State ex rel. Arthur v. Proctor
| Decision Date | 12 July 1949 |
| Citation | 255 Wis. 355,38 N.W.2d 505 |
| Parties | STATE ex rel. ARTHUR, Dist. Atty. v. PROCTOR, Judge. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Dane County; Kenneth S. White, Circuit Judge.
Affirmed.
Petition for a writ of mandamus filed January 22, 1949, by Robert W. Arthur, district attorney for 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 v. 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 v. 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.
Rubin & Ruppa, Milwaukee, Vaughn S. Conway, Baraboo (William B. Rubin, Milwaukee, of counsel), for appellee.
Thomas E. Fairchild, Atty. Gen., William A. Platz, Asst. Atty. Gen., Robert W. Arthur, Dist. Atty., Madison, for respondent.
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 in the county where the offense was committed. 356.01, Stat. 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...
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