136 Wis. 1 | Wis. | 1908
The present application is confessedly addressed to the power vested in this court by the constitution of superintending control over inferior courts. The meaning of that grant of power was very fully expounded in State ex rel. Fourth Nat. Bank w. Johnson, 103 Wis. 591, 79 N. W. 1081, and the following conclusion reached and stated at page 614 (79 N. W. 1087) :
“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 exercised upon light occasion, or when other and ordinary remedies are sufficient, but to be wisely*5 used for tlie benefit of any citizen- when an inferior court either refuses to act within its jurisdiction, or acts heyond its jurisdiction to the serious prejudice of the citizen.”
Since that case was decided the nature of this power has been the subject of very much explanation, but hardly with the result of greater clearness or exhaustiveness than in the words just quoted. Some of the more important of the later oases are the following: State ex rel. Mitchell v. Johnson, 105 Wis. 90, 80 N. W. 1104; State ex rel. Fourth Nat. Bank v. Johnson, 105 Wis. 164, 83 N. W. 320; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158; State ex rel. W. G. Taylor Co. v. Elliott, 108 Wis. 163, 84 N. W. 149; State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587; In re Gates, 117 Wis. 445, 94 N. W. 292; State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 107 N. W. 500; State ex rel. Milwaukee E. R. & L. Co. v. Circuit Court, 133 Wis. 442, 113 N. W. 722; State ex rel. Milwuakee E. r. & L. Co. v. Circuit Court, 134 Wis. 301, 114 N. W. 455.
It will be observed that one limitation upon the exercise of this power, stated in the first Johnson Case and many times reiterated, is the absence of any other adequate and sufficient remedy. 2 Spelling, Extr. Relief, § 1392;-High, Extr. Leg. Rem. (3d ed.) § 177; State ex rel. Meggett v. O’Neill, 104 Wis. 227, 80 N. W. 447; In re Gates, supra. We, therefore, elsewhere in this opinion, without express reiteration, must be understood as intending that qualification in all cases where it may be stated the power exists. It is not material to the present case, for both parties concede and proceed on the assumption that if the acts of the circuit court here complained of are otherwise within reach of our superintending jurisdiction, exercisable by the writ of mandamus, other adequate remedy is wanting and that a case of exigent prejudice to public welfare is presented. State v. Kemp, 17 Wis. 669; State v. Grottkau, 73 Wis. 589, 41 N. W. 80, 1063; Von Rueden v. State, 96 Wis. 671, 676, 71 N. W. 1048; U. S. v. Sanges. 144 U. S. 310, 12 Sup. Ct. 609.
There is some contrariety of opinion as to just wbat questions are preliminary under this doctrine, and when the lower court will be considered to have entered upon consideration of the merits of the controversy. The English and Kentucky cases above cited present antithetic decisions upon that distinction. The ruling of the trial court in this case, that the action of the grand jury was void and that no indictment exists against Biersach to arouse either power or duty in the circuit court to try him, is, however, clearly a preliminary one within the most restricted definition of that term. Obviously that court has stopped short not only of any consideration of the guilt or innocence of the accused, but even of those earlier considerations whether the facts stated in the indictment would if proved constitute any crime. We conclude that a situation is presented to arouse the jurisdiction of this court under its power of superintending control to command the lower court to proceed to perform its duty to judicially consider and decide upon the criminal charge made by this indictment; to try the case of State v. Biersach; if, indeed, not precluded from so doing by invalidity of the indictment — a question we proceed to consider.
The evidence upon which the circuit court acted, while somewhat extended, may be summarized as follows: The jury commissioners met at the December, 1903, term of the municipal court of Milwaukee county and proceeded to select at least seventy-five persons whose names should be placed upon a list from which grand jurors shquld .be drawn. They made such selections, the names being written under their direction by one Mr. Wieber, who acted as the clerk of the jury commissioners. Upon this list was set the name “George J. Davies.” The law required no further designation; but
The foregoing states substantially all of the material facts from which the circuit court had to decide that the man who was called and did serve on the grand jury was not the person who had been selected for the jury list by the jury commissioners. The use of a middle initial, while it is said to have no significance in law, may of course under some circumstances be very significant of the identity of the person named; but that significance varies very much with circumstances, and the misplacement of an initial used by one whose current Christian name is also used is so probable and frequent an occurrence, at least among those whose acquaintance with him is not exact and intimate, that its significance is very much diminished. "While the jury commissioners had no official duty to state the place of residence of the man whom they selected, the fact that they did state it is none the less significant of the identity of the man whom they had in mind in placing the name on tire jury list, and we think is of so vastly greater weight than the mere transposition of the letter “ J” in this name, as to entirely outweigh it; but when we add to this the apparent fact that the same jury commissioners, in the process of preparing the slip for insertion and withdrawal from the box and the record of it on the list of the grand jury actually drawn, discovered that the George J. Davies who appeared by the directory to live on Cedar street had apparently been designated thereon and industriously
It is further urged that the relief sought in this proceeding is the vacation of a certain order and that mandamus is not the proper remedy therefor. State ex rel. Pfeiffer v. Taylor, 19 Wis. 566; State ex rel. W. G. Taylor Co. v. Elliott, 108 Wis. 163, 84 N. W. 149; State ex rel. Winchell v. Circuit Court, 116 Wis. 253, 93 N. W. 16. This contention is based upon a misapprehension. The real and practical purpose, and obviously the primary one, is to require the circuit court to perform its duty to consider and decide upon the criminal charge presented, which it has refused to do. The fact, if it be such, that some orders theretofore made in that court constitute a formal obstacle to his so doing, merely invites an enlargement of the command which this court shall issue to the effect that the trial court tahe formal action necessary to remove those obstacles, as ancillary to and in aid of the primary relief sought and granted. That was the exact situation in both of the Johnson Cases, where the thing commanded was obstructed by certain orders entered by the court, and it was urged that they could not be reversed by mandamus, even to enable the performance of an act which the court’s duty required. The court said (103 Wis. 624, 19 N. W. 1091) :
“This court holds its power under no such uncertain terms. Those powers are not dependent upon the speed with which*13 tbe trial court eaters 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 writ of mandamus.’1
The same distinction was also noted in the opinion in State ex rel. W. C. Taylor Co. v. Elliott, 108 Wis. 164, 84 N. W. 149. When, therefore, it is concluded that the circuit court should be directed to proceed with his duty as above stated, it is entirely within the power of this court to command that he remove any obstacles to such proceeding which his own improper acts have erected. The command of the alternative writ goes no further than this..
We understood respondent to concede that nothing material could be added to the petition and alternative writ by return, so that therefore the merits might be decided on the present hearing.
Ey the Court. — Let imperative writ issue.