State Ex Rel. Arthur v. Proctor , 255 Wis. 355 ( 1949 )

Petition for a writ of mandamus filed January 22, 1949, by Robert W. Arthur, district attorney of Dane county, to compel the Honorable ROY H. PROCTOR, judge of the superior court of Dane county to proceed with the preliminary examination in the case of State of Wisconsin vs. Solomon Marachowsky. From an order of March 3, 1949, granting the writ and overruling defendant's motion to quash the alternative writ, the defendant appeals.

On December 10, 1948, the preliminary examination in the case of State of Wisconsin vs. Solomon Marachowsky was commenced before the defendant judge. Marachowsky was accused by the state commissioner of taxation of having unlawfully made a false and fraudulent corporate income-tax return for the Portage Stores Company, of which he is president, at the city of Madison. As the evidence was taken at the hearing, it appeared that the return was signed at the home of the accused in Portage, Columbia county, Wisconsin, and was not sworn to before any notary at that time. The return was then mailed to a certified public accountant retained by the Portage Stores Company in Madison. Counsel for the accused then stipulated that the return was "duly filed" in the state income-tax office at Madison, Wisconsin. The return as filed appeared to have been notarized by a notary public for Dane county.

At this point the examination was adjourned pending a determination by the defendant judge on the question of venue. On January 13, 1949, he found that the venue was in Columbia county, that the superior court of Dane county had no jurisdiction over the accused, and ordered the complaint dismissed, the accused discharged, and his bond released.

The state petitioned the circuit court for Dane county for a writ of mandamus. On January 24, 1949, an alternative writ was issued. On March 3, 1949, an order was made overruling defendant's motion to quash the alternative writ and granting a peremptory writ commanding defendant to proceed with the preliminary examination. There are two separate questions to be determined here: (1) Is the proper venue in this case in Dane county? (2) Does a writ of mandamus lie to compel a court to exercise its jurisdiction?

(1) The venue for a criminal case is the county where the offense was committed. Sec. 356.01, Stats. The offense in this action was the filing of a false corporation income-tax return. The superior court held that the offense was committed in Columbia county where the accused made out the return. The state contends that the offense was committed in Dane county where the return was required to be filed. It is considered that the latter contention is the correct one. H we were to accept the former, a Wisconsin resident who made out his income tax in an out-of-state city would have committed the offense there. This would lead to taking from Wisconsin a rightful means of protection in maintaining the effectiveness a proper regulation. It would be contrary to the plain right, which every state has, to determine duties limited, of course, or directly related to state affairs which are peculiar to the state.

(2) A writ of mandamus is the proper remedy here. Stateex rel. T. L. Smith Co. v. Superior Court, 170 Wis. 385,175 N.W. 927, is clear authority for that proposition. In that case a writ of mandamus granted by the circuit court for Dane county to compel the superior court to change the venue of a certain case was affirmed. It was held that because an order denying a motion for change of venue was nonappealable under the statutes, mandamus was the proper remedy.

Under sec. 358.12(3), Stats., the state has the right to appeal "from any final order or judgment, adverse to the state, made or rendered before jeopardy has attached." However, this final order or judgment must be of a court of record because sec. 251.08 gives the supreme court appellate jurisdiction over circuit courts, county courts, or other courts of record.State v. Hunter, 235 Wis. 188, 292 N.W. 609. In State exrel. Maloney v. Proctor, 249 Wis. 377, 24 N.W.2d 698,25 N.W.2d 742, it was held that the superior court of Dane county is not a court of record when sitting as a justice of the peace. Therefore, a writ of error on behalf of the state could not be taken. The circuit court under State ex rel. T. L.Smith Co. v. Superior Court, supra, had power in the exercise of its supervisory jurisdiction to issue the writ of mandamus.

By the Court. — Order affirmed. Cause remanded for further proceedings according to law.