13 Wis. 383 | Wis. | 1861
By the Court,
The relator sued out an alternative mandamus to compel the judge of the circuit court of Milwaukee county to proceed to the trial of an indictment which had been transferred to that court from the municipal
We have carefully examined both of these objections, and we think neither is valid. The constitution, art. VII, sec. 2, provides that “ the legislature may vest such jurisdiction as shall be deeemed necessary in municipal courts,” &c.: “Provided, that the jurisdiction which may be vested in municipal courts shall not exceed in their respective municipalities, that of circuit courts in their respective circuits, as prescribed in this constitution.” The act organizing the Milwaukee municipal court, does not confine its jurisdiction to the city of Milwaukee, but extends it over the entire county. And the objection to its legality is based upon a restriction which it is claimed that the foregoing language of the constitution imposes on the power of the legislature, requiring the jurisdiction of a municipal court to be confined territorially to the city or incorporated village in which it may be located. It was conceded, and could not well be denied, that both counties and towns are, in a general sense, municipalities. But it was claimed that the word “ municipal ” was used in the above clause in a stricter sense, and includes only cities and incorporated villages. This construction certainly finds some support in the remarks of this court in Norton vs. Peck, 3 Wis., 722; though the precise question as to the power of the legislature in establishing municipal courts was not presented by that case. But without determining whether or not it would be possible for the legislature to establish a municipal court, without locating it in a city or incorporated village, we are all of the opinion that if such court be so lo-
The only other question is whether the municipal court,
But we have come to the conclusion that the law as it now is authorizes the change to the Milwaukee circuit court. It is conceded that the general provisions concerning the change of civil actions, found in chapter 123, sec. 6, B. S., 1858, contemplates a change to another county. So also did the provisions of chapter 95, B. S., 1849. And if these were the only provisions upon the subject, we should hold that the municipal court was bound to send the case to another county. For sec. 2, chap. 178, B. S., 1858, provides that a defendant in a criminal case may apply for a change of venue on account of the prejudice of the judge, “in the manner provided by law for a change of venue in civil actions,” and the judge shall “ award such change of venue,” &c. If the
It follows that the circuit court should proceed to try the indictment, and that the peremptory writ must be awarded.