State ex rel. McGovern v. Williams

Citation116 N.W. 225,136 Wis. 1
PartiesSTATE EX REL. MCGOVERN v. WILLIAMS, CIRCUIT JUDGE.
Decision Date08 May 1908
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Mandamus by the state, on the relation of Francis E. McGovern, against Orren T. Williams, circuit judge, to compel respondent to proceed with a criminal case. Writ issued.

By the petition and alternative writ of mandamus it is made to appear that on April 1, 1904, an indictment was returned by a grand jury against one Biersach charging him with crime. To that indictment, when called up in the circuit court for Milwaukee county, three pleas in abatement were interposed. The second and third pleas have been overruled, and are not material of statement. The first pleas set forth that the grand jury was illegally constituted, in that one John George Davies served thereon, who was not selected by the jury commissioners, and whose name was not placed upon the general jury list and was not drawn from the box as one of the 17 men to constitute the grand jury in question, whereby he was incompetent to serve. The court took testimony with reference to the identity of the person who had been selected by the jury commissioners and designated by the name George J. Davies, his name having also been drawn from the box as one of the grand jury, and reached the conclusion that the John George Davies who served upon the grand jury was not the person so selected and drawn by the jury commissioners. As a result of such conclusion he ordered that the indictment be abated and quashed, and refused to proceed further with the trial of the charge therein made. He, however, did not formally discharge the prisoner, but entered a stay of proceedings to enable an application to this court for such relief as might be deemed proper. The evidence on which the circuit court reached its determination is set forth in the petition, and all other facts material to the action of this court are conceded by the respondent to be so set forth, so that a final determination might be reached upon the motion to dismiss the writ and petition which was interposed by the respondent.Frank L. Gilbert, Atty. Gen., Francis E. McGovern, Dist. Atty., and Franz C. Eschweiler, Asst. Dist. Atty., for appellant.

Lyman G. Wheeler (Walter Schintz and Carl Runge, of counsel), for appellee.

DODGE, J. (after stating the facts as above).

The present application is confessedly addressed to the power vested in this court by the Constitution of superintending control over inferior courts. The meaning of that grant of power was very fully expounded in State ex rel. Fourth National Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33, and the following conclusion reached and stated at page 616 of 103 Wis., and page 1087 of 79 N. W. (51 L. R. A. 33): “It is very apparent that, when the makers of the Constitution used the words ‘superintending control over all inferior courts,’ they definitely referred to that well-known superintending jurisdiction of the court of King's Bench. In England it was a branch of the King's power lodged with the King's court; in this country it is a branch of the sovereign power of the people, committed by them as a sacred charge to this court, not to be exercised upon light occasion, or when other and ordinary remedies are sufficient, but to be wisely used for the benefit of any citizen when an inferior court either refuses to act within its jurisdiction, or acts beyond its jurisdiction to the serious prejudice of the citizen.” Since that case was decided the nature of this power has been the subject of very much explanation, but hardly with the result of greater clearness or exhaustiveness than in the words just quoted. Some of the more important of the later cases are the following: State ex rel. Mitchell v. Johnson, 105 Wis. 90, 80 N. W. 1104;State ex rel. Fourth National Bank v. Johnson, 105 Wis. 164, 83 N. W. 320;State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158;State ex rel. Taylor v. Circuit Judge, 108 Wis. 163, 84 N. W. 149;State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587;In re Gates, 117 Wis. 445, 94 N. W. 292;State ex rel. Coffey v. Chittenden, 127 Wis. 468, 107 N. W. 500;State ex rel. v. Circuit Court (Wis.) 113 N. W. 722;State ex rel. v. Circuit Court (Wis.) 114 N. W. 455.

It will be observed that one limitation upon the exercise of this power, stated in the first Johnson Case and many times reiterated, is the absence of any other adequate and sufficient remedy. 2 Spelling, Extr. Relief, § 1392; High, Extr. Rem. § 177; State ex rel. Meggett v. O'Neill, 104 Wis. 227, 80 N. W. 447; In re Gates, supra. We, therefore, elsewhere in this opinion, without express reiteration, must be understood as intending that qualification in all cases where it may be stated the power exists. It is not material to the present case, for both parties concede and proceed on the assumption that if the acts of the circuit court here complained of are otherwise within reach of our superintending jurisdiction, exercisable by the writ of mandamus, other adequate remedy is wanting. State v. Kemp, 17 Wis. 669;State v. Grottkau, 73 Wis. 589, 41 N. W. 80, 1063, 9 Am. St. Rep. 816; Van Rueden v. State, 96 Wis. 671, 676, 71 N. W. 1048;U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609, 36 L. Ed. 445.

The present application is claimed to present a case where the circuit court refuses to act within its jurisdiction, for that, by reason of some preliminary consideration, it has declared that it has no right to proceed with the consideration of the charge against the accused. If that contention is sustained, it will neither be necessary nor proper in the present case to attempt a disquisition upon or further definition of the jurisdiction of this court in other directions. That the act of the circuit court is a refusal to exercise its jurisdiction and perform its duty to consider the criminal charge against the accused seems too plain for discussion. He has declared that purpose most unambiguously, and, but for the stay entered to enable the application to this court, the accused would have been discharged; immune from further prosecution, it is said, because a new prosecution for his alleged offense is barred by the statute of limitations. Thus, prima facie, an obvious case is presented to which either a writ of mandamus or the old time writ of procedendo ad judicium would be appropriate to command the circuit court to perform its duty to consider and judicially pass judgment upon the controversy instituted by this indictment. To this prima facie case it is responded that we cannot ascertain whether it is the circuit court's duty to proceed with the case without reviewing the obviously judicial determination made below that the indictment is void, clearly within the court's jurisdiction to resolve either way; a determination reached upon so clearly judicial acts as the weighing evidence and reaching conclusions upon disputed questions of fact, as also deciding uncertain questions of law as to the effect on the validity of the grand jury's action of the presence and participation of an unqualified person as a member of that grand jury. But this is no insuperable obstacle. This court is not universally restrained from reviewing acts done within the jurisdiction and judicial power of the inferior court in the exercise of superintending control. State ex rel. Bank v. Johnson, 103 Wis. 623, 79 N. W. 1081, 51 L. R. A. 33;State ex rel. v. Ludwig, 106 Wis. 234, 82 N. W. 158;State ex rel. Wintchell v. Circuit Court, 116 Wis. 253, 93 N. W. 16. True, it is frequently asserted that the writ of mandamus issued under the power of superintending control cannot be made to serve as a writ of eror, and that, when the lower court does take up any question for consideration and in its best judgment decides, it exercises jurisdiction and performs its duty, and there is nothing left but a supposed judicial error for review. High, Extr. Rem. (3d Ed.) § 188; State ex rel. Bank v. Johnson, 103 Wis. 623, 79 N. W. 1081, 51 L. R. A. 33;State ex rel. v. Burnell, 104 Wis. 246, 251, 80 N. W. 460. What limitations upon that rule appear in practical application of superintending control need not here be discussed, with one exception, which seems specially relevant to the situation before us. The courts are agreed, with but little failure of unanimity, that though the resolution of either a jurisdictional question or of a preliminary one, which precedes the consideration of the main controversy proposed to the court, may be judicial in character, none the less the court refuses to perform its duty to that controversy when it resolves the preliminary question adversely and refuses further action, and the superintending court is not precluded from considering whether or not that duty exists. There could not well be argument against the power to direct the lower court to proceed to consider a suit when its refusal to do so was arbitrary or based on no stated reasons, but the result to the party is the same when the court states such reasons; he is equally denied the judicial consideration and determination upon his controversy which the trial court owes him as a duty. It is generally true of all official action, by courts or other officers, that they are obliged, before proceeding to the performance of that official duty, to decide whether the condition exists which calls it into activity. A court must always inquire whether the law either gives it the jurisdiction or imposes upon it the duty to entertain a given controversy, and must inquire into existence of facts, either of notice to one of the parties or of some other preliminary condition, upon which the law imposes on him the power and the duty. In so deciding, he of course acts judicially. Where that judicial action can be corrected by ordinary appellate procedure, there may be no need for the exertion of the more extraordinary superintending control; but where it cannot, the...

To continue reading

Request your trial
23 cases
  • State ex rel. Umbreit v. Helms
    • United States
    • Wisconsin Supreme Court
    • 10 Noviembre 1908
    ...as well to criminal as to civil cases. State ex rel. Bank v. Johnson, 103 Wis. 614, 79 N. W. 1081, 51 L. R. A. 33;State ex rel. McGovern v. Williams (Wis.) 116 N. W. 225;State ex rel. Harris v. Laughlin, 75 Mo. 358;Benners v. State, 124 Ala. 97, 26 South. 942; 1 Bishop's Crim. Proc. par. 14......
  • Mengel v. Justices of Superior Court
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 23 Febrero 1943
    ...Mo. 220, 48 S.W.2d 857;State v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009;State v. Graves, 66 Neb. 17, 92 N.W. 144;State v. Williams, 136 Wis. 1, 116 N.W. 225, 20 L.R.A.,N.S., 941; State v. Circuit Court of St. Croix County, 187 Wis. 1, 203 N.W. 923, 48 A.L.R. 894;State v. Paul, 5 Wash.2d 90,......
  • Mengel v. Justices of Superior Court
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 23 Febrero 1943
    ... ... does the State labor relations law. G. L. (Ter. Ed.) c. 150A, ... Section 2, inserted by ... of West Virginia, 220 ... U.S. 539. Ex parte Williams, 277 U.S. 267. Ex parte Collins, ... 277 U.S. 565. Ex parte Northern ... ...
  • State ex rel. Heffron v. District Court for County of Stark in Tenth Judicial District of State
    • United States
    • North Dakota Supreme Court
    • 13 Septiembre 1913
    ... ... Sutton v ... Dist. Ct. 27 Mont. 128, 69 P. 988; State ex rel ... Fourth Nat. Bank v. Johnson, 51 L.R.A. 33, note; State ... ex rel. McGovern v. Williams, 20 L.R.A.(N.S.) 941, note ...          The ... contempt charged in this case is based upon facts declared by ... statute to ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT