Neuman v. State

76 Wis. 112 | Wis. | 1890

Cassoday, J.

It is claimed that the complaint, the substance of which is set forth in the foregoing statement, is insufficient in not alleging that, at the several times of selling such liquors, Neuman had no “ permit ” to sell, as well as alleging that he had no “license” therefor. This contention is based upon the theory that the burden of alleging and proving, at least by presumptive evidence, that such sales were without any “license” or “permit” therefor, was upon the prosecution, under the repeated decisions of this court. Meham, v. State, 7 Wis. 670; Hepler v. State, 58 Wis. 46. There is not much difference between the word “ license ” and “ permit.” A “ license,” as used in sec. 1548, R. S., as amended by sec. 10, ch. 322, Laws of 1882, and sec. 1, ch. 296, Laws of 1885, is certainly a permit, and a “ permit,” as used in sec. 1548a, S. & 33. Ann. Stats, (see. 2, ch. 296, Laws of 1885, and ch. 404, Laws of 1887) is certainly a license to pharmacists.¹ The word “ permit ” was manifestly thus used, merely to indicatS such license to pharmacists, as distinguished from the other classes of licenses mentioned; and both words were evidently so used in sec. 1550, S. & B. Ann. Stats, (sec. 4, ch. 296, Laws of 1885). The complaint not only charges that Neuman made the sale “ without first having obtained a license therefor,” but also that he “ had no license authorizing such sale or trafile.” Besides, it is very apparent, from the stipulation in the case, whichynust be regarded as a verity, that Neu-man’s defense, on the trial of this action in the circuit court, was based entirely upon the protection afforded by the license which the village board revoked, pending the cer-tiorari and the appeal from, the judgment therein; that Neuman sold the liquors in “ said saloon,” which was closed for the three days named; and that “the real object” of such “ appeal and stipulation ” was to have the court determine whether the said Neuman was “ justified, under the circumstances, in selling liquor or not.” We must hold the complaint sufficient, especially after conviction. Sires v. State, 73 Wis. 255.

2. It is urged that the evidence in the record is insufficient to sustain the conviction. We think otherwise. As indicated, the stipulation was, in effect, an admission that Neuman sold the liquor as charged, and then attempted to justify under the license so revoked by the village board.

8. The more serious question is whether the pendency of the writ of certiorari, and the subsequent appeal from the judgment thereon to this court, operated as a bar to the prosecution of Neuman for selling during the time which would have been justified by the license had it not been so revoked. The writ, as originally issued, embodied an order staying all proceedings under such revocation, and suspending the operations thereof until otherwise determined. The order so staying proceedings and suspending operations was, upon notice and hearing, vacated and superseded August 6, 1888, by the same authority that granted the writ. Each and all of the offenses charged occurred subsequently to that time. The only undertaking given on the appeal from the judgment affirming the order of the village board and quashing the writ, was the usual undertaking to “ pay all costs and damages ” by reason thereof, not exceeding $250, as prescribed by sec. 3052, R. S., which is essential “ to render an appeal effectual for any purpose.” We do not understand that such undertaking operates as a stay in any case. Whether a stay of proceedings might have been secured by the giving of an undertaking as required by sec. 3058 or sec. 3059 or sec. 3060 or any other section of the statutes, it is unnecessary here to inquire, since no such undertaking was given or attempted to be given. It may be questionable whether there is any section applicable, or intended to be applicable, to such a case. Assuming, therefore, that the circuit judge had the power, in his discretion, to vacate and supersede the stay which was at first ordered, and it necessarily follows that there was no stay of proceedings or bar to the prosecution at the time of the commission of any of the offenses charged.

The more precise question presented is, therefore, whether the circuit judge possessed the power to so vacate and supersede the stay, or, in other words, whether the mere allowance of the writ operated, ipso facto, as a bar to such prosecution as a matter of right, regardless of the orders made by the judge granting the writ in relation thereto. The revocation of the license' by the village board, and the service upon Neuman of a certified copy of the order of the board to that effect, July 17, 1888, was, in legal effect, an abrogation and extinguishment of the license. Secs. 1558, 1559, R. S.; Comm. v. Hamer, 128 Mass. 76; State v. Schmidtz, 65 Iowa, 556; Martin v. State, 28 Neb. 871. The writ of certiorari was granted subsequently to such abrogation and extinguishment, and was a mere command to the village board to return the records adjudging such revocation, and all the proceedings concerning the same, to the circuit court for review. “The purpose of the writ is to have the entire record of the. inferior tribunal brought before the superior court, to determine whether the former had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law.” 3 Am. & Eng. Ency. Law, 61, and cases cited; State ex rel. Wood Co. v. Dodge Co. 56 Wis. 79. The effect of the issuing and serving of the writ is not to open or vacate the judgment or action of the inferior tribunal, like an appeal giving a newT trial upon the merits, but merely to remove the records thereof to the superior court for inspection, and thus enable such court to determine whether the inferior tribunal had the rightful jurisdiction or the rightful authority to render such judgment or perform such act. Tbe judgment of tbe court in tbe proceeding upon sucb writ merely determines the validity or invalidity of the record, of sucb inferior tribunal, and either reverses or affirms tbe same, in whole or in part, accordingly. Smith v. Bahr, 62 Wis. 244; Newton v. Leary, 64 Wis. 190; Hyslop v. Finch, 99 Ill. 171. While this is true, the issuing and serving of the writ nevertheless operates as a stay of all subsequent proceedings by the inferior tribunal, except in cases where the execution of its order has already begun. Gaertner v. Fond du Lac, 31 Wis. 503; Hunt v. Lambertville, 46 N. J. Law, 59; John v. State, 1 Ala. 95. And where such inferior tribunal has thus begun, but not completed, the execution of its order before the service of such writ, the court or judge granting the same may undoubtedly, in the exercise of a sound discretion, incorporate therein an order staying any further proceedings, as indicated in Gaertner v. Fond du Lae, supra, and Patchin v. Mayor, 13 Wend. 664. But in the case at bar the license was, in legal effect, abrogated and extinguished prior to the service of the writ. Assuming that the order staying proceedings, as contained in the writ when first issued, operated as a bar to such prosecution while it continued, still there can be no doubt but what such stay was effectually vacated and superseded by the order of August 6, 1888.

It follows, from what has been said, that neither the pendency of the certiorari, nor the appeal from the judgment affirming the order of the village board and quashing the Avrit, operated as a bar to the prosecution for the several offenses of which Neuman was convicted in this action.

By the Court.— The judgment of the circuit court is affirmed.