State ex rel. Tewalt v. Pollard

• Citation: 112 Wis. 232,87 N.W. 1107
• Parties: STATE EX REL. TEWALT v. POLLARD, JUSTICE OF THE PEACE.
• Decision Date: 29 November 1901
• Court: United States State Supreme Court of Wisconsin

112 Wis. 232

87 N.W. 1107

STATE EX REL. TEWALT

v.POLLARD, JUSTICE OF THE PEACE.

Supreme Court of Wisconsin.

Nov. 29, 1901.

Application by the state on relation of William Tewalt, against S. R. Pollard, justice of the peace, for a writ of prohibition. Writ quashed.

This is an application for a writ of prohibition to be issued out of this court, preventing the respondent, as justice of the peace, from the commission of further acts in a certain prosecution pending before him, on the ground that such acts are in excess of his jurisdiction. The verified relation showed that on October 9, 1901, one Banks made complaint in writing to the respondent, who was a justice of the peace of the city of Viroqua, charging that Grant Pierce and Jack Mills had violated sections 1565a-1565c of the Revised Statutes of Wisconsin, relating to the sale of intoxicating liquors; that on the filing of the said complaint, and before issuing any warrant in said case, Justice Pollard issued a subpœna for the attendance of 14 witnesses, including the relator, and that said subpœna required the relator, as secretary of the Viroqua Club, to produce the secretary's books and records before the justice; that the relator appeared before the justice, but refused to produce the books and records on the ground that their production might tend to criminate him; that the justice thereupon declared that the production of said books would not tend to criminate him, and required the relator to show cause why he should not be punished for contempt. Upon this relation an application was made to this court on the 16th of October, 1901, for the issuance of an alternative writ of prohibition; and said writ was on said day duly issued, and made returnable on the 5th day of November, 1901, at which time the respondent appealed, and moved that the alternative writ be quashed because (1) the same was improvidently issued, and (2) because it appears upon the face of the relation and of the writ that the respondent has not exceeded his jurisdiction.W. F. Wolfe and C. W. Graves, for relator.

J. Henry Bennett, Dist. Atty., and E. R. Hicks, Atty. Gen., for respondent.

WINSLOW, J. (after stating the facts).

This is an application for the exercise by this court of the power of superintending control over a justice of the peace. Since the case of State v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33, there seems to be little necessity of discussing the nature and extent of the jurisdiction of this court by the way of a superintending control over inferior courts. It is a high power, which enables this court, by the use of all necessary and proper writs, including the writ of prohibition,to control the course of litigation in inferior courts when such a court either refuses to act within its jurisdiction, or acts beyond its jurisdiction, to the serious prejudice of the citizen. But this court will not exercise its jurisdiction when there is another adequate remedy, by appeal or otherwise, nor unless the exigency is of such an extreme nature as obviously to justify and demand the interposition of the extraordinary superintending power of the court of last resort of the state. State v. O'Neill, 104 Wis. 227, 80 N. W. 447;State v. Ludwig, 106 Wis. 226, 82 N. W. 158. And so, when the application for the alternative writ in this matter was made, counsel was asked from the bench whether there was not an adequate remedy open to the relator by application to the circuit court. To this counsel replied that under section 3457, St. 1898, the writ of prohibition can only be issued by this court, and hence that he was compelled to come to this court for relief. Out of deference to the provisions of this section, which has stood upon the statute book of the state since 1849, (section 9, c. 125, Rev. St. 1849), we concluded to issue the alternative writ, and suggested to counsel that when the case came up for argument we should desire to hear argument upon the question of the constitutionality of section 3457, so far as it attempted to strip the circuit courts of the power to issue writs...