State ex rel. Hurley v. Schmidley, 167

• Decision Date: 06 November 1970
• Docket Number: No. 167,167
• Citation: 180 N.W.2d 605,48 Wis.2d 659
• Parties: STATE ex rel. Robert HURLEY, Respondent, v. Harold V. SCHMIDLEY, Rock Co. Clerk of Courts, Appellant.
• Court: Wisconsin Supreme Court

Page 605

180 N.W.2d 605

48 Wis.2d 659

STATE ex rel. Robert HURLEY, Respondent, v. Harold V. SCHMIDLEY, Rock Co. Clerk of Courts, Appellant.

No. 167.

Supreme Court of Wisconsin.

Nov. 6, 1970.

This is an appeal from an order of the circuit court for Rock county denying defendant-appellant's motion to quash an alternative writ of mandamus. After testifying under subpoena in a criminal case, the respondent, police officer in the city of Beloit, proceeded to the office of the appellant, clerk of courts for Rock county. Respondent requested his name be certified by appellant for the payment of witness fees. Appellant, by his agent, it is claimed '* * * refused to allow petitioner (respondent) to so certify to attendance and mileage, and further, advised petitioner that he would not receive a witness fee or mileage payment for attendance in court * * * due to some departmental rule prohibiting witness fees and mileage payment for all police officers.'

Respondent, through the district attorney of Rock county, obtained an alternative writ of mandamus from the circuit court to compel the appellant to certify a witness fee or show cause to the contrary on June 13, 1969. On June 12, 1969, appellant, through the corporation counsel of Rock county, moved the circuit court for an order quashing the alternative writ of mandamus on the ground that no reason in law is stated in the facts recited that would oblige the clerk to issue such certificate. On June 13, 1969, arguments were heard on the motion to quash. On October 16, 1969, the circuit court entered an order denying the motion to quash, and ordering appellant to make a return or answer to the alternative writ of mandamus within twenty days. It is the order, dated October 16, 1969, from which this appeal is taken.

Campbell, Brennan, Steil & Ryan, George K. Steil and James E. Welker, Janesville, for appellant.

Robert J. Ruth, Dist. Atty., James M. Bablitch, Asst. Dist. Atty., for Rock County, Janesville, for respondent.

ROBERT W. HANSEN, Justice.

Here the court had issued an alternative writ of mandamus directed to the clerk of courts to either take the necessary steps to enable the petitioner police officer to be paid a witness fee, or, in the alternative, to show cause to the contrary. The trial court held the motion to quash such writ raised only a technical objection to the adequacy of the petition on its face. He did not rule on whether the petitioner was in fact entitled to a witness fee. The sole issue decided by the trial court was whether the remedy of mandamus was proper, and that is the sole issue with which this opinion deals.

Mandamus is a civil action, ¹ a summary writ, ² the petition constituting the complaint, ³ a motion to quash is equivalent to a demurrer to the complaint, ⁴ admitting the allegations of fact contained in the complaint. ⁵ Mandamus is the proper remedy to compel public officers to perform their statutory duties, ⁶ not to be issued unless such duty is clear, ⁷ to be reversed on appeal only for abuse of discretion. ⁸

Under the applicable statutes, ⁹ did the clerk of courts have a clear legal duty to certify the court attendance and mileage expenses of the applicant for witness fees? Appellant seeks to have the petition held defective on its face because it does not allege that petitioner presented to the clerk any affidavit of attendance or mileage. The trial court found that the clerk customarily and routinely furnishes to applicants a form for certifying attendance and mileage. Additionally, the court took judicial notice that clerks of court in Wisconsin uniformly use a perforated form in a book of numbered pages, the upper half being an affidavit to be signed by the witness, and subscribed and sworn to before the clerk, the lower half being the clerk's certificate, both halves bearing the same number. The court noted that such certificate book, with affidavit and certificate page to be numbered in sequence, was expressly provided for by statute, ¹⁰ and that providing such attendance form affidavits was accepted as a routine duty by clerks of court in this state. The trial court held it to be 'inconceivable that today's statutes intend to compel a witness to draft his own affidavit or hire an attorney to draft it, or buy a form, and pay a notary in order to collect a witness fee.' We agree with the trial court that the statutes, as well as custom and common sense, require the clerk to furnish the form affidavit for signing, and entitled the petitioner to expect that the service, routinely furnished others, would be available to him. Even if an area of discretion remains with the clerk, its exercise cannot be arbitrary, ¹¹ for to avoid a clear duty by arbitrary conduct constitutes an abuse of discretion.

The trial court held only that the petitioner was not required to prepare and present his own affidavit since the clerk had a clear duty to furnish a form affidavit from the numbered book. The trial court specifically did not reach nor rule on whether the petitioner was entitled a witness fee, finding that to be the exact issue to be reached and resolved after the hearing on the alternative writ. In fact, the appellant was granted twenty days (subsequently extended) to answer over or make return as to such issue. Nonetheless, appellant urges this court to reach out for and rule on questions related to the entitlement of police officers or police pension funds ¹² even though such questions were not briefed, argued nor ruled upon at the trial court level. The...