Chittenden v. State , 41 Wis. 285 ( 1876 )

Cole, J.

The practice of issuing a common-law writ of certiorari for the purpose of removing a cause from the circuit court to this court before trial and judgment, was adopted in the cases of Hauser and another v. The State of Wisconsin, 33 Wis., 678, and Martin v. The State, 35 id., 294. It is proper, however, to state that in neither of those cases was the question as to the regularity or correctness of the practice discussed or questioned by counsel, and the point was passed sub silentio by the court. But the learned counsel for the state now claims that the writ was improviolently awarded in those cases, as well as in the one at bar. He contends that the office which it was attempted to make the writ serve, is not within its scope and design as a common-law process, and that the writ cannot be used as a means to bring’ before this court for review any order or ruling of the circuit court made in a cause pending before it, before final judgment. After judgment, he contends that the proper remedy for correcting any error which may have occurred in the proceedings in the circuit court, is by a writ of error or appeal.

To our minds it is a serious question whether this position of counsel is not correct and in strict accord with the principles and rules of practice which govern proceedings in civil and criminal actions. It is obvious that the writ is resorted to in the present case as a mode of appeal from the decision of the circuit court refusing to dismiss all proceedings in the cause. And the question is, whether such a ruling can be brought before this court for review by a common-law certio-rcvri. The circuit court is a court of general jurisdiction in civil and criminal matters, under the constitution; and it was proceeding in the action according to the course of the common law. If the court was proceeding in the cause without jurisdiction, the appropriate writ to be applied for from this court would seem to be the writ of prohibition, and not a common-law oertiorcori. It seems to us, if the writ is a proper process for correcting the alleged error of the circuit court in refusing to dismiss the proceeding, it might be resorted to at any stage of the cause to bring up for review any erroneous decision which that court might make. The great inconvenience which would result if such a practice is sanctioned, is too obvious to need comment. True, in the Hauser case the writ was sued out to review a decision of the municipal court of the city of Milwaukee refusing to quash an information for publishing a libel. In the Martin case the question was, whether the circuit court, under the circumstances, should have changed the place of trial. If the question of practice had been considered and settled by the court in those cases, we should feel bound by the adjudications. But it was not; and therefore, under the circumstances, the question of practice will be deemed an open one in this court. On account of the absence of the chief justice, no attempt will be made to settle the practice in this case. But we thought it advisable to make the suggestions we have, in order that the profession might not be misled by the above decisions, or infer that the practice was already definitely determined and settled in such cases.

With respect to the motion before us, if we assume that the writ was a proper process to bring up the record of the proceedings of the circuit court for review, as has been done, still we are of the opinion that the writ must be quashed.

In the Hauser case, Mr. Justice Lyon states the doctrine of this court as to what questions are raised by the writ, as fallows: “It is well settled by numerous adjudications of this coui’t, that in this state, upon certiorari to an inferior court, the court out of which the writ issues will only inquire into errors or defects which go to the jurisdiction of the court below, and for all other errors or irregularities the party aggrieved must resort to his remedy by appeal or writ of error.” p. 680. It would seem evident that no broader scope can be given to the writ when it removes the proceedings of a court of general jurisdiction. It is only jurisdictional defects or errors which can be then inquired into.

The learned counsel for the defendants claims that the circuit court should have dimissed the proceedings because the evidence taken on the preliminary examination shows that no offense was committed in Dane county, and therefore neither the municipal nor circuit coxirt had jurisdiction to try the cause. The information, however, very distinctly charges that the libelous article was composed, printed and pxiblished in Dane county, within .the jurisdiction of these courts. Now, ■whether or not the offense was committed as charged, is clearly a question of fact to be determined by a verdict of a jury upon evidence. If the defendants did not publish the libel in Dane county, this will be a good defense to the prosecution, but it does not affect the jurisdiction of the court. It seems to us unnecessary to spend time in considering this point. For it is obvious, if no offense was committed within the jurisdiction of the court, the jury will so find upon the proof, and acquit the defendants. It is suggested that the court can look into the evidence taken on the preliminary examination in order to ascertain whether the libel was published in Dane county, so as to determine the question of jurisdiction. But we know of no authority in law which will justify such a course. If the information charges with proper averments an indictable offense committed in Dane county — as it manifestly does,— this states an offense which the court had jurisdiction to try and determine.

But it is further insisted that the circuit court never acquired jurisdiction of the cause on the change of venue from the municipal court. The change was demanded on account of the prejudice of the judge of the municipal court, and it is insisted that it should have been sent for trial to another county. The argument in support of this position is this: The act establishing the municipal court (eh. 107, Laws of 1873) provides that the laws of the state relating to a change of venue in criminal eases and examinations shall not apply to the municipal court, and gives that court exclusive jurisdiction of all criminal offenses within the city of Madison. Section 4. This act was amended by chapter 22, Laws of 1874, and chapter 136, Laws of 1875. In the latter act it is among other things provided, that all “ laws conferring powers of jurisdiction on or regulating proceedings in circuit courts or the judges thereof, in criminal proceedings, are hereby extended to and over the municipal court.” This provision, it is claimed, makes only the laws relating to a change of venue in criminal cases in circuit courts applicable to tbe municipal court; and it is said, bad tbe application for a change been made to tbe circuit court on account of tbe prejudice of tbe judge, tbe cause must have been sent to another county for trial. Tbe argument above stated is fully answered by the decisions of this court in State ex rel. Stark v. McArthur, 13 Wis., 384, and Geiser Threshing Machine Co. v. Carter, 31 id., 157. It is contended that tbe reasoning of tbe McArthur case is not in point, because, it is said, all laws of tbe state relating to courts of record applied to tbe municipal court of Milwaukee, while only tbe laws relating to circuit courts apply to tbe municipal court of Madison. It will be seen, however, that Mr. Justice Paine places tbe decision in tbe Mc-Arthur case upon no such ground. Tbe following extract from tbe opinion in tbe Geiser case will show our understanding of tbe decision in tbe McArthur case. “ One of tbe questions .presented for decision in tbe case of McArthur vjas, whether tbe municipal court of Milwaukee, on an application in a crwni/nal case to change tbe place of trial on account of tbe prejudice of tbe judge, bad authority to send tbe cause to tbe circuit court for Milwaukee county, or whether be was bound to send it to another county. Tbe provisions of law upon tbe subject of tbe chapge of venue in criminal cases on account of tbe prejudice of tbe judge of tbe court where the indictment was found, declared that tbe change should be made ii/a the manner provided hy law for a change of venue in cvvil actions.’ Sec. 2, eh. 178, R. S. These provisions were of course applicable to the municipal court of Milwaukee in that class of cases, as well as to other courts having criminal jurisdiction. In looking, then, to see what tbe provisions were in regard to tbe change of venue in civil actions, we foupd enactments in different chapters which had to be construed together and harmonized as far as possible. Sec. 60, cb. 117, R. S., provided that in all cases where a change of venue is allowed for tbe reasons of interest or prejudice on the part of the cou/nty judge, the canse should not he remitted to another county, hut should be removed to the circuit court. This provision was held to be a part of the statute law relating to the change of venue in civil actions, and therefore the result of the various enactments was, £ that where the grounds for such change do not require another county, the change may be to another court in the same county having lawful authority to try the case.’ And that principle was made applicable to a change of venue in a criminal case on account of the prejudice of the judge of the municipal court, because, as the statutes then stood, this was the £ manner provided by law for a change of venue in civil actions.’ But the question before the court and really decided was, that when an application was made in a criminal case for a change of venue on account of the prejudice of the judge of the municipal court of Milwaukee, all the provisions concerning a change of venue in civil actions were to be regarded, as well those relating to a change from the county courts as those which refer 'to a change from the circuit courts, and that the result of all these various enactments was to authorize in such a case a change to the circuit court of the same county.”

These remarks, it seems to us, afford a complete answer to the position of counsel that a distinction exists between the McArthur case and the one at bar so as to render the reasoning in the former inapplicable to the latter. For, in determining the power of the municipal court of Madison, under sec. 2, ch. 178, R. S., to change the venue in criminal cases, all the provisions concerning a change of venue in civil actions must be considered; as well those relating to a change from the county courts, as those which refer to a change from the circuit court. The result of this view is, that all the various enactments which authorize a change on account of the prejudice of the judge, apply to the municipal court of Madison. And § 85, ch. 117, Tay. Stats., provides that whenever a change of venue is allowed in any action pending in a county court on account of prejudice on the part of tlie judge, the action shall he removed to the circuit court for the same county, unless it shall be made to appear that one of the objections in the section mentioned exists in respect to the judge of the circuit court. This disposes of the objection that the municipal court had no power to change the venue to the circuit court of Dane county.

We therefore think no case is shown for granting the writ of certiorari, even if it would lie to bring up for review the decision of the circuit court denying the motion to dismiss the proceedings. The writ having been returned, the motion to quash the same is proper, and must be granted. The Hauser case, supra.

By the Cou/rt.— The motion to quash the writ is granted, and the cause will be remanded for further proceedings according to law.