State ex rel. Fourth National Bank of Philadelphia v. Johnson

103 Wis. 591 | Wis. | 1899

The following opinion was filed September 5, 1899:

Wihslow, J.

The constitution of this state (sec. 3, art.. YII) provides: “The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed. The supreme court shall have a general superintending control over cill inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.”

Yery early in the history of this court and of the state the question of the construction and meaning of this section was presented to this court, and learnedly discussed by Justice Smith in the opinion in the case of Attorney General' v. Blossom, 1 Wis. 317. That case was an information filed in this court by the attorney general in the nature of a quo-warranto against Blossom and others, and motion was made to dismiss the cause for lack of jurisdiction, on the ground that the granting of the writs in the third clause of the constitutional provision above quoted gave no additional jurisdiction, but that those writs were- simply named as instru-mentalities by which the appellate power and the superintending control were to be exercised. This contention was repudiated by tbe court, and the conclusion distinctly reached and clearly stated that the constitutional provision contained three separate grants of jurisdiction to this court, namely, (1) the appellate jurisdiction; (2) the superintending control over inferior courts; and (3) the original jurisdiction to be exercised by means of the writs named in the third clause to protect the sovereignty of the state, preserve the liberty of the people, and secure the rights of its citizens. In discussing the second clause of the section, namely, “ the supreme court shall have a general superintending control over all inferior courts,” it was said: “ This sentence contains a clear grant of power. We will not undertake to say that without this grant the power would not be in the court. It is not necessary to discuss that question. We are endeavoring to arrive at the proper construction of the law. It is a grant of power. It is unlimited in extent. It is indefinite in character. It is unsupplied with means and instrumen-talities. The constitution leaves us wholly in the dark as to the means of exercising this clear, unequivocal grant of power. It gives, indeed, the jurisdiction, but does not pretend to intimate its instruments or agencies.” Again, in discussing the third clause of the section, it was said: “ Here, also, is a distinct grant of power, The first of the section is restrictive,— one of limitation merely. The two last are clear grants of the power, the one of which gives the power of a superintending control over inferior courts; the other gives the power to issue certain writs in appropriate cases, and to hear and determine the same.”

The section came before this court again in the great case of Attorney General v. Railroad Oos. 35 Wis. 425, and the exhaustive discussion by Chief Justice Ryaw in that case of the original jurisdiction of this court under the third clause of the section will ever stand as a monument to- the legal learning and ability of that distinguished justice. In that discussion the conclusions reached in the Blossom Oase to the effect that there were three separate and independent grants of jurisdiction in the section quoted were fully approved, and the court said (page 515 et seq.): “The framers of the constitution appear to have well understood that with appellate jurisdiction the court took all common-law writs applicable to it, and with superintending control all common-law writs applicable to that; and that failing adequate common-law writs, the court might well devise new ones, as Lord Coke tells us, as ‘ a secret in law.’ Hence the constitution names no writ for the exercise of the appellate or superintending jurisdiction of the court.” And again: “ The grant of original jurisdiction is one entire thing, given in one general policy, for one general purpose, though it may have many objects and many modes of execution. So it is of the appellate power. So it is of the superintending control. There are three .independent and distinct grants of jurisdiction, each compact and congruous in itself; each a uniform grant of analogous remedies, though to be exercised in several ways, by several writs, in legal and equitable proceedings on many objects, in great variety of detail. The constitution wisely, almost necessarily, stopped with the general grants of jurisdiction carefully distinguished, and left details to practice and experience. . , . The three grants of jurisdiction proceed on one policy: appellate jurisdiction to decide finally all ordinary litigation; superintendingjuris-diction over dll other courts to control the course of ordinary litigation in them; and, outside of these, original jurisdiction of certain proceedings at law and in equity, to protect the general interests and welfare of the state and its people, which it would not do (to quote Smith, J.) to dissipate and scatter among many inferior courts.”

These propositions, so clearly laid down, have never been questioned, nor does it seem that they are open to question even in the absence of decisions upon the subject, and looking at the language of the section alone. It must be regarded as settled, therefore, that by the constitutional grant .of “ a general superintending' control over all inferior courts ” this court was endowed with a separate and independent jurisdiction, which enables and requires it in a proper case to control the course of ordinary litigation in such inferior courts, and was also endowed with all the common-law writs applicable to that jurisdiction. "What those writs are, and the manner of their use, are questions which have not as yet been directly presented or decided, but they are necessarily involved in the present case, and hence must now be considered. That the makers of the constitution used the words in question understandingly, and with a specific meaning,' and not as a mere rhetorical flourish or high sounding form of words, can admit of no doubt. Only a superficial knowledge of the growth and development of the English judicial system is necessary to determine what that meaning was and is. The English court of king’s bench had a superintending jurisdiction over all the inferior courts of the realm, which it freely exercised by the use of well-defined writs from very early times. The Norman idea was that the king was the fountain of all justice, and hence, when an inferior court exceeded its jurisdiction, or refused to act within its jurisdiction to the prejudice of a suitor, and no other remedy was provided, application could be made by the aggrieved party to the king’s court to restrain or compel action. The king’s bench was peculiarly the king’s court, in which he sometimes sat himself, and was always supposed to sit when not personally present. It succeeded in this respect the very ancient aula regis when (near the close of the Norman period) that court was divided into the courts of the king’s bench, common pleas, and exchequer. Being the king’s court, it was natural, if not inevitable, that the king’s sovereign power of causing justice to be done to his subjects in the course of litigation in inferior courts should be administered by and through that court. Blackstone says of this court (3 Oomm. ch. 4, p. 42): “The jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove the proceedings to be determined here, or prohibit their progress below. It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in every case where there is no other specific remedy. It protects the liberty of the subject by speedy and summary interposition. It takes cognizance both of criminal and civil cases; the former in what is called the crown side or crown office, the latter in the plea side of the court.”

It is very apparent that when the makers of the constitution used the words “ superintending control over all inferior courts ” they definitely referred to that well-known superintending jurisdiction of the court of king’s bench. In England it was a branch of the king’s power lodged with the king’s court; in this country it is a branch of the sovereign power of the people, committed by them as a sacred charge to this court, not to be esercised upon light occasion, or when other and ordinary remedies are sufficient, but to be wisely used for the benefit of any citizen when an inferior court either refuses to act within its jurisdiction, or acts beyond its jurisdiction to the serious prejudice of the citizen. 2 Spelling, Extr. Relief, § 1388. The two great writs by which this superintending jurisdiction was principally exercised by the court of king’s bench were the writs of mandamus and prohibition ; the one directing action by the inferior court, and the other forbidding action. Of these writs and their peculiar office, when directed to an inferior court, Blackstone says (3 Oomm. ch. Y, p. 110): “Eor it is the peculiar business of the court of king’s bench to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers, with which the crown or legislature have invested them; and this not only by restraining their excesses, but also by quickening their negligence, and -obviating their denial of justice.” In addition to these two prerogative writs, the superintending control over inferior courts was at common law sometimes exercised by means of the writs of certiorari andprocedendo, the first of which issued either from the king’s bench or from chancery, and the second from the court of chancery alone, which court was also invested with a part of the superintending power. Harris, Certiorari, § 3, p. 4; 3 Bl. Comm. ch. 7, p. 109. As to the writ of certiorari, it is used so frequently, and its ordinary functions are so well known, that discussion of it is unnecessary; and as to the writ of procedendo it may be said that it has practically fallen into disuse, its functions being fully performed by the writ of mandamus. High, Extr. Leg. Rem. (3d ed.), §§ 147,148. It would hardly be helpful to enter into any extended investigation as to whether there were other writs at common law by which the superintending power was exercised. The writs already named form a veritable arsenal of legal weapons by means of which, all ordinary excesses or defaults on the part of inferior courts which call for the exercise of such power can.be corrected and controlled. Nor, for the same reason, is it necessary to consider the suggestion of Chief Justice Ryah in the Rcvilroad Gases to the effect that the court may devise new writs in case of the inadequacy of the common-law writs to meet the case in hand. The conclusion is inevitable that with the constitutional grant of superintending control this court took at the same time all the ancient writs necessary to enable it to exercise that high power including certainly the writs of mandamus, prohibition, certiorari, and procedendo. The statute which purports to grant to the supreme court the power to issue writs of “ prohibition, supersedeas, procedendo, and all other writs and process not specially provided for by statute which may be necessary to enforce the due administration of right and justice throughout the state ” (sec. 2406, Stats. 1898), can. hardly be said to have given the court any additional instrumentalities for the exercise of the superintending jurisdiction, because this court possessed those writs as a necessary adjunct of the constitutional grant of a superintending control. Nevertheless, the section is helpful as indicating the legislative intention that no doubt should be left as to the power of the court to issue any writs necessary to make effective the three separate grants of jurisdiction made to it by the constitution. Nor does the fact that in the third clause of the constitution certain writs are named, including mandamus and certiorari, as the means by which original jurisdiction is to be exercised, militate against the position that the grant of superintending control carried with it all necessary writs applicable to its efficient exercise, for the plain reason that mandamus and certñora/ri, though entirely suitable and efficient as superintending writs, are equally well adapted for use in the exercise of the original jurisdiction, and in fact necessary to make that jurisdiction complete and effective. Further, it may be said that said last-named writs are frequently used in the exercise of the appellate jurisdiction of this and other supreme courts, but they are not theTeby confined to such use.

It was suggested at the bar upon the argument of this case that this “superintending control” was a branch of the jurisdiction of this court which had practically remained dormant. during the existence of this court, but a very slight examination of the decisions will demonstrate that this is an erroneous idea. The examples may not be numerous, and it is to the credit of the trial courts that such is the fact, but they are entirely sufficient. It is true, the subject has never been fully discussed, and the jurisdiction has been exercised without being classified or named, but the fact remains that it has certainly been exercised by the use of the writs of mandamus and prohibition. Thus, in State ex rel. Brownell v. McArthur, 13 Wis. 407, the writ of mandamus was granted compelling a circuit judge to make an order changing the venue of an action, and in State ex rel. Spence v. Dick, ante, p. 407, the same judgment was rendered. In State ex rel. Att'y Gen. v. Circuit Court, 97 Wis. 1, a writ of prohibition was granted preventing the further prosecution of certain contempt proceedings in the circuit court because such court was acting in excess of its jurisdiction. Doubtless other cases could be cited in this court where the superintending control has been exercised by this court, but these will suffice to show that such power has not lain dormant. Instances of the exercise of this power by the circuit court under its constitutional grant of “ superintending control ” over inferior courts (Const. Wis. art. VII, sec. 8) may also be cited. Thus, in State ex rel. Marsh v. Whittet, 61 Wis. 3517 the circuit court, by mandamus, compelled a justice of the peace to correct the entries in his docket to accord with the facts, and it was held that the circuit court had the power under its grant of supervisory control.

There seems to have been no extended discussion of the general character and limits of the superintending jurisdiction of supreme courts in the decisions of other states, although the constitutions of Missouri, Michigan, and Colorado contain provisions very similar to our provision granting to the supreme court superintending control over all inferior courts; while in Alabama, Arkansas, Iowa, North and South Carolina the superintending control is given in somewhat different phraseology. However, we have found no decisions nor intimations contradictory to the views hereinbefore expressed, while we find the writs of mimdamus and prohibition to have been frequently used in the exercise of this-jurisdiction. Thus, in State ex rel. Bayha v. Philips, 97 Mo. 331; S. C. State ex rel. Bayha v. Kansas City Court of Appeals, 3 L. R. A. 476, note, mandamus. was used under the-superintending power to compel an inferior court to reinstate a -cause, and it was said of the superintending control: “ The -control granted to the court in the particulars mentioned is fettered by no restriction or limitation; it is as broad as the -exigency of the case demands.” And in St. Louis, K. & S. R. Co. v. Wear, 135 Mo. 230, 33 L. R. A. 341, a writ of prohibition was granted to prevent an inferior court from pro-needing to exercise unauthorized power. See a discussion of superintending control in 2 Leg. Adv. (April, 1899), 333. See, also, 2 Spelling, Extr. Relief, § 1394, and cases cited in note 2, and cases cited in note to State ex rel. Bayha v. Kanas City Court of Appeals, 3 L. R. A. 476.

Having thus demonstrated that the constitutional grant •of superintending control over all inferior courts vested in this court an independent and separate jurisdiction enabling •■and requiring it, upon sufficient occasion, by the usé of all proper and necessary writs to promptly restrain the excesses •and quickén the neglects of inferior courts in the absence of other adequate remedy, the question arises whether the case presented is one within that jurisdiction, and, if so, whether maiidamus is an appropriate and efficient remedy. The pres■ent controversy arises out of the administration of the affairs of an insolvent bank with nominal assets of o vei^ a million and -a half, and debts nearly as large. By the deed of assignment these assets became substantially the property of the creditors to the amount of their just claims held in trust for their benefit by the assignee, to be converted into money, under the direction of the court, and applied in liquidation of their claims. The creditors were the real owners, the assignee their trustee, and, in a sense, their mere agent. While they were not entitled to officiously intermeddle with the business, nor dictate to the assignee, they were entitled at all reasonable times and in all reasonable ways to be informed of the progress of affairs and the state of the business. These propositions seem self-evident from the very nature of the relations of the parties to the subject matter, and from the care which is taken by the statute to arm the creditors with all necessary power to intervene in the proceedings, to examine the assignor and his books; to investigate, by the examination of the assignor and other witnesses, the business affairs of the assignor, both before and after the assignment; to compel the rendering of an account by the assignee; to be heard upon the settlement of the account; and to require the removal of the assignee by the court. Secs. 16935,1701, 1702, Stats-. 1898. .

¥e are compelled to say in the present case that the fundamental rights of the creditors seem to have been entirely ignored or denied by the assignee and by the court, and the position seems to have been taken that the business was the business of the assignee, in which the creditors were only remotely interested, if interested at all. Eive years and more passed without the rendering of any account by the assignee, and these years were full of many business transactions, some of them of considerable magnitude, including the compromise of large claims, the purchase and closing out of á large stock of furniture upon execution, and the payment of senior execution creditors from the proceeds. When at last, in compliance with an order of court, the as-signee rendered a supposed account of his long stewardship, he failed utterly to comply with the requirement of the statute. By sec. 1701, Stats. 1898, his account and report must consist of (1) an itemized and verified statement of the property by him received, (2) the manner of his dealing therewith, (3) the amount of money realized by him, (4) the condition of the property and funds in his possession, (5) the names and residences of the assignor’s creditors, (6) the dividends paid them, (7) his receipts and disbursements, and (8) his claim for compensation. The account filed by the assignee consisted principally of a transcript of his cash account, which is nowhere footed, and which utterly fails to state the property received by him, the manner of his dealing therewith, and from which the amount realized and the condition of the funds and property in his possession can only be determined, if at all, by long and patient examination by expert accountants. It is an account better calculated to obscure and confuse the situation than to render it plain. It was an account that did not comply with the statute, and which any creditor was entitled to have made definite and certain before being required to file specific objections to it. Upon the hearing of the so-called account certain creditors moved that the same be made more definite and certain, so as to comply with the requirements of the statute. There can be no question of the absolute right of any creditor to demand that the assignee make and file an account answering the requirements of the statute, before he is required to make special objections to any particular items of such account. Rut the circuit judge took the motion and the account under advisement, stating that should reserve -the question of the assignee’s compensation until the rendering of the final account of the assignee. No further action was taken by the court until the 9th day of May following, when, without notice to any creditor, and without disposing of the motion to make the account definite and certain, an order was made confirming the account as a full accounting of all acts of the assignee up to July 1,1898, except as to his compensation; thus, in effect, closing every avenue by which creditors could hope to investigate the assignee’s conduct of affairs. After this action, taken, as we must conclude, in utter disregard of the rights of the creditors to examine and object to the account required by the statute, orders were made in rapid succession denying, the creditors the right to examine the assignee and the officers of the assignor, accepting the resignation of the assignee, but continuing him in the discharge of his duties, vacating an order for the examination of the officers of the assignor made by a court commissioner, denying the motion to make the account more definite and certain, and denying a motion to vacate the order confirming the account of the assignee. If any additional order could have been devised which would more completely and thoroughly prevent the investigation of the transactions of the assignee prior to July 1, 1898, we do not know what it could be. Notwithstanding the fact that the creditors had an absolute statutory right to an account substantially conforming to the requirements of sec. 1701, Stats. 1898, and notwithstanding the fact that some of them had moved the court to require the making of such an account, they now found themselves out of court, and the doors barred to all future entrance except for the purpose of considering the question of the compensation of the assignee.

It seems to us manifest that there has been in this case a denial of several absolute and valuable rights which the law guarantees to the creditors of an insolvent estate. They had a statutory right to have an account rendered by the assignee in substantial conformity with the terms of the statute; they had a statutory right to file objections to such an account after examination thereof (sec. 1701); they had a statutory right to inspect the books of the assignee, and examine the officers of the assignor and other witnesses prior to the final adjustment and approval of such account (sec. 16935; Berles v. Comstock, 104 Mich. 129); they had a common-law right, arising from their relations to the property and to the assignee, to examine the books of the assignee, and the assignee himself, prior to the final approval of such account. All these rights were valuable and absolute rights, to be exercised within reasonable limits, but which, in the present case, were wholly denied to the creditors; and, unless there be adequate remedy for such denial in the regular exercise of the appellate jurisdiction of this court, it is difficult to see why the superintending jurisdiction should not be exercised to quicken the neglect or refusal of the circuit court, and compel it to act within its jurisdiction. Merrill, Mandamus, § 204.

But it is argued that, inasmuch as an appeal lies from, the order settling the assignee’s account (sec. 1101), as well as from the other orders made in the assignment proceedings (sec. 1702i; In re Gilbert, 94 Wis. 108); there can be no remedy by mcmclamus. The general rule of law undoubtedly is that mandamus will not lie where there is a remedy by appeal or writ of error. Merrill, Mandamus, § 201; 2 Spelling, Extr. Relief, § 1390; State ex rel. Spence v. Dick,, ante, p. 407. But the remed}*' by appeal must be substantially adequate in order to prevent relief by mandamus.

If it appears that an appeal will not be an adequate remedy, mcmdamusTCi&j still issue, in the discretion of the court. Merrill, Mandamus, § 201; Merced M. Co. v. Fremont, 7 Cal. 130; Hawes, Jur. § 141. In the present case it is quite apparent that appeals from the orders complained of would in all reasonable probability constitute no remedy to the creditors. The assignment was made June 1, 1893. A large portion of the assets of the bank consisted of commercial paper executed prior to that date, and necessarily maturing in the summer and early fall of 1893. Such of the paper as is still uncollected and has not been sued on will become barred by the statute of limitations within a few months. Eurthermore, the long lapse of time which has occurred since the assignment renders it almost certain that rights of action are daily lapsing. Appeals from such orders could not, in the ordinary course of appellate proceedings, be heard and decided before late in the coming autumn or in the winter of 1899. It is very plain that, if the creditors are to exercise their rights with any prospect of benefit, they must exercise them promptly. The delay attending upon the presentation and consideration of an appeal would probably be fatal to any effective relief.

Again, it is said that the orders in question are discretionary in their nature, and reliance is placed upon the well-known principle that mandamus will not lie to control the exercise of discretion. It has already been shown that the rights which have been, denied to the creditors here were absolute rights, and not dependent upon the discretion of the court. True, the rights must be reasonably exercised, and in this respect there may exist some degree of discretion in the trial court; but the case fails to show that the objecting creditors have chosen an unreasonable time or manner for the exercise of their rights, or that they have been guilty of laches. They set the proceedings in motion to require an accounting by the assignee more than a year ago, and cannot be held accountable for the long delays "which have occurred since that time. A writ of mcmdarmis compelling the trial court to accord to the creditors the exercise of their clear rights in the assignment proceedings cannot, therefore, be held an interference with judicial discretion, when no attempt is made to control the action of the court, or prescribe its judgment, after such rights have been exercised. Merrill, Mandamus, § 204 Furthermore, it is not entirely accurate to say that no act involving discretion can be controlled or corrected by mandamus. "Where it clearly appears that discretion has been not merely abused, but not exercised at all, or that the action taken by the inferior court is without semblance of legal cause, and no other-adequate remedy exists, mandamus will lie to compel the specific action which should have been taken. Merrill, Mandamus, § 40; State ex rel. Buchanan v. Kellogg, 95 Wis. 672. Such cases are, however, more apparent than real exceptions, to the rule, because, .when only one course is open to the court upon the facts presented, the pursuance of that course becomes the plain and absolute duty of the court, and the refusal becomes, in effect, a failure to perform a duty within its jurisdiction. It is not meant by this, however, that mmi-damus will be used to perform the functions of appeal or writ of error, as seems to have been the tendency iff the supreme courts of Alabama and Michigan. The duty of the' court must be plain, the refusal to proceed within its jurisdiction to perform that duty must be clear, the results of such refusal prejudicial, the remedy, if any, by appeal or writ of error utterly inadequate, and the application for relief by mandamus speedy and prompt, in order to justify the issuance of the writ.

This brings us to the consideration of another objection made by the respondent, namely, that the various orders made by the court below confirming the assignee’s account and refusing the applications for examination cannot be reversed upon momdanms, and hence that, being unreversed and unappealed from, they constitute complete bars to any relief by mandamus. This difficulty, also, is more apparent than real. While it is true that the legitimate function of the writ of mandamus is to compel action by the inferior court, rather than to reverse action already taken, it would be gross absurdity to hold that, after refusal to perform a plain duty within its jurisdiction, the inferior court could nullify the constitutional grant of superintending power by the entry of any order or orders. This court holds its power under no such uncertain terms. Those powers are not dependent upon the speed with which the trial court enters orders, If it becomes necessary, in the due discharge of its' power of superintending control, that orders of the inferior court be vacated, this court will not hesitate to compel the vacation of such order by the inferior court by so framing its writs of ma/ndamus. With the superintending control and the attendant writs this court took all the power necessary to make that control and those writs effective, and its arm is not nerveless because no writ may be found in the form books so framed as to meet the emergency. The .writ will be framed to meet the exigencies of the case, and the court will discharge the duties of the trust reposed with it by the people, though it becomes necessary to modify and enlarge the terms of the ancient writ.

And so we have reached the conclusions briefly stated in the memorandum decision which was filed at the time of the decision of the case. There are yet remaining, however, two matters which require discussion. When the application for the writ was presented to us, there at once arose an apparent diificulty, resulting from the fact that the record in the court below was not before us, and would not be brought up by the writ. It is true that the petition set forth many of the facts, and contained copies of the orders complained of, and of the affidavits on which they were based, but the assignee’s account was not here, nor the minutes of the clerk, and it seemed quite apparent that the entire record should be before us upon the hearing upon the merits. Upon consideration, the court, of its own motion, issued with the alternative writ of mandamus its writ of eertiorari directed to the clerk of the trial court commanding him to return the original records for the sole purpose of placing before us the entire record as it existed in the trial court. The writ of certiorari was thus issued as ancillary only to the writ of mandamus. While the writ of certiorari is generally issued as an independent writ for the purpose of reviewing action below, it is well adapted to, and is frequently used for, ancillary purposes only, as a means of bringing up a record for use upon the hearing of another and different writ. “ As a matter of practice in England and in this country, the writ of cerUora/ri is granted as an auxiliary process in the courts where causes have been removed by other remedy.” Harris, Certiorari, § 9. In the courts of the United States it is commonly .used as auxiliary to the writ of habeas corpus for the sole purpose of bringing up the record. Ex parte Yerger, 8 Wall. 85; Ex parte Lange, 18 Wall. 163; Ex parte Royall, 112 U. S. 181. It is also used in aid of a writ of error or .appeal where diminution of the record appears. Fisher v. McNulty, 30 W. Va. 186; State v. Randall, 87 N. C. 571; Field v. Milton, 3 Cranch, 514; Fowler v. Lindsey, 3 Dall. 411. But, even in the absence of direct authority, the writ is so well adapted for such, use that we should feel no hesitation in using it in a case where the court has obtained jurisdiction by other process, and where the presence of the-record is necessary, and it is wholly or partially absent.

The remaining question referred to arose upon the hearing of the return to the alternative writ. It was claimed by the respondent that issues of fact were raised by the return. to the writ and the answer to said return, and that the said issues must be tried either in the circuit court for Milwaukee county or some other circuit court, as provided by sec. 3152, Stats. 1898. That section provides that issues of' fact in a mandamus proceeding in this court shall be tried in the circuit court of the county within which the material facts are alleged to have arisen, or in some other circuit court to which this court shall, in its discretion, for cause shown, order such trial. This contention was summarily overruled for two entirely sufficient causes: First. There are no true issues of fact raised by the return and answers thereto. The issues raised, upon analysis, will all be found to be issues of law. There are no material contentions raised as to the rulings of the court, nor as to the papers upon which those! rulings were based, but the sole material contentions are as to the legal effect of those rulings, and the legal rights of the parties as shown by the record. Second. Even admitting that issues of fact”were raised by the answer, we cannot admit that the legislature has any power to deprive this ’court of any part of its constitutional jurisdiction to fully hear and try such questions. Ey the constitution this court was given power to exercise fully and completely the jurisdiction of superintending control over all inferior courts. This power carries with it not only the writs necessary to-its exercise, but the right to hear and determine the cause when the writ has brought it before the court. No part of' that power can be taken away by a statute. This court will always pay all due deference to the legislative will, and. upon mere questions of practice or orderly proceeding will lieed and conform to the statute; but when the statute invades or attempts to take away any of the constitutional powers of the court the court would be untrue to itself, and to the people, from whom it holds its commission, if it permitted the statute to control. As said in Klein v. Valerius, 87 Wis. 54, “ It must be remembered that this court as well as the legislature gets its judicial power and jurisdiction directly from the constitution.” It may well be that when a tona fide issue of fact is presented in a mandamus proceeding, and one which involves the hearing of oral evidence outside the record, this court will, for convenience,, order the preliminary trial of such issue to be held before the circuit court, the findings or verdict being subject to final revision by this court, as has been done in several cases. State ex rel. Field v. Saxton, 14 Wis. 123; State ex rel. Covenant M. B. Asso. v. Root, 83 Wis. 667. But the statute cannot be considered as obligatory upon the court, especially in a case like the present, where the questions at issue arise upon the record alone, and where the course presented by the statute would amount to a denial of relief. Such a holding would amount to a practical abdication of constitutional powers, or rather, perhaps, to a submission to legislative invasion of constitutional powers.

No costs will be awarded against the respondent, but the fees of the clerk of this court will be taxed and paid out of the assigned estate.

By the Court.— Judgment is ordered that a peremptory writ of mandamus issue in accordance with this opinion, and that the record transmitted to this court in response to the writ of certiorari be at once remitted to the trial court.