*1 Municipal Respondent, v. Wittig, Gall, ex State rel. Bay, Appellant. Village Justice of the of Whitefish May 9, Argued April 1969. Decided No. 218. 577.) (Also reported in 2d 167 N. W. *7 appellant For the by Harry there were Hayes, briefs J. attorney, and Herriott, special Maxwell H. counsel, both Milwaukee, argument by and oral Mr. Herriott. respondent
For there by Shellow, was brief Coffey Shellow & and Robert Friebert, H. all of Milwau- kee, argument by and oral Mr. Friebert. J. From arguments the briefs and
BeilfüSS, parties counsel for the we deem the issues to be: prohibition 1. permissible Is proper remedy? 2. by the ordinance, Does terms, pro- its exclude the posed respondent activities of the ?
3. applied Is the ordinance as respondent to the con- stitutional? propriety
The proceeding prohibition writ seriously is not appellant. contested reply In his appellant, brief response respondent’s claim prohibition that appropriate is an remedy, states, “We
603 challenge appellant does, do The contention.” however, adequate insist other remedies there are police requiring him as mandamus to the chief of permit, alleged of the ordinance viola- trial challenge tion, declaratory judgment con- validity stitutional the ordinance. Krueger Gaynon
In State ex (1966), rel. v. 2dWis. 609, 614, 143 437, N. W. 2d the court stated: “Traditionally, keep this writ was used to an inferior acting jurisdiction court from no outside its when was there adequate remedy by appeal or otherwise. State ex Superior rel. (1961), 77, Mitchell v. (2d) Court 14 Wis. 522; (2d) 109 N. W. State ex rel. v. Anderson Kiekhaefer (1958), (2d) 485, (2d) 790; 4 Wis. 90 N. W. State ex rel. County v. (1961), (2d) Peterson Court 37, 108 Wis. (2d) 146; Gregorski N. W. State ex rel. Fieldhack v. (1956), (2d) But, pointed Wis. 76 W. N. Drugsvold out Wis. v. Small Claims Court (2d) 228, (2d) 108 N. W. the writ been has expanded ‘nonjurisdictional to cover cases error when appeal may redress, come too late for effective inadequate and there need for such intervention grave hardship complete rights avoid of a or a denial of the ” litigant.’ respondent prohibition appropri- contends ate, only adequate remedy here, and the because it is remedy prevent the most effective interference with alleged his press constitutional of freedom of the *8 censorship. addition, without In permits speedy a right determination of delays that and of trial avoids alleged possible of the appeal. violation and respondent Because the has demurred to the return appellant-municipal findings the justice, the of the (made police part chief return), of the are in not dispute. purpose For the proceeding, of this the re- spondent police Gall concedes the chief was of the designated opinion that issues con- KALEIDOSCOPE tained obscene matter. contend, however, He does gives the ordinance police which the chief of sole to entitled he right and that is unconstitutional of that issue. adequate speedy determination and by the determined could The he constitutional he by suggested appellant because the but procedures prohibition we challenge appropriateness of does reserving merits, for future on their reach the will issues litigant position of the in the determination whether remedy prohibition as respondent entitled to a like situation. matter of in merchant respondent the transient The Gall contends by terms, his question, excludes its own ap- Bay. and Gall, letter activities Whitefish his cir- permit, himself plication identified for the sought a manager KALEIDOSCOPE culation publication persons on the permit to sell the for six Bay. streets Whitefish Included, (a) section This “(2) Not Sec. 15.07 Who selling persons include the not be held to acts
shall services, goods or at wholesale to materials dealers dairy products, newsboys, articles, nor vendors of such to goods, groceries juices, bakery products or ice to fruit any regular of livering nor shall any routes, nor acts on established customers employees in area merchants or their de- the local business, regular goods, in course apply or be held to include this section gardener vend, farmer truck who or or shall sell dispose of, sell, dispose products or offer vend or of the garden by him, occupied of the farm nor and cultivated governmental agents performance in the of their official duties.” argued newsboys
It reference means regardless they any newsboys of whether sell “to regular respondent customers on routes.” The established interprets newsboys, to read: “. . . nor section any regular . vendors . . cus- to] [who sell] [nor on established routes.” tomers unambiguous permit The ordinance is does not given respondent. to it construction ordi- *9 exceptions nance on the nature of the trans- creates based parties by on action or involved and it estab- does so lishing by separate categories, (1) which are: sales dealers; (2) wholesalers on estab- sales customers routes; (3) by delivery lished local merchants regular business; (4) course of and sales farmers gardeners grown products; (5) truck their own governmental agents. category Each save first begun say, “nor.” does with asks too much to It as respondent, inadvertently a “nor” that left out was “newsboys” between and “vendors.” pattern except The overall of the ordinance is to those public who do not to the or sell or sell those who regular permanent deliver on a or basis established patterns. appears, therefore, newsboys It are regular they excluded unless sell or deliver to customers on established routes.
Appellant village asserts that Merchant Transient delegation authority Ordinance valid to the police. chief of respondent (sec. 15.07) the ordinance contends applies any if
unconstitutional publication for reason it violates the first fourteenth amendments Constitution, United I, States and art. 3 of sec. Constitution, the Wisconsin both on its face and as applied. confidently
It can said, be without authority, citation of rights that the speech freedom of and freedom of the press provided for in the first amendment of the United Constitution abridged by States cannot state or subdivision thereof virtue of the fourteenth rights amendment. The same are extended even more explicitly by I, art. sec. 3 of the Wisconsin Constitution: “Every person may freely speak, publish write and his being subjects, on all responsible sentiments for the abuse right, and no passed laws shall be to restrain abridge liberty speech or press. . .”. *10 designed an anti- not as ordinance, course, of was
The It is censorship obscenity a ordinance. nor ordinance as ordinance. merchant says title is—a transient what its investigate police delegates chief of and the It directs applicant for moral character of the the and business necessary for permit he deems a transient merchant’s permit in ac- deny good the public and then issue or the findings. cordance with his he permit-holder regulations placed are
The on visit, of his misrepresent product, or nature his the not revoca- food, expiration or unwholesome after the sell sell keep from dirt permit, area free tion of and the his and insects. denying permit police found that
In chief of the the past contained of of KALEIDOSCOPE some issues likely such matter contain obscene matter would effect, publication has, in censored the the future. He yet published prohibited of not future sales issues Bay. on of the streets Whitefish speech press are two The freedom of and freedom of guarded jealously most and basic constitutional our Throughout rights. years, especially last few by country, years, decided the courts the cases Supreme Court, particularly United have States rights infringed. steadfastly proclaimed these cannot be However, “Liberty speech, press, and of the also not 1 right, punish an absolute and the State its abuse.” correctly points appellant out
The the sale of recognized abuse matter of the and is obscene by protected our either federal state constitutions.2 1 697, 708, (1931), Sup. 625, Near v. Minnesota 283 U. S. 51 Ct. L. Ed. 75 1357. 2 419, (1968), 1; v. 2d State Voshart 39 Wis. 159 N. W. 2d 110, (1960), 286; v. Chobot 12 Wis. 2d 106 State N. W. 2d Gins berg (1968), 629, Sup. York v. New 390 U. S. Ct. 195; 2d Roth v. L. Ed. United States 354 U. S. Sup. 1304, 1 2d Ct. L. Ed. posture present of this case in its do not issues encompass a determination of whether identified obscene matter. issues KALEIDOSCOPE contained Our concern must be limited whether method provided by by village for the ordinance and used constitutionally permissible prevent the distribution of KALEIDOSCOPE. problem appellant
A first raised is the con regula tention prohibit that the first amendment does not soliciting tion business the sale of periodicals by or the sale local transient merchant authority *11 cites Breard v. and as Alexandria (1951), 341 622, Sup. 920, 95 U. Ct. Ed. S. L. prohibited
In Breará local ordinance house-to-house goods solicitation for sale of prior the or without wares magazine consent of A agency, the owners. circulation selling among magazines, Saturday Evening other The challenged Post, validity the constitutional of the ordi- infringement press. an nance as on The free ground upheld upon the it a reasonable and was that was protect privacy valid restriction to the of the citizens community. pointed of the court out that it was upon an circulation; not unreasonable restriction con- magazines ventional means to their advertise and sell agencies radio, press, mail and local were still available provide maga- for circulation. The circulation the contained, zine not restricted was because what it prohibited nor was circulation manner other than community deemed the to be and obnoxious an affront privacy. Such is the situation here. Gall is denied right newspaper to sell or circulate his not because of paper manner which he sells the but because of paper what contains. Breard regu- was a reasonable circulation, lation distribution or case censor- is ship. censorship question or of whether
We now reach the constitutionally prior press publications can restraint permitted. be supra,
In Minnesota, Near v. the United States Su- pages 713, preme Court stated at 714: “ liberty press of the ‘The indeed essential state; laying a free no nature of previous from censure but this consists upon publications, and not in freedom restraints Every published. for criminal matter when lay freeman he undoubted what has sentiments destroy pleases public; this, before the forbid is to press; publishes if freedom of the but he what improper, illegal, take con- mischievous or he must 152; sequence temerity.’ 151, Com. his own Bl.
A multitude of come before the courts cases have dealing past years problem few with the of censor- generalization ship prior and can be restraint. As degree censorship prior said that some and restraint any chilling upon can exercised, but effect freedom press speech regarded suspicion with heavy judicially censor an affirmative burden of has establishing unprotected that the censored materials are great dispatch. do must so with Maryland (1965),
In Freedman v. 380 U. S. *12 59, Sup. 734, 649, following Ct. L. Ed. 2d the guidelines appear: “Applying cases, the rule of settled our we hold that process requires prior a noncriminal mission which the sub- of a film a censor avoids in- constitutional firmity only place procedural safeguards if under it takes designed dangers censorship system. to obviate the of a First, expression proving unprotected the burden of that the film is on Speiser must the censor. rest we As said Randall, 513, v. 526, 357 U. S. ‘Where the transcendent involved, speech process
value of is due certainly re- quires . . . the bear persuasion State burden the appellants engaged to show that speech.’ criminal Second, may require while the State advance submission effectively films, proceed of all to bar all in order to showings unprotected films, requirement cannot be a an effect administered in which would lend manner finality film a determination whether censor’s teaching protected expression. The of our constitutes that, only judicial cases because a determination sensitivity adversary proceeding necessary an ensures requiring expression, only procedure to freedom a a judicial impose determination a valid final suffices Books, Sullivan, supra; Inc. restraint. Bantam v. See Quantity A Kansas, 205; Books v. Marcus v. 378 U. S. Warrant, supra; Enterprises, Day, Search Inc. Manual v. 478, end, 370 U. S. 518-519. To this the exhibitor must assured, judicial be statute or authoritative construc tion, will, specified period, that the a censor within brief go showing either a license or to court to restrain Any the film. judicial imposed in of a restraint advance final similarly determination on must the merits preservation quo limited to of the status for the shortest period compatible judicial fixed with sound resolution. Moreover, expiration refusal that, we are well aware even after temporary restraint, of a an administrative license, signifying the view film censor’s may unprotected, discouraging a on have effect supra. Books, exhibitor. Bantam Inc. Sullivan, See v. Therefore, procedure prompt must also assure judicial decision, final to minimize the deterrent effect of an possibly interim and denial of a li erroneous cense.” quotations pertinent
Additional are: long “It settled line recent decisions of this which, an one, Court that like this makes the peaceful enjoyment of which freedoms the Constitution guarantees contingent upon the will uncontrolled of an by requiring permit or official —as license which granted be is or withheld in discretion of such official— censorship prior upon unconstitutional restraint enjoyment Baxley of those freedoms.” v. Staub 313, Sup. S. 355 U. Ct. 2 L. Ed. 2d done, fact, Rhode Island “What has been has subject publications system the distribution of to a prior restraints, administrative since the Commission is *13 particular body to list judicial and decisions not its judicial de- publications objectionable do not follow as lawfully be publications such terminations expression Any system prior restraints banned. against bearing heavy presumption to this Court comes its Books, Inc. v. validity.” Sulli- Bantam constitutional 631, 2d Sup. 9 L. Ed. van Ct. U. S. 584.
Upon we must hold basis of law the established question applied in instance the ordinance as in this prior without con- censorship in restraint does result stitutionally safeguards. decreed delegates ordinance, applied, an executive or
The as duty to administrative official censor judicial publications review and affirmative without or definition what without semblance standards only effect, prohibited. Here, there was not existing publications contained ob- determination that but, addition, scenity safeguard without constitutional publications a determination that future would contain applied material. The as unconstitu- tional. aptly pointed
As out the trial court its memo- randum : “Although licensing provision unconstitutional, against society go unprotected does the distribution clearly provides literature. state law obscene lewd, for the seizure of material in obscene or indecent written declaratory Chapter special judgment A Attorney enacted in 1961 enables statute the District against any magazine book, proceed other or written enjoin Finally, in order matter its distribution. 944.21, Stats., felony punishable by Wis. it a makes years, both, $5,000.00 five publish or or or sell lewd, or obscene indecent written matter. These are the legal proper burning routes to resolve the Kaleidoscope permitted
whether should to be sold published community.” By judgment the Court. —Order and affirmed.
611 (dissenting). majority The Robert W. Hansen, J. opinion upholds prohibition the of issuance of writ restraining justice proceeding municipal in from in village’s involving merchants’ case the transient finding peddlers’ despite ordinance. It does its so by primary the issue raised the “could be determined suggested procedure appellant,” the wit: mandamus to permit, police requiring to chief of the him to issue the alleged declaratory of trial ordinance violation and challenge judgment validity to constitutional availability only ordinance. To which we would add appeal of a trial novo in the de circuit court on judgment justice entered in the court. question
Actually, prohibition of whether is avail- right justice able a matter of in defendants courts village in cases not be reserved as the suggests. majority It has been decided a case to dissenting opinion which this will refer more than once.1 infer We now that should short-cut route again, that, traversable when we never said earlier extraordinary except hardship, being cases it was justice closed to all court traffic. majority opinion put up does at a “Slow. least warning,
Proceed Caution” perhaps With a “Stop. even sign End of Road” remedy to the use of extraordinary justice of prohibition in the court area. It reserves “. . for future litigant . determination whether a in the position respondent of the remedy is entitled to the prohibition right as a matter of in a like situation.” determining prohibition
In if or when stop lies to ac- justice in a tions court that village seeks enforcement ordinances, VII, we deal with art. sec. 8 of the Wisconsin grants Constitution which to “super- circuit courts visory control” over “inferior courts” and the 1State ex rel. v. Anderson 2dWis. Kiekhaefer N. W. 2d 790. give general con- “necessary them a writs ... thorough of this discussion courts.” A
trol over inferior ap- power is to be exercised manner which it super- pears early clear case.2 It makes about, visory power “. fenced so circuit courts . . is aggregate, functions, ancient speak, of the in the constitution, and prior to the used to writs exercise thereby purpose.” ancient preserved Such for the same prohibition, mandamus writs were to be stated those *15 and certiorari.
In the could be said as was said case before us it Case, presented in the fundamental “The issue Kiekhaefer appeal proper a in which on this whether is case is this remedy extraordinary to of resort to have invoked the parties prohibition.”4 Kiekhaefer, a writ of In the primarily prohibition to be debated as whether against judge except a of a invoked lower court exceeding judge jurisdiction. the where is his situation prohibition may that be case court invoked in This held jurisdictional appeal non error “in a where situation judgment from come for effective the would too late great hardship would if writ redress result such 5 beyond However, not issued.” the court were went litigants limited stressed the and set down two limiting governing issuing requirements judges circuit against prohibition courts, particularly inferior writs village municipal j ustices: (1) party “In prohibi- order entitle a to to a writ of tion, be only the error results the attacked must not him, prejudicial extraordinary involve to but must ” hardship. nal.) origi- (Emphasis in the [Citations omitted.] 6 2 College State ex rel. Milwaukee Medical v. Chittenden (1906), 500. 127 Wis. 107 N. W. 3 page Id. at 512. 4 supra, v. Anderson page at 488. Kiekhaefer Id. at page 490. Id. at page (2) principle “It ais further well-established prohibition adequate remedy will not lie where there is omitted).” appeal (citations apply pro-
We would these limits to use the sound hibition here as the did in cases court Both Kiekhaefer. charged village involve of a Both violation ordinance. right proceed municipal justice cases involve the of a charge village to hear a violation ordinance. such right cases, In both defendant a trial has de guilty novo if found circuit court he is justice right In court. court found Kiekhaefer remedy adequate law, to a de trial novo to be an at thus barring of a defendant seek and secure prohibition against municipal justice. writ of position respondent prohibition that a writ of is preferable appeal argument solely based on litigation protracted. although enough, can true This is village likely justice not at However, so court level. possibility, probability, in the realm of remains support absence of affidavits that the naked assertion. there no than Where more the relator’s claim that inapplicable him, “The ordinance or, if *16 applicable, coupled is unconstitutional” with a claim that litigation protracted” justify “could be this does not seeking securing prohibition against his a writ of proceedings. justice Something court more is needed to required “extraordinary hardship” establish or “in- adequacy” importance of alternatives. The of the issue prohibition not such additional involved is factor because solely governing guide- to used to a is not be establish type.8 of the line for future cases same 7 page at Id. 8 Drugsvold (1960), See v. Claims Court Small 13 2dWis. 648, quoting approval Jur., 108 N. W. 2d with from 42 Am. Prohibition, p. 141, prohibition 6: will a court sec. “Nor issue in justified, purpose establishing a is not for case where it the sole principle govern a other ex eases.” See also State rel. Kowaleski
614 remedy adequate in were law an defendant has village violating guilty ordinance found
he be novo village justice. remedy de the trial That is appeal. on entitled in he the circuit court to which may why well may the relator That there be reasons or appeal de novo prefer prohibition and trial to such appeal or such not make other alternative does remedies a “inadequate remedies” nor constitute show- alternatives ing hardship.” trial novo—a “extraordinary If a de wiped an ade- starting with over the slate clean —is against municipal remedy any imperfection a quate being “adequate” justice proceeding, the word court given meaning. strange a new and type appeal keep important
It in mind the involving charge of vio- defendants in assured cases jus- lating village by municipal a after a trial 306.17, provides novo Stats., for de tice. trial Sec. justice appeals civil Prom from courts all cases. early ap- date, been such trial de novo has assured appeals justice pellants court on to the circuit from courts in all criminal cases.9 right appeal on to the circuit from such court
Does Wittig Municipal judgment Lawrence adverse Justice M. against defendant, pro- novo, with a enter trial de Gall, relator, adequate M. with an vide the Dennis assuming judgment remedy, was claimed to jurisdictionally constitutionally procedurally, im- be does, perfect? if We believe relator admitted appeal.10 pending trial bail 363, 372, District Court 254 Wis. v. N. 2dW. “ only stating: should be ‘Prohibition . . . issued in cases of ex- necessity prohibition . . treme . will court Nor . . for . establishing purpose principle govern the sole other cases. ” ordinarily a Nor will it be issued doubtful case.’ supra, Kiekhaefer, page cases cited therein. directly quoted Case, page from the This is at Kiekhaefer 491; saying: appeal court there “Does to the *17 judgment circuit court from adverse Justice of the Peace against defendant, novo, enter a trial Neuser with there de
615 judge prohibition Where a a writ of circuit issued has against municipal justice barring proceedings further including village in a case of a we violation quote hold, is, therefore, would our “It Kiekhaefer determination been issued that the writ should have showing for the there twofold reason that no was adequate appeal hardship, provided undue an rem- 11 edy.” prohibition So we would conclude writ should have been not here issued would reverse and remand with directions to enter a writ of consultation authorizing justice municipal proceed the defendant original in the if ordinance violation action no writ prohibition exactly had been issued as was done in Case. Kiekhaefer amI authorized to state that Mr. Leo B. Justice Hanley joins in this dissent. error, Plaintiff Defendant Blackwell, State, v. error. cases.] [Two Argued April May 9, Nos. State 127. 1969. Decided 1969. reported (Also 587.) N. W. 2d provide adequate remedy, relator Kiekhaefer with assum- ing that the defendant committed error ... ? We believe that it pending if appeal. does relator be admitted to bail trial language quoted approval This [Citation was omitted.]” with Beaudry ex rel. v. State 418, 423, Panosian 2dWis. W. 2d N. 48. page Id. at