State ex rel. Kowaleski v. Dist. Court of Milwaukee Cnty.

• Decision Date: 03 May 1949
• Citation: 36 N.W.2d 419,254 Wis. 363
• Parties: STATE ex rel. KOWALESKI v. DISTRICT COURT OF MILWAUKEE COUNTY et al.
• Court: Wisconsin Supreme Court

254 Wis. 363

36 N.W.2d 419

STATE ex rel. KOWALESKI

v.DISTRICT COURT OF MILWAUKEE COUNTY et al.

Supreme Court of Wisconsin.

March 8, 1949.

Rehearing Denied May 3, 1949.

Appeal from an order of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Proceeding by the State, on relation of John Henry Kowaleski, against the District Court of Milwaukee County and others for a writ of prohibition to restrain the Honorable Harvey L. Neelen in his capacity as District Court Judge of Milwaukee County from further proceeding in certain so-called John Doe proceedings. From an order denying plaintiff's prayer for a permanent writ, plaintiff appeals.-[By Editorial Staff.]

Order affirmed.

HUGHES, J., dissenting.This is an appeal from an order, dated January 28, 1949, denying the petition of the plaintiff for a permanent writ of prohibition restraining respondent, the Honorable Harvey L. Neelen, in his capacity as district court judge of Milwaukee county, from further proceeding in certain so-called ‘John Doe’ proceedings under sec. 361.02, Stats.

John Henry Kowaleski, plaintiff-appellant, is chairman of the board of supervisors of the town of Lake, Milwaukee county. On January 8, 1949, plaintiff was arrested on a complaint charging him with the acceptance of a bribe in his official capacity as town chairman, whereupon he was taken before the district court of Milwaukee county and released on a recognizance in the sum of $1,000, for preliminary examination on said charge before said court on January 24, 1949. This case is known as file No. 99307.

On January 11, 1949, Joseph E. Tierney, deputy district attorney of Milwaukee county, filed a complaint against John Henry Kowaleski, and other persons unknown to affiant at that time, in the said district court alleging in substance as follows: That on January 8, 1949, a warrant was issued for the arrest of John Henry Kowaleski for accepting a bribe from one Ray Betker; that on information and belief the said John Henry Kowaleski had been guilty of other violations of sec. 346.06, particularly paragraph (1) thereof, which relates to corruptly accepting and receiving a bribe; that on information and belief there were diverse persons, residents of the town of Lake and other parts of Milwaukee county, who paid money to the said Kowaleski for the purpose of influencing him in the performance of certain official duties; that it was essential that the persons concerning whom affiant had information be subpoenaed to appear for the purpose of giving evidence to ascertain whether such offense or offenses had been committed; and the prayer of the complaint was that the court fix a time and place for the hearing of testimony of several witnesses so that the court could be advised as to whether or not further offenses had been committed by Kowaleski. Judge Neelen accepted the complaint and ordered that the hearing in this investigational proceeding (file No. 99377) be held January 11, 1949, at 7:30 p. m., in the court room of the district court or the chambers of the district court judge. Thereafter, subpoenas were issued to some ten persons, one being addressed to the town clerk of the town of Lake commanding that he bring with him forthwith the following articles:

‘The Town order book or check book, all invoices since January 1, 1948, all cancelled town orders or checks since January 1, 1948, the minute book, all of the original resolutions and ordinances adopted by the Town Board since January 1, 1948 and their jackets or containers, all records of advertising for bids either for public work or equipment, together with all original bids, proceedings on bids and reports on bids.’

On January 14, 1949, upon the affidavit of the plaintiff, an alternative writ of prohibition was entered out of the circuit court for Milwaukee county, which directed the defendant, Judge Neelen, to desist and refrain from any other proceedings in the proceeding and action specified in said affidavit and relation until January 17, 1949, at 10:00 a. m.

Upon the pleadings and on the evidence, the circuit court then denied the plaintiff's prayer for the permanent writ and it is from such order that plaintiff appeals.

Other material facts will be stated in the opinion.

Walter Schinz, Jr., of Milwaukee (Terence N. Hickey, of Milwaukee, of counsel), for appellant.

William J. McCauley, Dist. Atty., and Joseph E. Tierney, Deputy Dist. Atty., both of Milwaukee, for respondents.

MARTIN, Justice.

Pursuant to secs. 5 and 6 of ch. 218, Laws of 1899, the district court of Milwaukee county had jurisdiction to proceed with the investigation under sec. 361.02, Stats., which provides as follows:

‘Complaint and warrant; John Doe proceeding. (1) Upon complaint made to any such magistrate that a criminal offense has been committed, he shall examine, on oath, the complainant and any witness produced by him, and shall reduce the complaint to writing and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offense has been committed the magistrate shall issue a warrant reciting the substance of the accusation, and requiring the officer to whom it shall be directed forthwith to take the person accused and bring him before the said magistrate, or before some other magistrate of the county, to be dealt with according to law; and in the same warrant may require the officer to summon such witnesses as shall be therein named to appear and give evidence on the examination.’

The trial court found that there were two separate proceedings in district court, one of which was the criminal charge (entitled State of Wisconsin v. John Henry Kowaleski) for the offense of accepting a bribe, and bearing file No. 99307; and the second an independent investigational proceeding brought under sec. 361.02, and referred to as file No. 99377.

There was no evidence from which a different conclusion could be reached. The records of the court are conclusive here.

Sec. 361.02, which is known as the ‘John Doe’ statute, was first considered and construed by this court in State ex rel. Long and Another v. Keyes, 1889, 75 Wis. 288, 44 N.W. 13. It is stated, 75 Wis. at page 293, 44 N.W. at page 15:

‘Before seeking other light on the subject, the language employed in framing this section must first be consulted, and its ordinary meaning must govern its construction, unless doubtful or ambiguous. (1) Other witnesses than the complainant may be examined on oath. (2) Such witnesses must be produced by the complainant. He cannot ‘produce’ them in any other way than to suggest their names to the magistrate. If they come voluntarily with the complainant, he cannot be said to produce them in any other way than to make them known to the justice as witnesses who know something about the case. They are produced as parties produce their witnesses in court. They may come voluntarily, or on subpoena and on attachment, if necessary. When shall he produce them? The statute is silent as to the time, as it is as to the number of the witnesses. The exigency of other business before the justice might require an adjournment, after examining the complainant. This inquiry is about the power or authority of the justice, and not its practical execution. The complainant produces or suggests or names a great many witnesses at the time, or at another time, and at different times during the progress of the examination. They are witnesses, and therefore may be subpoenaed. The main purpose is to obtain the facts in relation to the offense from the complainant and other witnesses, and the justice has the power to have or bring such other witnesses before him to be examined as to their knowledge of the facts. Having this power, the manner or time of executing it, or the practice under it, is not material to this inquiry. These and many other subordinate matters are necessarily left to the discretion of the justice. He must proceed in some way until the facts of the offense are made known to him by witnesses under oath. He has to judge of these facts. He adjudicates upon them. ‘If it shall appear that any offense has been committed, the magistrate shall issue his warrant,’ etc. It must appear from the facts. He must pursue the examination until such facts make it appear. He has no power to issue a warrant until it does so appear. The facts disclosed must make a prima facie case of crime against some one. The section further provides: ‘And in the same warrant may require the officer to summon such witnesses as shall be therein named.’ How can the magistrate know what witnesses to name in the warrant to be summond ‘to appear and give evidence on the examination,’ unless he has obtained such knowledge by their previous examination? This duty is unlimited. He must name in the warrant all such witnesses as can give evidence on the examination, many or few, and he must have found out who such witnesses are from their previous examination before him.'

Referring to file No. 99377, the investigational proceeding under sec. 361.02, the court upon the complaint filed by the district attorney, which we have summarized in the statement of facts, can subpoena persons whom it is believed have knowledge of other offenses committed by the plaintiff, John Henry Kowaleski, in his capacity as town chairman of the town of Lake. When the investigation is concluded, if the court is satisfied that other offenses have been committed by the said Kowaleski, warrants can be issued for his arrest for the offense or offenses discovered. By constitution and by law, plaintiff Kowaleski will then be entitled to appear before the district court with counsel to participate in the preliminary hearing for those various offenses and the action of the district court must be limited solely to the determination of whether or not an offense has been committed and whether there is reasonable cause to believe that plaintiff Kowaleski is guilty thereof. At no time either at...