State ex rel. Cooper v. Brazee

• Decision Date: 11 May 1909
• Citation: 121 N.W. 247,139 Wis. 538
• Parties: STATE EX REL. COOPER ET AL. v. BRAZEE, MUNICIPAL JUDGE.
• Court: Wisconsin Supreme Court

139 Wis. 538

121 N.W. 247

STATE EX REL. COOPER ET AL.

v.BRAZEE, MUNICIPAL JUDGE.

Supreme Court of Wisconsin.

May 11, 1909.

Mandamus by the State, on the relation of John Cooper and another, against Alvin C Brazee, Municipal Judge. Motion to quash an alternative writ issued. Writ quashed.

Among other references upon the part of the relators were the following: Hamilton v. Milwaukee, 89 Wis. 358, 61 N. W. 1100;Ogden v. Madison, 111 Wis. 413, 87 N. W. 568, 55 L. R. A. 506;Crocker v. State, 60 Wis. 553, 19 N. W. 435;State ex rel. v. Clementson, 133 Wis. 458, 113 N. W. 667;Bookhout v. State, 66 Wis. 415, 28 N. W. 179;Plateville v. McKernan, 54 Wis. 487, 11 N. W. 798;Milwaukee v. Weiss, 93 Wis. 653, 68 N. W. 390; section 3294, St. 1898; Stoltman v. Lake, 124 Wis. 462, 102 N. W. 920;Chafin v. Waukesha, 62 Wis. 463, 22 N. W. 732.

Among other references upon the part of the respondent were the following: State ex rel. v. Rock County, 134 Wis. 301;State ex rel. v. Elliott, 108 Wis. 163, 84 N. W. 149;In re Mielke, 120 Wis. 501, 98 N. W. 245; section 3047, St. 1898; article 1, § 21, Const. Wis.; Stoppenbach v. Zohrlaut, 21 Wis. 385;Milwaukee v. Simons, 93 Wis. 576;State v. Allison, 47 Wis. 548, 2 N. W. 1141;Ammidon v. Smith, 14 U. S. 447, 4 L. Ed. 132;State ex rel. v. Nohl, 113 Wis. 15, 88 N. W. 1004;Boscobel v. Bugbee, 41 Wis. 59.Kronshage, McGovern, Goff, Fritz & Hannan, for relators.

John T. Kelly (Walter H. Bender, of counsel), for respondent.

TIMLIN, J.

John Cooper and Louis Gorton were on September 12, 1908, convicted in the district court of Milwaukee county of having violated an ordinance of the city of Milwaukee and sentenced to each pay a penalty of $25 and costs, or in default be committed to the house of correction of Milwaukee county until paid, not however, exceeding a term of 90 days. On September 21, 1908, they appealed against this conviction to the municipal court for Milwaukee county, giving an undertaking with sureties for their appearance at the next regular term of the last-mentioned court, and from time to time thereafter until discharged by law to prosecute the appeal and abide the sentence of the court thereon, and in the meantime keep the peace. March 3, 1909, the prosecuting attorney moved to dismiss this appeal, assigning the following reasons: (1) This court has no jurisdiction to hear, try, and determine said appeal. (2) There is no provision of law whereby said appeal can be taken to and prosecuted in said court. (3) Said appeal should have been taken to the circuit court for Milwaukee county. Accompanying the motion papers for the dismissal of the appeal was a copy of the ordinance under which the relators were convicted, which read as follows: “No person shall take, remove or carry away any stone, sand or earth from the beach or from the water within three hundred feet of high water mark, along or near the shore of Lake Michigan between the extreme northern limit and extreme southern limit of the city, under a penalty of not less than twenty-five dollars nor more than one hundred dollars.” Whereupon the municipal court “ordered and adjudged that the appeals of the above-named defendants and each of them from the district court of the county of Milwaukee to the municipal court for the city and county of Milwaukee be and hereby are dismissed for the following reasons, among others.” Here follow the grounds heretofore quoted in the moving papers. The ordinance in question was before this court in C. Beck Co. v. City of Milwaukee, 120 N. W. 293, and, limited by construction as there stated, was held valid. Upon application of relators, this alternative writ of mandamus was issued to the judge of the municipal court under the power conferred upon this court by section 3, art. 7, Const. Wis. The respondent moves to quash this writ for the reasons: (1) That the Supreme Court is without jurisdiction to issue the peremptory writ prayed for in the petition. (2) That neither the petition nor the alternative writ states facts showing that any such exigency exists which either calls for or justifies the exercise by the Supreme Court of its constitutional power of superintending control. (3) That neither the petition nor the alternative writ states facts showing that the relators are, or that either of them is, entitled to the writ of mandamus as prayed.

If by the objection to the jurisdiction of this court it is meant to confess the jurisdictional fact of refusal on the part of the municipal court to exercise its rightful jurisdiction and injury to the relators, it is hardly worth while to devote much time to this part of the motion. The constitutional provision in question, as construed by this court from the earliest times, confers quite an unlimited jurisdiction over the subject-matter therein described. Attorney Gen. v. Blossom, 1 Wis. 317;Attorney Gen. v. Railroad Companies, 35 Wis. 425;State v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33;State v. Helms (Wis.) 118 N. W. 158.

But on the second ground of the motion to quash, as above quoted, it appears that the relators have a remedy by writ of error to review the final order of the municipal court dismissing the appeals of the relators, notwithstanding such appeals may be considered appeals in civil actions. “The judgment of the municipal court in all cases tried before it may be examined and reviewed in the same manner as the judgments of the circuit court be.” Section 2499, St. 1898 (Chapter 7, p. 15, Laws 1895). This is a very broad grant of power, and, taken in connection with the constitutional provision forbidding the withholding of writs of error by the Legislature, is very significant. In Cowles v. Neillsville (Wis.) 119 N. W. 91, the plaintiff in error was “convicted of violating a city ordinance.” He appealed to the circuit court, and the circuit court dismissed his appeal, and this court reversed on writ of error the order dismissing his appeal. The case also states the familiar principle that the right of appeal from inferior tribunals is favored in the law, and hence statutes conferring that right liberally construed. So this court has entertained a number of cases brought up from the municipal court of Milwaukee county on writ of error, among them prosecutions for violation of city ordinance, as in Milwaukee v. Gross, 21 Wis. 241, 91 Am. Dec. 472, and Clason v. Milwaukee, 30 Wis. 316; also, criminal convictions, as in Raynor v. State, 62 Wis. 289, 22 N. W. 430, and Wendel v. State, 62 Wis. 300, 22 N. W. 435. The relators having an efficient remedy by writ of error, we ought not exercise the extraordinary jurisdiction of this court. The majority of this court believe this decision should end here and express no opinion upon what follows. A minority of this court, including Justices KERWIN and BARNES and the writer, are of the opinion that what follows is proper to be at least considered and commented on by this court.

In support of the third ground above quoted for moving to quash the writ, the moving parties present that the municipal court has no jurisdiction of appeals from the district court in judgments imposing a penalty and alternative imprisonment for the violation of city ordinances. This question is very fully argued in the briefs. It is also made the basis of denying the first proposition treated in this opinion because it is in effect conceded, as it must be, that in criminal...