State ex rel. Fieldhack v. Gregorski

• Decision Date: 03 April 1956
• Citation: 76 N.W.2d 382,272 Wis. 570
• Parties: STATE ex rel. William F. FIELDHACK, Appellant, v. Frank E. GREGORSKI, Judge of District Court Branch 2, Milwaukee County, Respondent.
• Court: Wisconsin Supreme Court

Page 382

76 N.W.2d 382

272 Wis. 570

STATE ex rel. William F. FIELDHACK, Appellant, v. Frank E. GREGORSKI, Judge of District Court Branch 2 Milwaukee County, Respondent.

Supreme Court of Wisconsin.

April 3, 1956.

George D. Prentice, Milwaukee, Richard B. Surges, Milwaukee, of counsel, for appellant.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., William J. McCauley, Dist. Atty., of Milwaukee County, Joseph E. Tierney, Deputy Dist. Atty., Milwaukee, for respondent.

BROADFOOT, Justice.

The contentions of the relator may be summarized as follows: The trial court has no jurisdiction to proceed with a criminal trial where the accused is being prosecuted under an unconstitutional law; that a writ of prohibition is a proper legal device to prevent a trial court from exceeding its jurisdiction in entertaining a prosecution under an unconstitutional law where the only other available remedy is for the accused to submit to public trial upon the merits where such may be wholly futile; that this court in State v. Stehlek, 262 Wis. 642, 56 N.W.2d 514, directed trial courts not to pass upon the constitutionality of statutes and this court must have intended to accord to an accused some effective and equitable remedy in place of the ordinary right of the accused to argue and be heard on the law in the trial court; that an accused cannot be deemed to have had a trial within the meaning of that term under sec. 7, art. I, Wis.Const., unless he can test the constitutionality of the law under which he has been arrested in the trial court, or have some substitute for a determination on the law, such as a writ of prohibition; and finally, that sec. 147.14, Stats., and related sections in said chapter are unconstitutional for various alleged reasons.

By statute, Laws 1899, c. 218, § 5 as amended, Laws 1921, c. 586, the district court of Milwaukee county is given exclusive jurisdiction to try all charges for offenses arising within said county of Milwaukee, the punishment whereof does not not exceeding $1,000, or both. If convicted of said offense the relator could be punished of said offense the relator could be punished by a fine ranging from $100 to $500, or imprisonment for not less than sixty days nor more than one year, or both. Accordingly, the district court has jurisdiction to try the relator for the offense charged.

The statutes further provide that one convicted in the district court may appeal to the municipal court for Milwaukee county, from which an appeal can be had to this court. We have decided in many cases that a writ of prohibition will not be issued where there is an adequate remedy by appeal or otherwise. This rule is applicable in criminal as well as civil cases. In re Weaver, 162 Wis. 499, 156 N.W. 459; State ex rel. Kowaleski v. District Court, 254 Wis. 363, 36 N.W.2d 419. In the Kowaleski Case, supra, 254 Wis. at page 372, 36 N.W.2d at page 424, this court quoted from 42 Am.Jur., Prohibition, p. 141, sec. 6, as follows:

"Prohibition, like all other prerogative writs, is to be used with great caution and forbearance, for the furtherance of justice and to secure order and regularity in judicial proceedings, and should be issued only in cases of extreme necessity. The writ will not issue to prohibit a court from acting in the proper exercise of its powers and within its jurisdiction. Nor will a court issue prohibition in a case where it is not justified, for the sole purpose of establishing a principle to govern other cases. Nor will it ordinarily be issued in a doubtful case. Indeed, it has been held that prohibition will not lie if the inferior court has prima facie...