 4.66 acres contained in tract “C,” was conveyed to the plaintiff by the deed from the Ozaukee Sand & Gravel Company. The plaintiff takes the position that his rights are exclusive on his “own sole ground,” whether this ground is covered with water or not. The defendant admits that the land beneath the surface of lake “A” was conveyed to the plaintiff, but contends that, by virtue of owning to the shore of lake “A,” he is a riparian owner and entitled to the beneficial use of the lake. It is conceded that the plaintiff Mayer has been taxed for the whole area, including the lakes, but exclusive of tract “C.” Riparian land is land so situated with respect to a body of water that, because of such location, the possessor of the land is entitled to the benefits incident to the use of the water. Burby, Real Property (hornbook series), p. 48, sec. 19. See also 6A American Law of Property, p. 156, sec. 28.55 et seq.

Riparian rights are defined in 93 C. J. S., Waters, p. 605, sec. 5, as “a right to the usufruct [the right to enjoy a thing without altering the substance thereof] inherent in the land . . . .”

In Wisconsin riparian rights vary in accordance with the nature of the body of water. With respect to the ownership of the bed of the stream, a riparian owner owns to the thread [the geographical center] of the stream. Walker v. Shepardson (1885), 4 Wis. 495 (*486), 507 (*508); Ne-pee-nauk Club v. Wilson (1897), 96 Wis. 290, 71 N. W. 661. The title of the riparian owner is, however, a qualified one, subject to the paramount interest of the state. Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N. W. (2d) 514, 55 N. W. (2d) 40; Ashwaubenon v. Public Service Comm. (1963), 22 Wis. (2d) 38, 125 N. W. (2d) 647, 126 N. W. (2d) 567. However, the owner of a land abutting a natural lake or pond owns to the waterline only, since title to the submerged lands beneath a permanent body of natural water belongs to the state. An abutting property owner on a natural lake, except for the right of access, has no more rights as a riparian than any other member of the public. Ne-pee-nauk Club v. Wilson, supra, page 294; Bino v. Hurley (1956), 278 Wis. 10, 16, 76 N. W. (2d) 571, 1959 Wisconsin Law Review, 341.

The riparian rights of lake-lot owners are sometimes referred to as littoral rights (Black’s Law Dictionary). However, most Wisconsin cases make no distinction in applying the terms, “littoral” and “riparian” rights. In general, the bundle of rights conferred upon a property owner by virtue of his contiguity to a body of water, whether a lake or stream, are referred to as riparian rights. It would appear that the interchangeability of these words is philologically justifiable, since both ripa and litus (the stem words) are defined as referring to either the bank of a lake or of a stream (Cassell’s New Latin Dictionary, Funk & Wagnalls, 1960).

Riparian rights include the right to use a body of water “for bathing, swimming, and boating purposes.” Bino v. Hurley (1956), 273 Wis. 10, 16, 76 N. W. (2d) 571. It is clear in Wisconsin that the mere fact that one owns property abutting a natural body of water presumptively confers certain rights.

It is equally clear that one who acquires land abutting a stream or body of water may acquire no more than is conveyed by his deed. In an old case, Allen v. Weber (1891), 80 Wis. 531, 50 N. W. 514, the plaintiff for the purpose of cutting ice purchased a lot adjacent to a millpond. His deed described “the west side of Fox river” as the boundary line. The court held that even where the land abuts a flowing stream that there is, at the most, a presumption that ownership of the bank is to also include the bed of the stream. The court stated that the presumption could be rebutted by the clear language of the deed, which made it apparent that the margin of the stream was to be the boundary line.

“When land conveyed is described, not as bounded by a stream, but by or on the ‘bank,’ ‘shore,’ ‘margin,’ ‘edge/ etc., of it, the land under the water is usually excluded, and the low water mark is usually adopted as the boundary. The same principle applies to conveyances of land bounded by the margin or shore of a lake.” Tiffany, Real Property (abridged ed.), p. 690, sec. 674. See also 4 Tiffany, Real Property (3d ed.), p. 103, sec. 995.

Tiffany cites Allen v. Weber, supra, as supporting this proposition.

“There could be no language of description more clearly indicating the exact line than is found in the conveyances of this strip of land: ‘To low-water mark; thence northerly along the low-water mark.’ This language could have no other meaning than to indicate the intention of the grantors to limit the premises, and establish their boundary at that line ‘along low-water mark’ Allen v. Weber (1891), 80 Wis. 531, 536, 50 N. W. 514.

This language is similar to the language of the deed in the instant case wherein the boundary of lot “C” is described as “along the easterly bank.”

Allen v. Weber, supra, holds that riparian rights do not necessarily follow as a matter of course the ownership of the adjacent land. In this respect, Wisconsin follows the general rule as set forth in Burby, Real Property (hornbook series), p. 46, sec. 18:

“. . . the owner of the upland is presumed to possess riparian rights, . . . Such rights are freely alienable and may be separated from upland ownership. Whether or not riparian rights are conveyed along with the grant of the uplands depends largely upon the intent of the grantor, with particular reference to the language in the deed.”

See also Bright v. Superior (1916), 163 Wis. 1, 156 N. W. 600.

The presumption in favor of owning a portion of the bed of a stream (Allen v. Weber, supra) is not applicable where an artificial lake or body of water is concerned. In Skalitsky v. Consolidated Badger Co-operative (1948), 252 Wis. 132, 137, 31 N. W. (2d) 153, the court made that distinction, saying:

“The plaintiffs’ lot does not lie on the bank of a stream but on the shore of an artificial pond, and the intent of the plattors that the land of the plaintiffs’ lot should not run to the center of the pond plainly appears.”

In the instant case, however, it is conceded by the defendant that he has no ownership rights in the bed of the lake itself. This being true, he has no other rights in the waters over the bed of the lake unless he acquired those rights by prescription or adverse possession.

Haase v. Kingston Co-operative Creamery Asso. (1933), 212 Wis. 585, 588, 250 N. W. 444, holds that though the public may have acquired the right to use the waters of a millpond, still the title to the land remains in the owner and does not become vested in the state. Additionally, and more important to this instant case, it makes it apparent that the rights to use the waters will only arise from prescription.

“Where the owner of land creates an artificial body of water upon his own premises, he may permit the public to enjoy the ordinary use of such waters, and, it may be, that by the lapse of time such enjoyment will ripen into a dedication . . . ,” (Emphasis supplied.)

It is elementary that the owner of private property may make any proper use of it so long as he does not interfere with the rights of the public. The use, of course, must be lawful. Haase v. Kingston Co-operative Creamery Asso., supra.

A perusal of the cited cases shows that the owner of property on a stream presumptively holds title to the middle of the watercourse. The cases, however, are in accord that the riparian rights and title to the land under the water are severable if the deed makes that limitation clear. In the case of natural lakes and bodies of water, the adjacent landowner owns only to the shoreline; the lake bottom is held in trust for the people of the state. In the case of artificial bodies of water, all of the incidents of ownership are vested in the owner of the land. An artificial lake located wholly on the property of a single owner is his to use as he sees fit, provided, of course, that the use is lawful. He may if he wishes reserve to himself or his assigns the exclusive use of the lake or water rights.

We conclude, therefore, that the defendant by his deed acquired only what was granted by the words of conveyance, property rights up to the water’s edge. A review of the facts in this case makes it highly probable that the defendant bought the property from Smith with the full intention of using the adjacent water, but, as this court said in Allen v. Weber, supra, page 539:

“But at best such a purpose would not affect the deed, or the natural construction of its language. Deeds would be very inconclusive if they were to be governed by the use the purchaser intended to make of the land.”

The defendant, in part, bases his case upon the theory that he has acquired prescriptive rights to use the water.

“Under the prescriptive doctrine, title to water rights may be lost by the owner and acquired by another through long continued adverse use, ‘prescriptive’ being the word used to describe this uncompensated transfer of rights from owner to wrongful user . . . .” Richard S. Hamsberger, Prescriptive Water Rights in Wisconsin, 1961 Wisconsin Law Review, 47, 48.

The same author points out that the requisites for establishing a right by prescription in Wisconsin include (1) adverse use that is hostile or inconsistent with the exercise of the title holder’s rights, (2) visible, open, and notorious action, (3) open claim of right, and (4) continuous and uninterrupted use for the entire period required by the statute of limitations.

The applicable period in Wisconsin is twenty years, the period set by sec. 330.02, Stats., as limiting the time within which an action can be brought for the recovery of real property. Diana Shooting Club v. Lamoreux (1902), 114 Wis. 44, 89 N. W. 880; Tiedeman v. Middleton (1964), 25 Wis. (2d) 443, 454, 130 N. W. (2d) 783.

It is apparent that the defendant fails to establish the elements necessary for him to prevail. It is arguable that the waters with which we are concerned have existed for twenty years, but the length of time the lake or lakes have existed is irrelevant, since the defendant is not claiming that this is a situation where the plaintiff flooded his land and will not now be allowed to lower the water level. Rather, he must hinge his argument on the use of the waters, not their mere existence. The first adverse use commenced after Mayer acquired the property in 1952. It appears from the evidence that Smith thereafter used the water for recreational purposes, though he was warned by Mayer not to do so. Grueber, knowing that Mayer was asserting exclusive right to use the lakes, nevertheless persisted in making use of the lakes. There is no doubt that the use made of the lake by Smith and Grueber after the Mayer purchase was adverse, open, and notorious, but unfortunately, from Grueber’s point of view, was, at the most, of eleven years’ duration — not enough to satisfy the twenty-year period required in this state.

The use by Smith while a tenant of Ozaukee was with the permission of the landlord and was, hence, not adverse but subservient to Ozaukee’s title. The same is, of course, true of the permissive use made of the lakes by the employees of Ozaukee. These were uses consented to by the title owner. The reported uses by occasional fishermen and hunters were surreptitious, and rather than uses exercised notoriously, they were exercised with stealth.

The defendant Grueber has acquired no prescriptive rights to use the water.

While it may be surmised that the defendant hoped to make use of the water, yet it is apparent that he was not misled into believing that the owner of the lake bottom was consenting to such use. The defendant was advised by Mrs. Mayer in advance of the purchase that the Mayers asserted the rights to exclusive use of the lakes. There was no conduct by act, language, or silence that might have resulted in misrepresentation (see Crane v. Esmond (1934), 214 Wis. 571, 576, 253 N. W. 780). Other than the naked fact that the Gruebers purchased land abutting upon a lake, there was no reason for them to assume that they were also purchasing lake rights or were entitled to the status of a riparian owner. They were, in fact, expressly warned that the owner of the rest of the property did not accord them such status. While this does not in law bolster the title of Mayer, Grueber cannot in equity claim that Mayer should now be estopped to assert his claim (see 4 Tiffany, Real Property (3d ed.), p. 655, sec. 1235).

We therefore conclude that the purchaser of property abutting an artificial lake acquires no rights as a riparian owner by virtue of the land acquisition alone. Unless the vendor conveys the right to use the lake, the purchaser is precluded from either the right of access or use.

The right to use an artificial lake as well as the right to the bed of the lake are incidents of ownership that are vested exclusively in the owner of the fee upon which the lake is located. If he is to be divested of these rights, it can only be by deed or the eventual acquisition of these rights by prescription or adverse possession. The sale of abutting or contiguous property is a sale of the land alone. In the case before the court, we therefore hold that the plaintiff Mayer could lawfully block the defendant’s access to the lake, and the defendant Grueber could assert no rights beyond his property line — the shore of the artificial lake “A.”

By the Court. — Judgment affirmed.


source: Caselaw Access Project

author: Currie, C. J.

license: Public Domain

text:
    Bunkfeldt, Respondent, v. Country Mutual Insurance Company and others, Appellants.

      November 4

    November 30, 1965

      For the appellants there were briefs by Godfrey, God-frey, Neshek & Conway, attorneys, and Alfred L. Godfrey of counsel, all of Elkhorn, and oral argument by Thomas G. Godfrey.

    For the respondent there was a brief and oral argument by Morris Karon of Milwaukee.
   Currie, C. J.

It was conceded at the trial that plaintiff was free of negligence. The sole issue on this appeal is whether the trial court correctly adjudged defendant Durwood Erickson guilty of causal negligence as a matter of law by directing a verdict in plaintiff’s favor.

This case is unusual in that defendant Durwood Erickson did not testify and defendants put in no testimony. But plaintiff and the deputy sheriff who investigated the accident testified on the negligence issue.

Plaintiff testified as follows: He was driving north on Highway 57 at a point where the highway curved to the northwest. When he saw the truck the vehicles were about 250 feet apart and both traveling 45 miles per hour in their own traffic lanes. The truck turned suddenly into plaintiff’s lane and just as suddenly the truck turned back into its own lane. Right after that the truck again suddenly came into plaintiff’s lane and the trailer portion struck the front and left side of plaintiff’s car. No one was riding with plaintiff. The truck was loaded with baled hay.

The deputy sheriff, when he arrived after the accident, found the dual wheels of the tractor were completely off and had been dragged under the trailer portion of the truck. He talked to Durwood Erickson who stated that he could not control the truck. Erickson then wrote out a statement and gave it to the deputy sheriff. This statement is as follows:

“My truck started to swerve and I didn’t think nothing of it at first but then it started to go and I done my best to get it under control but their [sic] was nothing I could do about it and all of a sudden my truck axal [sic] started to go side ways and the car coming and I couldn’t get it stoped [sic] or steir [sic] it.”

Two of the photographs of the truck verify the deputy sheriff’s testimony that the dual wheels of the tractor had become completely separated from the vehicle. There is a complete absence of evidence to explain why the dual wheels of the tractor might have separated from the tractor prior to impact, and whether the defect, whatever it was, would have been observable by reasonable inspection.

Thus we have a situation where the jury could draw a reasonable inference that the dual wheels separated from the vehicle before the impact and that this mechanical failure is why the operator Erickson stated he could not control the vehicle when it went over the center line into the northbound traffic lane. The photographs also show that the baled hay was piled high on the semitrailer, and the jury could also have drawn the reasonable inference that the height of the load together with the speed of 45 miles per hour around the curve is what caused the driver to lose control.

Past decisions of this court have established the principle that the operator of a motor vehicle which crosses over into the wrong traffic lane and there collides with a vehicle proceeding in the opposite direction in its correct traffic lane gives rise to an inference of negligence which is not dissipated until such operator proves that he is without fault. Defendants contend that operator Erickson met this burden of proving himself free of negligence in invading the wrong side of the highway by the evidence which would permit the drawing of the inference that the invasion was due to mechanical failure of the vehicle, viz., the separating of the dual wheels.

The trial court disagreed with this contention because of the failure of defendants to adduce any evidence that the defect causing the dual wheels to separate was not discoverable by reasonable inspection during the course of maintenance. We are in full accord with this determination of the trial court.

Defendants argue that to impose upon the truck operator the burden of showing he was not negligent with respect to inspection and maintenance is to shift the burden of proving the operator’s negligence from the plaintiff and require defendants to prove the operator was not negligent. This argument is refuted by the following statement made in Voigt v. Voigt:

“We do not hereby revise the rule that an injured plaintiff has the burden of proving that the defendant driver was negligent. However, once having introduced evidence that the defendant driver crossed into the wrong lane, the defendant driver has the burden of going forward with evidence to prove that such invasion was non-negligent.”

Plaintiff met his burden of proof in establishing defendant truck driver’s negligence when he established that the truck invaded his traffic lane and collided with his automobile. Evidence which would permit the jury to find that such invasion was due to mechanical failure was insufficient to rebut the inference of negligence which arose from the truck’s invasion of plaintiff’s traffic lane. This is because a mechanical failure does not in itself establish freedom from negligence, any more than does evidence that a vehicle’s invasion of the wrong traffic lane was due to skidding on ice. In the one case there is the possibility that the mechanical failure was the result of faulty inspection or maintenance; in the other that the skidding was due to excessive speed or inattentive driving.

By the Court. — Judgment affirmed.

        Voigt v. Voigt (1964), 22 Wis. (2d) 573, 584, 126 N. W. (2d) 543; Goldenberg v. Daane (1961), 13 Wis. (2d) 98, 104, 108 N. W. (2d) 187; Kempfer v. Bois (1949), 255 Wis. 312, 314, 38 N. W. (2d) 483.

       For evidence sufficient to establish due care with respect to inspection and maintenance where motor vehicle accident is due to mechanical failure, see Pollack v. Olson (1963), 20 Wis. (2d) 394, 122 N. W. (2d) 426; Barber v. Gordon (1931), 111 Cal. App. 279, 295 Pac. 377.

        Supra, footnote 1, page 584.


author: Wilkie, J.

text:
    Strudell Asphalt, Inc., Appellant, v. Bernstein and others, Respondents.

      November 4

    November 30, 1965.

      For the appellant there was a brief by Rice & Ramsey and Edward S. A. Ramsey, all of Milwaukee, and oral argument by Edward S. A. Ramsey.

    For the respondents there was a brief by E. Ace Bernstein and Frederick P. Mett, both of Milwaukee, and oral argument by Mr. Mett.

   Wilkie, J.

The single issue on this appeal is: Did the matter submitted for arbitration include the contractor’s claim for all additional work performed on the whole shopping center and not just the specific items set forth in its complaint?

Respondents contend that “the matter” submitted to the arbitrators by stipulation and court order consisted of the allegations contained in the complaint, answer and counterclaim in the civil action together with the allegations made by letters to the arbitrators, and that the arbitrators could not consider anything not specified in those documents. In the complaint appellant made a claim for “asphalt surfacing in the area commonly known as the Pure Oil property” to the extent of $2,616.11. This claim was repeated, but not expanded, in the letter to the arbitrators. Respondents contend, and the circuit court ordered, that the arbitrators could not consider extra work beyond that done in the Pure Oil area and, in any event, could not allow more than $2,616.11 for extra work done.

Appellant contends that the arbitrators were free to consider the whole matter of extra work done by appellant on the whole shopping center and were not limited to the precise claims asserted in the complaint or its later letter to the arbitrators.

The appellant is correct. The arbitrators did not make an award on a matter not submitted to them. The contract between the parties required arbitration before litigation on any dispute. When appellant commenced its lawsuit, respondents countered by asserting their own claim and by demanding arbitration as agreed to. The court ordered that “the matter be submitted for arbitration.” To hold that the arbitrators were confined to the four corners of the complaint and answer would result in remaking the contract that requires all disputes to be arbitrated before a party takes legal action. Moreover, such an interpretation would be an unduly restrictive and technical construction of the breadth of the controversy which the arbitrators were expected to consider. What appellant was after was to be paid for the required work done on the project bearing in mind that it had actually installed over 31,000 square yards of pavement in the disputed area whereas the original contract was based on original drawings calling for 22,000 plus square yards. What respondents were after was to settle their claim that the work and material were deficient.

This is a statutory arbitration under ch. 298, Stats. The Wisconsin Arbitration Act does provide for court review of arbitrators’ awards and specifically spells out circumstances under which these awards may be vacated (sec. 298.10) or modified (sec. 298.11).

Sec. 298.11 (1) (b), Stats., provides:

“Modification of award. (1) In either of the following cases the court in and for the county wherein the award was made must make an order modifying or correcting the award upon the application of any party to the arbitration:
“(b) Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; ...”

In the very recent case of Reith v. Wynhoff this court, on appeal, modified an arbitrators’ award pursuant to this statute where the parties had agreed to arbitrate the issues in a lawsuit concerning the alleged defective construction of a multifamily residence and where the arbitrators had included in the award a sum for “inconvenience” contrary to the detailed terms agreed on by the parties to govern the arbitrators in determining diminished value.

In the instant case there were no such detailed terms governing the arbitrators. The scope of the matter referred to them was broad enough to include the appellant’s claims, contained in the arbitrators’ report. Significance must be attached to the fact that this was arbitration of a matter pursuant to a contract agreement calling for arbitration of all disputes prior to litigation; it was not pursuant to an agreement to arbitrate the issues in a lawsuit where there had been no preceding contract to arbitrate.

In Putterman v. Schmidt this court said:

“. . . it is not necessary that the subject be submitted by bill of particulars or with the same particularity required in pleadings. It is enough if a common intent as to what was submitted appears with reasonable certainty. 5 Corp. Jur. p. 36. If what was submitted appears by manifest implication it is as certain as if positively expressed. Rixford v. Nye, 20 Vt. 132. Ambiguity if any may be removed by parol.”

The common intent here was to arbitrate appellant’s claims for the extra work done and respondents’ claims of defective materials and performance. This “matter” was broader than the provisions of the pleadings or the contents of the letters to the arbitrators dated December 14, 17, 21, and 26, 1964. It follows that the award was on a matter submitted for arbitration and, therefore, the award should not have been modified.

The Wisconsin Arbitration Act also provides that an award can be vacated. Sec. 298.10 (1) (d), Stats., provides :

“(1) In either of the following cases the court in and for the county wherein the award was made must make an order vacating the award upon the application of any party to the arbitration:
“ (d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

Thus, this was not a case for the exercise of the court’s authority to vacate the award. Although the trial judge used language in his order stating that the arbitrators “exceeded their powers” and “were not vested with the authority,” there was no contention in the trial court and none here that the arbitrators exceeded their powers or exercised authority not vested in them.

By the Court. — Order reversed, and cause remanded for reinstatement of arbitrators’ award.

        Madison v. Frank Lloyd Wright Foundation (1963), 20 Wis. (2d) 361, 122 N. W. (2d) 409.

       (1966), 28 Wis. (2d) 336, 137 N. W. (2d) 33, 37.

       (1932), 209 Wis. 442, 447, 245 N. W. 78.


author: Gordon, J.

text:
    City of Milwaukee, Respondent, v. Hoffmann, Appellant.

      November 4

    November 30, 1965.

      For the appellant there was a brief and oral argument by Robert J. Hoffmann of Milwaukee, pro- se.

    For the respondent there was a brief by John J. Fleming, city attorney, and Patrick J. Madden, assistant city attorney, and oral argument by Mr. Madden.

   Gordon, J.

So far as this meager record permits, we will examine the two theories which were relied upon by the county court and rejected by the circuit court. First, the county court ruled that sec. 101-135 of the Milwaukee Code of Ordinances was unenforceable by reason of the failure of the city to comply with the sign-posting provisions of sec. 349.13 (1), Stats. Secondly, the county court determined that such ordinance was unconstitutional because it was designed to produce revenue.

The Posting of Signs.

Sec. 349.13 (1), Stats., provides in part that “no prohibition, limitation or restriction on parking imposed pursuant to this section is effective unless official traffic signs or markers or parking meters have been placed or erected indicating the particular prohibition, limitation or restriction.”

In its ruling that the city had failed to comply with this provision of the statutes, the county court noted that “no signs were erected in the block or on the highway in question where this defendant parked his automobile.” The city urges that sec. 349.13 (1), Stats., does not govern where there is a general restriction on overnight parking which is applicable to an entire city. The circuit court declined to pass on this issue, noting that “the question is not squarely presented from the facts adduced at the trial.”

While the circuit court also relied on the fact that Mr. Hoffmann “at all times knew of the existence of the ordinance and its application to him at the time of the admitted excessive parking without permit,” we believe that the circuit court’s ruling is correct because the record is vague on this issue.

The police officer who ticketed the defendant’s vehicle testified as follows on this question:

“Q. Officer, are you familiar with the fact that the City of Milwaukee has posted various locations on the streets indicating the restrictions on night parking? A. Yes, sir.
“Q. You are familiar with that? A. I have seen a number of them.
“Q. Yes, and they cover the particular violation for which you issued the ticket to the defendant? A. As far as I know, yes, sir.”

When the defendant, Mr. Hoffmann, was called to testify, he was asked, “Have you seen these signs that the officer speaks of?” He responded, “No, I haven’t,” and then added, “I haven’t seen the signs, I was told.”

The only other reference to the posting of traffic signs was contained in a statement by Mr. Hoffmann when the county court asked if there was anything else he wished to say. At that point, Mr. Hoffmann stated that he had called the police station and told them that “there is no signs up there.”

This court has said that an “ordinance is entitled to every presumption in favor of its validity.” Highway 100 Auto Wreckers v. West Allis (1959), 6 Wis. (2d) 637, 646, 96 N. W. (2d) 85, 97 N. W. (2d) 423. In Dyer v. City Council of Beloit (1947), 250 Wis. 613, 616, 27 N. W. (2d) 733, we stated with reference to an ordinance of a municipal corporation:

“. . . every intendment is to be made in favor of the lawfulness and reasonableness of such ordinance.”

Accordingly, it must be presumed that sec. 101-135 of the Milwaukee Code of Ordinances was valid and was regularly placed into operation. The challenge to the regularity contained in this record is so scant that a finding of invalidity on the part of the trier of fact would be against the great weight and clear preponderance of the evidence.

The Challenge to Constitutionality.

Sec. 101-135 of the Milwaukee Code of Ordinances had been in effect for approximately fourteen years. The determination of the county court that the ordinance was unconstitutional was made at a summary proceedings; one litigant was not even represented by counsel, and the other side protested that it was not ready for trial. The court announced its decision without the benefit of briefs and without the rendition of a written opinion. There is applicable to the county court’s determination of unconstitutionality the admonition stated by this court in State v. Stehlek (1953), 262 Wis. 642, 645, 56 N. W. (2d) 514:

“The authorities are to the effect that unless it appears clearly beyond a reasonable doubt that the statute is unconstitutional, it is considered better practice for the court to assume the statute is constitutional, until the contrary is decided by a court of appellate jurisdiction. That is especially true where, as in this case, the statute has been in effect for nearly eight years, and has been enforced in innumerable cases.”

In reviewing the county court’s order, the circuit court upheld the authority of the city to enact an ordinance which restricts night parking on certain streets even though such ordinance also requires the purchase of permits for such parking. The circuit court considered the ordinance a reasonable exercise of the city’s police power, and it noted that the validity of the ordinance had been upheld in an earlier ruling made by the circuit court for Milwaukee county in 1954 (Toepfer v. City of Milwaukee, Case No. 244-011).

There was no evidence of any sort adduced at the trial regarding Mr. Hoffmann’s claim that the ordinance is unconstitutional. Our ruling, therefore, must be based upon the language of the ordinance in relation to the state and federal constitutions. Mr. Hoffmann has not referred this court to any specific constitutional provisions, and we presume that he is relying upon the Fourteenth amendment to the United States constitution, sec. 1, art. I of the Wisconsin constitution, or sec. 1, art. VIII of the Wisconsin constitution.

The city accepts the proposition that the police power must not be employed for the primary purpose of raising revenue but rather must be designed to promote the public welfare. The city urges, however, that the objective of the instant ordinance is consonant with the city’s prerogatives under the police power.

In our opinion, the city of Milwaukee, pursuant to sec. 62.11 (5), Stats., has the authority to regulate parking on city streets. Sec. 62.11 (5) provides as follows:

“Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.”

In creating sec. 101-135, we do not believe that the city has attempted to enact a general revenue measure but has instead invoked a reasonable technique for the regulation of night parking on its streets. In regulating such parking, the ordinance accomplishes important public goals which are consistent with the city’s obligation under the police power to protect the health, safety, and welfare of its citizenry. The charging of a reasonable fee does not corrupt the otherwise constitutional purposes of the ordinance.

This court has previously examined the question of the constitutional propriety of imposing license fees. In State ex rel. Attorney General v. Wisconsin Constructors (1936), 222 Wis. 279, 289, 268 N. W. 238, appears the following:

“The distinction between a tax and an imposition under the police powers is well stated in 4 Cooley, Taxation (4th ed.), p. 3511:
“ The distinction between a demand of money under the police power and one made under the power to tax is not so much one of form as of substance. The proceedings may be the same in the two cases, though the purpose is essentially different. The one is made for regulation and the other for revenue. If the purpose is regulation the imposition ordinarily is an exercise of the police power, while if the purpose is revenue the imposition is an exercise of the taxing power and is a tax. If, therefore, the purpose is evident in any particular instance, there can be no difficulty in classifying the case and referring it to the proper power. . . .
“(p. 3513) ‘Only those cases where regulation is the primary purpose can be specially referred to the police power. If revenue is the primary purpose and regulation is merely incidental the imposition is a tax; while if regulation is the primary purpose the mere fact that incidentally a revenue is also obtained does not make the imposition a tax, although if the imposition clearly and materially exceeds the cost of regulation, inspection or police control, it is generally held to be a tax or an illegal exercise of the police power. . . ”

This problem was also considered in Tesch v. Board of Deposits (1941), 237 Wis. 527, 532, 297 N. W. 379, where this court stated as follows:

“Ch. 34, Stats., does not create a tax, but an exaction made under the police power. State ex rel. Atty. Gen. v. Wisconsin Constructors, 222 Wis. 279, 289, 268 N. W. 238. Hence there can be no claim that it violates the uniformity of taxation clause in the Wisconsin constitution. (Sec. 1, art. VIII.) The constitutional tests are whether the action was in a legitimate field for the exercise of police power to promote the public welfare, and whether the means bear a reasonable relation to that end. State ex rel. Carter v. Harper, 182 Wis. 148, 152, 196 N. W. 451; Purity Extract Co. v. Lynch, 226 U. S. 192, 201, 33 Sup. Ct. 44, 57 L. Ed. 184.”

A similar approach was stated by the supreme court of Tennessee in State v. Anderson (1920), 144 Tenn. 564, 574, 234 S. W. 768, where the court said:

“ ‘Thus when the legislature desires to place some limit upon the number of people who will engage in a particular occupation, which if carried on without restraint as to numbers will be injurious to the public welfare, or wishes to restrict the frequency with which some act will be performed, without prohibiting it altogether, it often imposes a charge or fee upon those engaging in the occupation or performing the act. If the primary purpose of the legislature in imposing such a charge is to regulate the occupation or the act, the charge is not a tax, even if it produces revenue for the public.’ ”

By the Court. — Order affirmed.


author: Beilfuss, J.

text:
    Bass, Plaintiff in error, v. State, Defendant in error.

      November 5

    November 30, 1965.

      For the plaintiff in error there was a brief and oral argument by Griffin G. Dorschel of Madison.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La* Follette, attorney general, and William A. Platz, assistant attorney general.
   Beilfuss, J.

The sole issue is whether the plaintiff in error did take the motor vehicle without the consent of the owner within the meaning of sec. 943.23, Stats.

Sec. 943.23, Stats., provides as follows:

“Operating vehicle without owner’s consent. Whoever intentionally takes and drives any vehicle without the consent of the owner may be fined not more than $1,000 or imprisoned not more than 5 years or both.”

The plaintiff in error, the defendant Bass, contends that he had limited permission to use the car and that, therefore, there was not a taking without the consent of the owner. His argument is that if you have lawful possession in the first instance you cannot be convicted of a crime wherein one of the essential elements is a taking without the consent of the owner.

As support the defendant cites the history of the statute. In its original form in 1909 it did not require a taking, and violation was a misdemeanor. [Sec. 1636-52m (1909); ch. 254, Laws of 1909.] The statute was amended in 1913 to insert “takes” and to make violation a felony. [Sec. 1636-52m (1913); ch. 690, Laws of 1913.] The original bill in 1913 would have made appropriation of an automobile to one’s own use larceny punishable up to fifteen years in prison. The senate judiciary committee amended the original bill to the form which passed. See Senate Journal 1913: Bill 389, S., and Substitute Amendment, No. 1, to Bill 389, S. The statute today, for the purpose of discussing the issue at hand, is substantially the same as the 1913 statute.

The legislative history does not strengthen the defendant’s argument; at most it fortifies the state’s position that the taking of an automobile without the consent of the owner is a separate crime and is not synonymous with larceny.

“. . . Sec. 343.18, Stats., [now sec. 943.23] under which the present prosecution was commenced, provides: ‘Any person who shall take, use and operate any automobile, motorcycle, or other similar motor vehicle upon any public highway of this state without the consent of the owner thereof shall, upon conviction thereof, be punished,’ etc. The crime thus defined by sec. 343.18 is not a lesser degree of the crime of larceny. It is a distinct offense created by statute, and an offense not necessarily included in the crime of larceny. To constitute the offense described by sec. 343.18 it is necessary that the automobile taken without the consent of the owner shall be operated upon a public highway of this state. This is no essential element of the crime of larceny, . . .” Eastway v. State (1926), 189 Wis. 56, 58, 206 N. W. 879.

The defendant Bass relies upon the decision of this court in State v. Mularkey (1928), 195 Wis. 549, 218 N. W. 809. In the Mularkey Case the defendant rented a car from the owner, drove it beyond the area specified, did not return it at the time designated and, in fact, abandoned the car. The Mularkey opinion states, at page 551:

“We are in accord, in the main, with such a construction of a statute of this kind, and hold, therefore, that the mere unauthorized or extended use of such a vehicle by one who has lawfully obtained the consent of the owner to its taking for use and operation upon the public highway is not a violation of this statute; and that the substance of the offense aimed at by its provisions is the obtaining of the possession in the first instance without the consent of the owner.”

The Mularkey Case must be distinguished upon its facts. In that instance the defendant acquired possession of the vehicle by express permission of the owner. His use of the vehicle went beyond the area defined by the rental contract. Mularkey undoubtedly violated the terms of the contract, but his original possession and use was with the express knowledge and consent of the owner. The taking was not unlawful even though the use may have been.

In this instance the taking was not by the express consent of the owner. The owner Stern did not talk to Bass — he did not even know him. Nor did the station owner Abner, or his other employee, White, give any express consent to take the car. The decision to take the car from the station premises for his personal purposes was solely the determination of Bass. Clearly, this act was done without the knowledge or consent of any other person, including the owner.

The fact that Bass was directed by Abner through White to put the vehicle in the station overnight does not, in our opinion, constitute implied permission to use the car. Mere permission or even instruction to move the vehicle from one location on the filling-station premises to another location on the same premises cannot, under any reasonable interpretation, be construed as implied consent to take the vehicle from the station premises to an unknown and unlimited destination on an errand completely nonbeneficial to the owner and completely unrelated to the purpose for which possession of the vehicle was given to the station owner.

In 7 Am. Jur. (2d), Automobiles and Highway Traffic, p. 849, sec. 304, it is stated:

“The offense of taking, using, or operating a motor vehicle without the owner’s consent may be committed by one whose original possession of the vehicle was lawful, but who subsequently uses the vehicle for his own purposes without the consent of the owner. For example, the offense may be committed by an employee of the owner of a motor vehicle in using the vehicle for his own purposes not connected with the purposes for which the vehicle had been entrusted to him or in using the vehicle contrary to the instructions of the owner.”

The gravamen of larceny is an intention to permanently deprive the owner of possession of his property; such an intention is not an essential element of a statute prohibiting the operation of a motor vehicle without the owner’s consent. In many, if not most, instances of taking and using an automobile without the consent of the owner, there is not an intention to permanently deprive the owner of possession or, if in truth, there is such intention, proof of the same is most difficult. Statutes prohibiting the taking and use of automobiles without the owner’s consent are frequently referred to as “joyriding statutes.” The evils aimed at by these statutes are (1) the owner is, temporarily at least, deprived of the use of his vehicle, (2) the vehicle is frequently abused and damaged, and (3) not infrequently the vehicle is used in such a manner as to cause danger and injury to other members of the public.

We agree with the trial court wherein it concluded: “I am satisfied, from the defendant’s own testimony and the testimony of the other witnesses in the case, that the State has established that there was an intentional taking of this car and an intentional driving of it all without the consent of the owner.”

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       See also State v. Williams (1943), 74 Ohio App. 370, 59 N. E. (2d) 58.


text:
    Drane, Plaintiff in error, v. State, Defendant in error.

      November 5

    November 30, 1965.

      For the plaintiff in error there was a brief and oral argument by Henry L. Hillard of Milwaukee.
    For the defendant in error the cause was argued by Richard B. Surges, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O’Connell, district attorney.
   Wilkie, J.

The sole question presented is whether there is sufficient evidence to support the court in finding defendant guilty of second-degree murder. Defendant does not deny shooting Williams. He argues that since there was evidence that Williams threatened him and advanced toward him with a knife, he was guilty, at best, of manslaughter pursuant to sec. 940.05 (1), (2), or (4), Stats. In essence, defendant contends that Williams just turned on him and this constituted “reasonable, adequate provocation” within the “heat of passion” requirement of sec. 940.05 (1). Or in the alternative, defendant contends that his own testimony, corroborated by Mrs. Metcalfe, that Williams advanced with a knife in his hand, and the statements of Mrs. Metcalfe and Hodnett that Williams had warned defendant to quit bothering his wife, is a sufficient showing of “self-defense” as contemplated by sec. 940.05 (2).

However, there was ample evidence in the record that defendant himself had instigated the fracas by his use of crude language and his threat to Williams and that Williams did not have a knife. The case turns entirely on the credibility of the witnesses and the weight to be given to their testimony. Inasmuch as this determination is a function lying peculiarly within the province of the trier of fact, the trial court could have disregarded the testimony of Hodnett, defendant, and Mrs. Metcalfe, even assuming, but not deciding, that this evidence was sufficient to have actually shown “heat of passion” and/or “self-defense” if believed. On this record it cannot be said that the evidence supporting the second-degree murder conviction is “inherently or patently incredible” as a matter of law.

By the Court. — Judgment affirmed.

       “940.05 Manslaughter. Whoever causes the death of another human being under any of the following circumstances may be imprisoned not more than 10 years:
      “(1) Without intent to kill and while in the heat of passion; or
      “(2) Unnecessarily, in the exercise of his privilege of self-defense or defense of others or the privilege to prevent or terminate the commission of a felony; or

        “(4) Because the pressure of natural physical forces causes such person reasonably to believe that his act is the only means of preventing imminent public disaster or imminent death to himself or another.”
      The complete absence of “natural physical forces” renders sec. 940.05 (4), Stats., inapplicable in this case under any view of the evidence. See Comment to sec. 839.47, Stats., Wisconsin Legislative Council, 1953 Report, Vol. V, Criminal Code.

        Brook v. State (1963), 21 Wis. (2d) 32, 42, 123 N. W. (2d) 535; Zenou v. State (1958), 4 Wis. (2d) 655, 666, 91 N. W. (2d) 208.

        Gauthier v. State (1965), 28 Wis. (2d) 412, 137 N. W. (2d) 101; Brown v. State (1965), 28 Wis. (2d) 383, 137 N. W. (2d) 53; Hemmis v. State (1964), 24 Wis. (2d) 346, 129 N. W. (2d) 209.

       “940.02 Second-degree muedek. Whoever causes the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not less than 5 nor more than 25 years.” This is first-degree murder without the intent to kill. Brook v. State, supra, footnote 2; Zenou v. State, supra, footnote 2.

        Gauthier v. State, supra, footnote 3, 137 N. W. (2d) at page 104.


author: Heffernan, J.

text:
    Eskra, Plaintiff in error, v. State, Defendant in error.

      November 5

    November 30, 1965.

      For the plaintiff in error there was a brief and oral argument by Bruce Gillman. of Madison.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Michael Torphy, district attorney of Dane county.

       Motion for rehearing denied, without costs, on February 1, 1966.

   Heffernan, J.

Eskra was arrested in the early morning hours of July 11, 1964, by the police of the village of Monona. An automobile was discovered with a number of TV sets and radios plainly visible within it. The officer checked a nearby TV store and found evidences of a break-in. A search of the vicinity revealed the defendant, who was immediately arrested. Later in the day, a warrant to search his car was issued. Eskra was brought before the magistrate on the afternoon of July 13th. The complaint was read to him, and he was thereupon formally charged with two felonies, the entry of a building with intent to steal contrary to sec. 943.10, Stats., and the felonious theft of television and radio sets at the same address in a value in excess of $100, but less than $2,500. He was advised that he had the right to counsel, and that, if he was indigent, counsel would be appointed for him if he desired. Eskra stated that he desired counsel. The court entered a plea of not guilty to each count of the complaint, set bail, and advised the deputy district attorney to determine whether or not the defendant was indigent. During the colloquy regarding the appointment of counsel, Eskra put a motion before the court to suppress and dismiss on the ground of the illegal search and seizure of his car. This motion was taken under advisement by the judge. Eskra stated that he had $80 in cash and that he could obtain more. The judge advised him that he could secure his own counsel if he wished and had sufficient funds. The preliminary examination was set for July 21st.

The defendant on that date appeared before the court without counsel and advised the judge that, although he had talked to an attorney, he did not have sufficient funds to retain him. The court thereupon advised Eskra that, if he was indigent, counsel would be appointed for him. The deputy district attorney advised the court that, “. . . we can’t proceed on a preliminary [hearing] until he has counsel unless he waives preliminary hearing.” The deputy district attorney advised the court that the state had material witnesses in the courtroom and was prepared to proceed with the hearing. The judge, however, then stated he would continue the matter for ten days so that the prisoner could secure counsel.

At this point, the record shows the following:

“Mr. McCallum: One moment, Your Honor. (Addressing defendant Eskra) What did you say?
“(Discussion between Mr. McCallum and defendant Eskra off the record)
“Your Honor, Mr. Eskra just requested that he would like to talk to me for a few minutes. If we could have maybe a five minute adjournment or so I would be glad to talk to him.
“The Court: I have another matter at 2:80. I will recess and you can come back in after the 2:30 hearing.
“ (Recess taken)
“LATER:
“(Mr. McCallum, Deputy District Attorney, and defendant Benjamin C. Eskra present in the courtroom)
“The Court: Mr. McCallum?
“Mr. McCallum: Your Honor, at Mr. Eskra’s request, in the last five or ten minutes or so he and I have had a conference in the conference room off the courtroom here, and he indicated to me he wanted to know what was transpiring and if it was his trial, and I indicated to him it was not, that it was a preliminary hearing, and that the . purpose of a preliminary hearing was to determine first if a crime was committed and, secondly, if there was probable cause to believe that he committed that crime, and if the Court found these two elements that he would then be bound over to circuit court for trial. The procedure was, in essence, what we had discussed. He has indicated to me that he does not want to proceed to trial. He further indicated to me that he wants to change his plea at this time. I was asked if I had a recommendation or did not and I indicated to him that I would not make any statements to him one way or the other regarding what my position would be on it.
“Have I stated it substantially correct, Mr. Eskra?
“Defendant Benjamin Eskra: Yes, sir.
“Mr. McCallum: And he indicated to me he does at this time want to make a statement to the Court.
“The Court: Well, first of all, Mr. Eskra, do you — is it your desire to change your plea?
“Defendant Benjamin Eskra: Yes, sir.
“The Court: Your plea at the present time is not guilty. What do you wish to change it to ?
“Defendant Benjamin Eskra: Guilty.
“The Court: All right. You are pleading guilty to the charges listed in the complaint, and on your plea of guilty I adjudge you guilty.”

The defendant was advised that he would have to plead to an information. The deputy district attorney had stated that, although the formal information had not been prepared, he would read the provisions of the complaint into the record as the information. Thereupon the defendant waived the reading of the information and pleaded guilty. He was adjudged guilty upon his plea to the information and sentencing was deferred until the completion of a presentence investigation.

On August 5, 1964, Eskra was brought before the court for sentencing. He was at this point represented by court-appointed counsel.

Counsel replied in the affirmative in response to the court’s question, “You know his record and you are familiar with this incident Mr. Eskra has pleaded guilty to?” Counsel was then asked, “Are you satisfied . . . that Mr. Eskra’s plea of guilty was made by him freely?” To this, counsel also replied, “Yes.” When asked if there was any irregularity in the proceedings, counsel stated:

“No. The only thing, I am satisfied the evidence against him was — that they had against him — the stuff that was obtained was done without a warrant prior to the time they did get a warrant. I don’t know if the second search was curing the first one or not. But he is willing to throw himself on the mercy of the Court. I do feel that a charge of grand theft and burglary are cumulative.”

Later in the sentencing proceedings, defense counsel stated :

“But as I said, the defendant is willing to plead guilty and throw himself on the mercy of the Court; and I feel that that defense, if valid, is not one that can be raised at this time in view of the multiple confessions the defendant has made. He freely acknowledges his guilt and is sorry for the commission of the crime.”

Eskra was then given, concurrent sentences of five years on the burglary charge and three years on the theft charge. The judge in sentencing him pointed out that Eskra had a long criminal record, but he also pointed out that, after he had served the minimum time, he would not object to his parole.

Upon the defendant’s application to this court, different counsel was appointed for Eskra. The case is before us on two writs of error: One to review the judgment, the other to review the denial of defendant's motion to withdraw his guilty plea.

Eskra insists that the acceptance of a plea of guilty without presence and prior assistance of counsel constitutes a denial of the defendant’s rights under the Sixth amendment. The argument is that the defendant cannot intelligently plead guilty without counsel to assist him in determining the appropriateness of such a plea, and that, in addition, it is the function of counsel to use the bargaining power of a guilty plea to get the “best deal for his client.”

It is also undoubtedly true that before accepting a plea of guilty, it is necessary, particularly when the defendant is not represented by counsel, to make sure that accused understands the nature of the crime with which he is charged and the range of punishments. While the court herein did advise the defendant of his right to counsel at state expense, he failed to explore the other elements suggested by State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 494, 126 N. W. (2d) 91. See also State ex rel. Kline v. Burke (1965), 27 Wis. (2d) 40, 45, 133 N. W. (2d) 405. In this case the accused was not apprised of the range of punishments to which a plea of guilty might expose him, nor whether any inducements or promises impelled his plea of guilty. There was no attempt to determine the accused’s intelligence or education. Nor was the accused alerted to the fact that a lawyer might discover defenses or mitigating circumstances not immediately apparent to the accused.

The trial judge failed to make the factual determination that this court requires as a preliminary to the valid waiver of counsel. The plea of guilty is not to be construed as a waiver of all constitutional rights. State ex rel. Drankovich v. Murphy (1946), 248 Wis. 433, 22 N. W. (2d) 540.

Had the judge thereupon proceeded to sentence Eskra, the validity of the conviction would be in substantial doubt in view of the previous decisions of this court and of the United States supreme court. State ex rel. Burnett v. Burke, supra, and Von Moltke v. Gillies (1948), 332 U. S. 708, 68 Sup. Ct. 316, 92 L. Ed. 309.

However, the judge saw fit to appoint counsel to appear for Eskra at sentencing. We conclude that the right to complain of the errors at the time of arraignment and plea are waived by the conduct of counsel subsequently appointed.

The United States supreme court has said in an analogous case:

“All of this demonstrated to the satisfaction of the court below that even though petitioner may not have had counsel at the beginning, he had counsel in ample time to take advantage of every defense which would have been available to him originally. We think the record shows that petitioner actually had the benefit of counsel.” Canizio v. New York (1946), 327 U. S. 82, 86, 66 Sup. Ct. 452, 90 L. Ed. 545.

We recognize that counsel cites eases that arrive at a contrary result. Anderson v. North Carolina (W. D. D. C. N. C. 1963), 221 Fed. Supp. 930; Palumbo v. New Jersey (3d Cir. 1964), 334 Fed. (2d) 524; Shupe v. Sigler (D. C. Neb. 1964), 230 Fed. Supp. 601. We consider these readily distinguishable on their facts.

The instant case is markedly different from any of those referred to by counsel in that the defendant in open court took the initiative of asking permission to talk to the deputy district attorney and to drive his own bargain. The transcript of the postconviction evidentiary hearing reveals that the deputy district attorney answered the defendant’s questions and did so in the presence of two witnesses, both of whom agreed that no promises or coercion had been used to induce the plea of guilty. After the conference, the deputy district attorney dictated into the record his understanding of what occurred at the conference, and the defendant agreed with the deputy district attorney’s statement. The affirmative statement was entered into the record that the deputy district attorney made no promise whatsoever in regard to a possible sentence. It was made clear that the sentencing function was that of the judge.

Contrasted to this situation, the Anderson and Shupe Cases involved situations where the defendants were persuaded to change their pleas at á time and place where they were clearly unable to assume any initiative in bargaining, and where at the very least the conduct of the prosecution was grossly reprehensible. In Anderson, the defendant was in jail awaiting trial on a charge that carried the death penalty. He was represented by counsel, but nevertheless the prosecutor saw fit to persuade the defendant to enter a plea of guilty to a lesser charge in the absence of the accused’s attorney. In Shwpe, the deputy county attorney initially secured an incriminating statement from the defendant while he lay on an operating table severely wounded and awaiting surgery. It was admitted that the county attorney’s office took the initiative in attempting to persuade the petitioner, without the presence of counsel, that he had no defense and that he should plead guilty. In addition, the court found that the district attorney promised a reduced sentence if the accused pleaded guilty.

In Palumbo v. New Jersey (3d Cir. 1964), 334 Fed. (2d) 524, the arraignment resolved itself into a comedy of errors. The court commenced the proceedings assuming that an Attorney Armstrong represented Palumbo. Through a misunderstanding, although Armstrong stated he did not represent Palumbo, the court nevertheless proceeded with the hearing and accepted the withdrawal of the former plea of not guilty to the indictment and accepted a plea of guilty. Attorney Armstrong did attempt to protect the rights of Palumbo to the extent of insisting that questions be asked assuring the volun-tariness of the plea. However, the record makes it equally clear that he was not acting as counsel for the accused. More important, insofar as the application of Palumbo to this case is concerned, there is no evidence that thereafter either Palumbo or subsequent counsel, if in fact one was appointed, attempted as a matter of strategy or otherwise to rely on the plea of guilty.

In the instant case, however, Eskra’s counsel at the time of sentencing saw fit to take advantage of the guilty plea made at arraignment without counsel.

Eskra’s counsel was closely questioned by the judge and although he stated that there was a possibility that the search of the automobile was questionable, he elected to advise the court that his client wanted to plead guilty and throw himself on the mercy of the court. Counsel at sentencing pointed out that his client had cooperated with the police and district attorney’s office and freely acknowledged his guilt, and asked that this cooperative attitude be considered by the judge in sentencing. Counsel advised the court that he had read the defendant’s FBI report (apparently the FBI arrest record) and was aware of his client’s past record. He no doubt knew that, on the basis of that record, there existed the possibility of a severe sentence. He elected to forego any attempt to suppress the evidence that it is now alleged was illegally obtained. He ratified his client’s plea of guilty and relied on the mercy of the court. These tactics were evidently successful, since the possible penalties of the two felonies combined was fifteen years imprisonment and $5,000 fine. The result of his strategy was concurrent sentences of five years on one count and three years on the other, and the declaration by the judge that he would not oppose an early parole.

Whatever constitutional rights the accused had to withdraw his plea were waived by this calculated choice made by his counsel. The supreme court of the United States in Henry v. Mississippi (1965), 379 U. S. 443, 451, 85 Sup. Ct. 564, 13 L. Ed. (2d) 408, held that a constitutional right may be waived by “counsel’s deliberate choice of strategy.” We have held in State ex rel. Goodchild v. Burke (1965), 27 Wis. (2d) 244, 133 N. W. (2d) 753, and State v. Strickland (1965), 27 Wis. (2d) 623, 135 N. W. (2d) 295, that waivers made by counsel are binding upon the client.

The crucial facts of this case are strikingly similar to those of State v. Strickland, supra. In that case, as here, the accused was allowed to plead without counsel. As in the instant case, the perfunctory admonitions to the accused prior to the acceptance of the plea were insufficient to meet the standards of State ex rel. Burnett v. Burke, supra. In each case, counsel was present for sentencing and chose not to raise any of the constitutional defects that were present at arraignment.

As we said in Strickland:

“When he was retained to represent defendant after the latter’s arraignment a choice of two alternative courses was open to him. One was to move to withdraw or change the plea of guilty because of any defects, constitutional or otherwise, in the arraignment proceedings. The other was to utilize the existing guilty plea and urge it as a reason for leniency. Counsel chose the latter and we conclude this was an effective waiver of the right to now raise the objections here made that defendant did not intelligently waive counsel and understandingly enter his plea of guilty.” State v. Strickland (1965), 27 Wis. (2d) 623, 630, 135 N. W. (2d) 295.

We conclude that this language is apropos the facts at hand, and deem the outcome of this to be ruled by the Strickland decision.

The waiver of the objections to the arraignment and the ratification of the plea of guilty also foreclose any further objection that the accused may have had to the allegedly unlawful search of his automobile.

“As the plea itself provides the basis for conviction no evidence need be introduced, and the right to a trial free of evidence illegally obtained is forfeited.” Hawkins v. State (1965), 26 Wis. (2d) 443, 448, 132 N. W. (2d) 545.

In addition to the points discussed above, it is also contended that defendant did not have effective counsel at sentencing. The record belies such conclusion. As pointed out elsewhere in this opinion, counsel in the lower court successfully avoided the imposition of consecutive sentences, and succeeded in having the court sentence concurrently for much less than the maximum. While present counsel no doubt believes that at the very least the conduct of counsel in the lower court constituted a grevious tactical error, it is not for this court to judge the performance of counsel on the basis of hindsight or in terms of the roseate expectations of the accused. Suffice it to say that the performance of the counsel below far exceeded the minimum standards that this court has set. As we said in Pulaski v. State (1964), 23 Wis. (2d) 138, 148, 126 N. W. (2d) 625:

“Unless the representation of counsel is so inadequate and of such low competency as to amount to no representation, a new trial cannot be granted on that ground.”

The federal courts use a similar test:

“. . . allegations must disclose a performance by counsel so incompetent as to make the trial ‘a farce or a mockery of justice.’ ” Rivera v. United States (9th Cir. 1963), 318 Fed. (2d) 606, 608.

No such allegations have been made, nor would they be appropriate.

In closing, we also take note of the fact that the county judge and the attorneys in the case below erroneously referred to the initial appearance before the magistrate as an arraignment. As we said in Goodchild, supra, at page 252:

“The term ‘arraignment’ is reserved for an appearance in a court having jurisdiction to take a plea to an information or indictment that has been filed and to which the court asks the defendant to plead.”

The very definition of the word, “arraign,” points out its function:

“Law, to call or set (a prisoner) at the bar of a court to answer to the charge of an indictment. In the technical common-law procedure in arraigning a prisoner he is called to the bar by his name; the indictment is read to him; and he is asked, ‘How say you (A B), are you guilty, or not guilty?’ The next step is judgment if he confesses guilt; or entry of his plea if he does not.”

There is no doubt that the Federal Eules of Criminal Procedure more clearly spell out the function of the initial appearance than do the Wisconsin statutes. The function is the same whether under the federal procedure or under the procedure of the state of Wisconsin. The chief purpose is to bring the accused without delay before a magistrate with the power to commit a person charged with the offense. The functions of the magistrate at that hearing are limited to formally charging the defendant with the offense for which he has been arrested, informing him of his right to counsel and of his right to have a preliminary examination, and setting bail. It is also suggested that the magistrate advise the defendant that he is not obligated to make any statement whatsoever and that any statement made can be used against him. Moreover, the magistrate shall not ask for nor accept any plea. This is a function reserved to a court having the jurisdiction to accept the plea and to sentence for the offense. We are aware of the fact that the proceedings in this case were prior to our statements on the same subject in Goodekild. We are also aware of the fact that the Wisconsin statutes involving criminal procedure are vague and confusing in that they intermix the procedure to be used on felonies with that to be used on misdemeanors.

It is the understanding of this court that the judicial council is presently undertaking a study to clarify pretrial criminal procedure. In the meanwhile, we suggest that the interests of justice will he served if lawyers, judges, and laymen clearly understand that the term, “arraignment,” refers not to the initial appearance before a magistrate, but only to the appearance for the purpose of reading and filing, and pleading to, the information in a court having jurisdiction to accept such a plea and to impose sentence.

By the Court. — Judgment and order affirmed.

       Webster’s New International Dictionary (2d ed., 1953).

       1963 Federal Rules of Criminal Procedure, Rule 5.


text:
    Jackson, Plaintiff in error, v. State, Defendant in error.

      November 5

    November 30, 1965.

      For the plaintiff in error there was a brief and oral argument by Wayne E. Rowlee of Milwaukee.
    For the defendant in error the cause was argued by David E. Leichtfuss, first assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O’Connell, district attorney.
   Currie, C. J.

The issues presented on this writ of error are:

(1) Were defendant’s constitutional rights violated by the means used by the police officers to gain admission to arrest her?

(2) Was the arrest valid?

(3) Was there an illegal search and seizure?

(4) Was there sufficient credible evidence to prove defendant guilty beyond a reasonable doubt?

Means Used to Gain Admission and Validity of Arrest.

The first two issues are so closely interrelated that they will be considered together. The arrest took place about 1 a. m. in the one-room apartment of one William Edwards. This apartment is located in a two-story frame building at 2228 North First Street in the city of Milwaukee, and is No. 1A in the first story of the building. The apartment has but one door which is the first one on the right as one enters the central hallway from the outside entrance. The building sits back about 15 feet from the public sidewalk, steps lead up to a porch, and the front entrance is gained from this porch.

Earlier in the evening Detectives Randa and Thelen of the vice squad of the Milwaukee police department read an entry in the department’s daybook. This entry stated:

“ ‘Information from Charles Gumm. Billie Edwards, living at 2228 North 1st. Edwards’ room is first to the right when you enter front door. A stairway to the left going upstairs has a room under there. This is all a community deal. Edwards gets his fix, etc. in the little room. He has to lay on his stomach to get it. Edwards is supposed to have a gun that Charlie wants real bad. Owner of home will cooperate for a plant or any other way. P. J. Hohlwick. Flagstone 5-6664 or Concord 4-2551.’ ”

Shortly before one o’clock these two officers went to 2228 North First Street. The front window of Edwards’ apartment had an outside storm window. The inside window was raised as was the window shade, and the curtains were parted. By standing on the second step of the stairway leading onto the porch one could look into the room either through a 12 by 2% or 3-inch vent at the bottom of the storm window or through the glass above. One officer made his observations through both the vent and the glass while the other looked only through the window glass.

The officers observed Edwards clad only in his shorts lying on the bed reading a book. Defendant was clad in a “shorty” nightgown and was observed first sitting on a couch at the foot of the bed smoking a cigarette and then walking around the room. The officers recognized defendant whom they knew as being on parole as a result of conviction as a narcotics user. On December 4, 1964, the officers had seen defendant in a tavern in the company of Edwards and had warned her to part company with Edwards because he had a criminal record and associating with him might be a violation of her parole.

After observing the conduct of the parties for a few minutes the two officers entered the building through the front entrance and saw the door leading to Edwards’ apartment. Randa went back to his observation post on the porch step and Thelen knocked on the apartment door. From his observation post Randa saw Edwards take off his shorts and get into bed. He testified he then saw defendant turn off the light and also get into bed. Officer Randa then entered the building, conferred with Thelen about no one answering Thelen’s knock on the door, returned to the outside, and knocked on the window. He then saw Edwards turn on the light, put on pants, galoshes, a suit coat and overcoat, possibly a hat, and go to the apartment door. When Edwards opened the door he was told he was under arrest for encouraging violation of defendant’s parole.

The officers entered the room and saw defendant standing in her nightgown and first declared she was under arrest for parole violation. Fresh needle marks were observed on both her forearms and Randa said to her, “Your arms look pretty bad. It is bad enough to associate with Billie but to start using it again is real bad.” He questioned her about use of narcotics and she admitted she had used heroin the preceding afternoon, December 14th. She stated that one Golden Hanks had then brought three packages of heroin to the apartment and Edwards, Hanks, and she had injected the heroin into their arms with a hypodermic needle. The officers then placed both her and Edwards under arrest for illegal use of heroin.

Upon these facts we determine that there was no violation of defendant’s constitutional rights in either the observations made by the two officers preceding the arrest for illegal use of heroin or in the arrest itself without a warrant. As laid down in Browne v. State the test to be applied to such police conduct is one of reasonableness.

The department logbook entry of information supplied by officer Gumm justified these two officers in going to the premises at 2228 North First Street. This entry apprised them of the location of Edwards’ apartment in the building so that they knew that the window through which they looked from the step of the porch was that of his apartment. In making their observations through the window they did not invade any portion of the premises leased to Edwards. What they saw at once disclosed conduct on the part of Edwards which was a breach of the criminal laws of the state, viz., encouraging defendant to violate her parole. This justified the knocking on the door and the placing of Edwards under arrest when he opened the door.

The act of the officers in stepping into the room through the open door after placing Edwards under arrest was conduct incidental to the arrest. Their observation of the fresh needle marks on defendant’s forearms and their questioning her about them was also reasonable conduct in the line of duty. The admissions then made by defendant justified her arrest for illegal use of narcotics.

Legality of Search and Seizure.

Both Edwards and defendant were placed under arrest for illegal use of heroin before the officers instituted their search of the premises. An open walk-in closet with no doors was in close proximity to where Edwards was standing or sitting when the officers commenced their search. Edwards stated, “Don’t bother searching, I know what you really came here for, the gun,” and reached into the closet and drew out a loaded 32-caliber revolver. The officers took this revolver from him and continued their search. Underneath some papers on the floor of this closet in a soiled, crumpled white envelope they found two eyedroppers, two hypodermic needle tips attached to the rubber bulbs of the eyedroppers, and a burned bottle cap with a wad of cotton in the center. Laboratory tests showed that the two eyedroppers with the rubber bulbs and hypodermic needle tips inserted in the bulbs contained traces of opium alkaloids. Heroin is an opium compound.

In Browne v. State this court struck down Browne’s contention that the search of his room for narcotics incident to his arrest was illegal, and declared:

“Under these circumstances ‘probable cause to arrest’ also supports a determination of probable cause to believe that evidence and instrumentalities of the crime are within the immediate control of the person arrested. General police experience reveals that most illegal users of narcotics maintain either the drugs or the instrumentalities in use in their rooms, apartments, and homes. Therefore, a search pursuant to a valid arrest under these circumstances was reasonable.”

The United States supreme court has upheld similar searches in a number of cases. That court has also held that the practicability of obtaining a warrant is not a controlling factor where the search is made incident to the arrest.

We conclude that the search and seizure here were reasonable inasmuch as made incidental to the arrest and the open closet was under the immediate control of Edwards and defendant.

Sufficiency of Evidence to Convict.

Defendant’s contention, that there was insufficient credible evidence to establish beyond a reasonable doubt her guilt of the offense charged, is grounded on the basic principle that proof of commission of a crime cannot be grounded on the admissions or confession of the accused alone.

The principal evidence adduced of the offense consisted of the afore-stated admissions which defendant made to Officers Randa and Thelen when they questioned her about the fresh needle marks on her forearms. However, these needle marks, together with the laboratory report that traces of opium alkaloid were found on some of the seized paraphernalia, did supply sufficient corroborating evidence to sustain the conviction. As this court observed in Holt v. State:

“All the elements of the crime do not have to be proved independently of an accused’s confession; however, there must be some corroboration of the confession in order to support a conviction. Such corroboration is required in order to produce a confidence in the truth of the confession. The corroboration, however, can be far less than is necessary to establish the crime independently of the confession. If there is corroboration of any significant fact, that is sufficient under the Wisconsin test.”

We have no hesitancy in holding that there was sufficient credible evidence upon which the trial court could find defendant guilty of the offense charged beyond a reasonable doubt.

By the Court. — Judgment affirmed.

       Encouraging violation of parole is made a criminal offense by sec. 946.46, Stats.

       This is not made a criminal offense by the Wisconsin statutes.

       (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, 131 N. W. (2d) 169.

        Supra, footnote 3.

       Id. pages 505, 506. Also see State v. Camara (1965), 28 Wis. (2d) 365, 375, 137 N. W. (2d) 1.

        Harris v. United States (1947), 331 U. S. 145, 67 Sup. Ct. 1098, 91 L. Ed. 1399 (search of entire four-room apartment incident to arrest for check forgery); United States v. Rabinowitz (1950), 339 U. S. 56, 70 Sup. Ct. 430, 94 L. Ed. 653 (search of entire office incident to arrest for stamp forgery); Abel v. United States (1960), 362 U. S. 217, 80 Sup. Ct. 683, 4 L. Ed. (2d) 668, rehearing denied, 362 U. S. 984, 80 Sup. Ct. 1056, 4 L. Ed. (2d) 1019 (search of a hotel room incident to administrative arrest for deportation).

         Ker v. California (1963), 374 U. S. 23, 41, 83 Sup. Ct. 1623, 10 L. Ed. (2d) 726; United States v. Rabinowitz, supra, footnote 6, page 66.

       (1962), 17 Wis. (2d) 468, 480, 117 N. W. (2d) 626. See also Barth v. State (1965), 26 Wis. (2d) 466, 468, 132 N. W. (2d) 578.


author: Per Curiam.

text:
    State, Plaintiff, v. Eisenberg, Defendant.

      November 5

    November 30, 1965.

      For the plaintiff there was a brief and oral argument by Rudolph P. Regez of Monroe.
    For the defendant there was a brief by Anderson, Bylsma & Eisenberg and Clarence G. Bylsma, all of Madison, and oral argument by Clarence G. Bylsma.

   Per Curiam.

Defendant Donald S. Eisenberg is a lawyer, aged thirty-one, married, and has two children. He has practiced law in Madison since his admission in September, 1956.

The will in question, drafted by defendant, was before this court in Estate of Perssion. Objection to its admission had been made on behalf of Mrs. Carol Catherwood, Perssion’s daughter, then twenty years of age. It was claimed that the will resulted from undue influence exercised by defendant and his mother. The county court admitted the will.

Mrs. Catherwood appealed. We affirmed, holding that there was an inference of undue influence arising because the present defendant, the attorney who drew and supervised the execution of the will is a member of the family of the beneficiary, but that the inference was “overcome by other evidence the trial court considered more persuasive.” In that opinion we pointed to evidence that Mr. Perssion was independent, very stubborn, and tenacious; that he considered defendant immature and often did not follow defendant’s advice; that he was fifty-two when he made the will, and was not infirm.

The testimony in the present proceeding is not identical, but leaves very much the same impression, i. e., that Mr. Perssion was unusually self-willed. It appears that both his wife and his daughter learned the contents of the will during his life, but apparently deemed it consistent with his peculiarities.

Defendant argues that when considered in the light of the circumstances, i. e., the strained relationship between Mr. and Mrs. Perssion, Mr. Perssion’s hurt over the fact that Carol had secretly married, and the fact that Mr. Perssion’s sister, defendant’s mother, had been close to him and had helped him financially, the will was natural. Defendant also argues that there was no conflict of interest in connection with the will, which disinherited Mrs. Perssion and Carol and left everything to defendant’s mother, from whom defendant might someday inherit.

Defendant, however, misses the point. The will is unnatural on its face, and his probable interest in the benefits conferred upon his mother is sufficient that an inference of undue influence arises because of his activity in drawing and supervising the execution of the will. It was his duty as a lawyer, both to his client, and to the profession of which he is a member, to avoid so acting as to raise that inference. At the very least, he should have declined to supervise the execution of the will.

Defendant, it seems to us, is saying that it would have been useless for him to argue with his uncle and that if he had declined to draw or supervise the execution of the will, his uncle would have had someone else do it, or would have drawn and executed the same will without the assistance of any lawyer. It may well be that Mr. Perssion would have done so, but it was defendant’s duty to put him to that test or in some other way insure that there would be competent evidence which would readily and clearly overcome any inference of undue influence.

It should be noted that it appeared to be easy to prove the unhappy relationship between Mr. and Mrs. Perssion, and thus to establish that disinheriting the wife was not the result of undue influence. This was not the case with respect to disinheriting the daughter. Although there was evidence that Mr. Perssion had been hurt by the circumstances of her marriage, and that he disapproved of his son-in-law, there was also evidence that a relationship of love and affection between father and daughter continued thereafter. As noted in paragraph “E” of the referee’s findings, above quoted, the referee had great difficulty in discovering any reason for Mr. Perssion completely disinheriting his daughter. Although Mr. Perssion surely had the right to do so, without justifying his action to anyone, the fact that such justification is difficult makes it harder to dispel the inference of undue influence and more obvious that defendant should have avoided creating such inference.

Paragraph “D” of the findings of the referee is undoubtedly based upon the defendant’s admission that he did not discuss with his uncle the possibility of creating a trust for Carol’s benefit. In arguing that Perssion’s gift of all his property to his sister was not unnatural, defendant suggests that Perssion assumed that his sister would take care of Carol if Carol were in need. Assuming, as this argument suggests, that Perssion was interested in the welfare of his child, it seems highly probable that a disinterested attorney would have pointed out to him the possibility of a trust provision under which Carol would receive benefits as a matter of right. Although defendant’s failure to do this may have been only a deficiency of skill or judgment, the conflict of interest may suggest to the observer that the failure was motivated by self-interest.

In State v. Horan, decided after defendant drew the Perssion will, we said:

“Because the law on this subject has not been clearly defined or well understood by the members of the legal profession and no undue influence is involved, we deem a reprimand and the payment of costs to be sufficient.”

We reach the same decision here except to limit the amount defendant must pay. The costs in this proceeding are very substantial, approximately $3,200, and it seems sufficient to require defendant to pay $1,750 thereof.

It is ordered and adjudged that, the defendant be and hereby is reprimanded for his conduct and that he pay the sum of $1,750 toward the costs and expenses of these proceedings including the fees and disbursements of the attorney for the plaintiff.

Wilkie, J., took no part.

       (1963), 20 Wis. (2d) 537, 123 N. W. (2d) 465.

        Estate of Perssion, supra, footnote 1.

         State v. Horan (1963), 21 Wis. (2d) 66, 123 N. W. (2d) 488.

        Supra,, footnote 3.

        State v. Horan, supra, page 75, footnote 3.


author: Fairchild, J. Per Curiam

text:
    Estate of Wettig: Milwaukee Catholic Home for the Aged, Appellant, v. Hoffman, Administratrix, and another, Respondents.

      October 4

    December 1, 1965.

      For the appellant there were briefs by Quarles, Her-riott & Clemons of Milwaukee, and oral argument by Maxwell H. Herriott.

    For the respondent Alma Hoffman there was a brief by L. A. Willenson of Milwaukee.
    For the respondent Fidelity & Deposit Company of Maryland there was a brief by John & Meyer of Milwaukee, and oral argument by Walter John.

       Motion for rehearing denied, without costs, on February 1, 1966.

   Fairchild, J.

In substance, the judgment appealed from assigned the estate according to the record as it stood at the time of the December, 1962, hearing and at the time distribution was made; and declined to enforce the Home’s claim under the 1957 “assignment” because the assets were no longer in the possession of the administratrix and she had distributed them without notice of the Home’s claim. Determination of the Home’s rights, if any, to the assets was left to such actions as the Home might bring against the distributees.

The Home considers that the document executed by Mrs. Thorp in 1957 is an assignment of her interest in the Wettig estate. The Home then contends that since its “assignment” was filed with the court before entry of final judgment, sec. 318.06 (10), Stats., compels the court to determine the validity of the “assignment” and assign the estate to the Home by final judgment, accordingly.

Counsel points to the general rule that an executor or administrator who distributes personal property prior to judgment does so at his own risk. If the 1957 document were an assignment of Mrs. Thorp’s interest in the Wettig estate, it would follow, as the Home argues, that the fact that Mrs. Hoffman had already distributed the assets would be immaterial. As long as the assignment be presented before judgment, the judgment must reflect it if valid.

The difficulty lies in the peculiar character of the 1957 document insofar as it relates to an expectancy of inheritance from one not yet deceased. Such an “assignment,” in Wisconsin, is only an agreement to assign an interest in an estate after that interest has come into existence by the death of the testator or intestate. The agreement is enforceable in equity if supported by adequate and fair consideration and if enforcement is otherwise not inequitable.

It would follow that the Home could have brought an action against Mrs. Thorp after Wettig’s death to compel her to assign her interest in the estate, if the court deemed enforcement not inequitable. We have no doubt that if the Home had asserted its claim in the probate proceeding while the assets were still in the hands of the administra-trix, the county court could properly have entertained the claim in that proceeding. Although in an era of greater emphasis upon technical distinctions, a probate court might have relegated the Home under any circumstances to an independent action in equity to compel enforcement, that would be out of harmony with modern emphasis on substance rather than form. But in any event, the controlling principles are equitable.

Thus in the instant case, the court properly applied equitable principles. The delay in the presentation of the Home’s petition was no more chargeable to the adminis-tratrix than it was to the Home. She had made distribution of the assets in good faith. Although the judgment assigning the estate had not been entered, a hearing had been had, and the court in determining the inheritance tax had adjudicated the distributive shares on the basis of the 1962 assignment and renunciation, as was proper in the state of the record at that time. Although no notice of hearing had been given the Home, the only basis on record for recognizing any interest of the Home was the assignment to it of $1,000, and it was proposed to pay that in full.

Assuming the adequacy of the consideration for the 1957 “assignment,” and there seems to be no claim to the contrary, one of two innocent parties must bear a burden. Under the county court’s decision, the Home must bring action against the distributees in order to enforce the agreement. If the decision had gone in favor of the Home, the administratrix and her surety would be immediately liable to the Home, and would have to look to the dis-tributees for recoupment.

We consider the choice made by the county court was within the discretion of a court of equity.

By the Court. — Judgment affirmed.

Hallows, J., took no part.

The following memorandum was filed February 1, 1966:

Per Curiam

(on motion for rehearing). The Milwaukee Catholic Home for the Aged urges that the mandate be modified so that the probate branch of the county court would retain jurisdiction and determine the claim of the Catholic Home against the several distributees in this action.

The Catholic Home relies upon sec. 318.06 (2) and (10), Stats., and urges that the county court’s probate jurisdiction is broad enough under such section, as well as under sec. 253.10, to permit an adjudication of the controversy in the county court between the Catholic Home and the distributees.

While the county court would clearly have had jurisdiction to adjudicate the issue before the distribution had been made, we believe that it would be inappropriate for the county court to retain jurisdiction and in this action attempt to follow the assets into the hands of the dis-tributees; this is particularly true if some of the dis-tributees were served by publication rather than in person.

We recognize that it is less convenient for the appellant to be obliged to pursue its remedy in separate civil proceedings against the individual distributees, but we deem such course necessary upon the facts of this case.

The motion for rehearing is denied, without costs.

        Williams v. Ely (1860), 13 Wis. 1, 10 (*1, *9), and Will of Grover (1928), 197 Wis. 347, 222 N. W. 228.

        Hofmeister v. Hunter (1939), 230 Wis. 81, 88, 283 N. W. 330. See also Estate of Jacobus (1934), 214 Wis. 143, 252 N. W. 583.