1860. OWEN V. STATE. annexed to the county of Green Lake;" will any one serious- June Term, ly contend that such ballot should not be counted against division? And is there any good reason for saying that the legislature intended that a ballot in this form should be rejected and thrown out by the canvassing board? If we hold that the legis lature intended that an elector should only express his will upon the subject of division in the exact words given in the law, then a ballot in the form supposed should be rejected. But we cannot think that such was the intention of the legislature. And when the intention of the elector can be clearly ascertained from the ballot itself, or with the aid of competent evidence dehors the ballot, such intention should have effect, and the vote should be counted. So, as a matter of law, we cannot say that no votes can be counted except those in the form prescribed by the act. It follows from these views that the demurrer must be overruled. OWEN VS. THE STATE. The circuit court of a county has jurisdiction of a prosecution for bastardy, which was commenced before a justice of the peace of the same county, and in which the defendant was recognized to appear in such circuit court, although the complainant was, at the time of the birth of the bastard child, and of the commencement of the prosecution, a resident of another county in this state. ERROR to the Circuit Court for Milwaukee County. This was a prosecution for bastardy, commenced before a police justice of the city of Milwaukee, on the complaint of one Jane McAfferty. The defendant entered into a recognizance for his appearance before the circuit court of Milwaukee county, upon trial in which he was found guilty. There was evidence tending to show that the complainant had never been a resident of the county of Milwaukee, but was, at and before the birth of the bastard child, and ever since had been, a resident of the county of Jefferson in this state; and the defendant's counsel, at the proper time, moved the court to dismiss 1860. OWEN V. STATE. June Term, the case for want of jurisdiction, which motion was overruled, and the defendant excepted. On the trial the defendant asked the court to instruct the jury as follows: "That this proceeding is for the benefit of the complaining witness, and if the jury find that she was a resident of Jefferson county before the birth of the child, and has resided in that county since the birth of the child, and still resides there, then this action cannot be maintained here, and they must find for the defendant." This instruction the court refused, and the defendant excepted. A motion for a new trial, on the ground that the court erred in refusing to dismiss the case, and in refusing to give said instruction, was overruled, the defendant excepting. October 15. By the Court, COLE, J. This cause was submitted upon the record, without argument and without any briefs, and we are therefore ignorant of the points upon which the plaintiff in error relies to reverse the order of filiation made by the circuit court. The record shows that several objections were taken on the trial to the admission and exclusion of certain testimony, but we do not perceive any error in the rulings of the circuit court upon those points. It appears likewise that the counsel for the plaintiff in error relied upon the objection that the circuit court of Milwaukee county had no jurisdiction of this proceeding. We are unable to understand why that court had not jurisdiction. The complaint was made before a justice of the peace of Milwaukee county, by the mother of the bastard child. A warrant was issued, upon which Owen was arrested, and recognized to appear at the next term of the circuit court of Milwaukee county, to answer the complaint preferred against him. Upon the trial in that court, the jury found him guilty. Whereupon the circuit court made an order of filiation, adjudging him to be the father of the bastard child, and charging him with its maintenance and support, and ordering him to pay the complainant a hundred dollars, for the support of the child from its birth to that time, and five dollars upon the 20th day of each month thereafter. And he was required to give a bond to the supervisors of the proper town, in conformity to section 7, chap. 1860. 37, of the bastardy act. All this proceeding appears to be June Term, regular and proper, and we think there is no doubt that the circuit court of Milwaukee county had jurisdiction of the cause. The order of filiation is affirmed, with costs. STATE V. MUSHIED. STATE VS. MUSHIED. A prosecution for bastardy is a quasi criminal proceeding, and cannot be brought APPEAL from the Circuit Court for Dodge County. J. H. Howe, Attorney General, for the state, contended that the provisions for appeals, (chap. 139, R. S.), apply only to civil actions, and that this is a quasi criminal action, in which a summary method of arrest and punishment is authorized, and in which the proceedings are not for the benefit of any private individual, but are designed to protect the people against loss for the maintenance of the bastard, the supervisors of the town being authorized to make the complaint. R. S., chap. 37, § 11. By the Court, PAINE, J. This was a complaint against the October 15. defendant for the purpose of compelling him to provide for the support of a bastard child. There was a trial in the circuit court, and he was convicted and adjudged to be the father of the child, and to provide for its support. From the judgment he has appealed to this court, in the manner provided for appeals in civil actions. The attorney general moved to dismiss the appeal, on the ground that the statute relating to appeals applies to civil actions, and that a complaint charging the party with being the father of a bastard child, is not a civil action within the meaning of that statute. We are inclined to be of this opinion. The statute which allows VOL XII-36 June Term, an appeal to be substituted for a writ of error, was evidently 1860. designed only for civil actions, and not to change the pracSTATE ex rel. tice in criminal cases. CHRISTOPHER V. THE CITY OF Bastardy proceedings, it is true, are not strictly of a criminal character, yet they have always been considered as quasi criminal cases, and the practice in them has been like the practice in criminal cases. We think the new system was not intended to change the proceedings in such cases, and that if the defendant desired to review the judgment of the circuit court, he should have sued out a writ of error. The motion to dismiss the appeal must be granted, with costs. STATE ex rel. CHRISTOPHER VS. THE CITY OF PORTAGE. Where the charter of a city provided that upon the application of two-thirds of the owners of lots on a street, or part of a street, the council should have pow er to cause such street, or part of a street, to be graded, &c., and for the purpose of defraying the cost, to levy and collect a special tax on the lots abutting on such street, or part of a street, in proportion to the front or size of such lots respectively, it was held, that so much of an ordinance requiring such an improvement to be made, as directed that each lot, or part of a lot, should be charged with the cost of the work done in front thereof, to be collected as a special tax, was repugnant to the charter and void. Held, also, that it was not necessary for the city council to have provided in one or dinance for the doing of the work, and for the manner of its payment, and although that part of the ordinance above referred to as being repugnant to the charter, is void, the other portion of it, which directed that the work should be done, and the contracts for doing it should be let, &c., may be sustained, and that the council are bound to provide for the assessment and equalization of a tax for the whole work done, among the several lots liable therefor, as the charter contemplates, if, under the circumstances, the provisions of the charter in that respect can still be substantially executed. Under the power to order the improvement of a street, or part of a street, the city council might order the making of a side-walk on one side of a street only. APPLICATION for a mandamus to compel the mayor, &c., of the city of Portage to provide for the assessment, equalization and collection of a special tax to defray the expense of June Term, 1860. CHRISTOPHER V. THE CITY OF certain work alleged to have been done by the relator under an ordinance of said city, or to show cause, &c. The affidavit of the relator showed that on the 1st of April, 1857, STATE ex rel. two-thirds of the owners of lots upon a certain portion of one of the streets of the city of Portage, made application in due PORTAge. form to the mayor and council of that city, for the passage of an ordinance requiring side-walks and street crossings to be made on one side of such portion of said street, and that an ordinance was passed on the 8th of April, 1857, requiring the owners of such lots to make such side-walks and crossings by the 1st of July following, in pursuance of the ordinance in relation to the improvement of streets, passed by said mayor, &c., on the 31st of March, 1857, and providing that in default thereof, the street commissioner of the proper ward should cause it to be done at the expense of the owners of said lots, as provided in the last mentioned ordinance. The ordinance of March 31st, 1857, provided that whenever the mayor, &c., should order a side-walk to be made, the owner of each lot bordering on the proposed improvement, should, at his own expense, and within the time limited by such order, do the work required thereby, upon so much of the street as lies in front of his lot, and that the owner of a corner lot should continue the work to the center of the intersecting street, and that if such work were not done within the time so limited, it should be forthwith done under direction of the street commissioner of the proper ward, at the expense of the owner of such lot; that the cost thereof should be levied and collected as a specific tax thereon, in the same way as the annual tax; that in such case the street commissioner, after giving a certain notice, should let the work to be done by contract, &c., and upon its completion give the contractor a certificate as to each lot, stating the amount chargeable to each lot and due to the contractor thereon, which certificate might be filed with the city clerk at any time before the tax list should be made out, and the amount should be by him added to the other taxes as a special tax upon such lot, and be inserted in the tax list and warrant for the current year, and be collected as other taxes, and paid to the owner of such certificate. The affidavit also |