State ex rel. Umbreit v. Helms

• Decision Date: 10 November 1908
• Citation: 136 Wis. 432,118 N.W. 158
• Parties: STATE EX REL. UMBREIT v. HELMS, CIRCUIT JUDGE.
• Court: Wisconsin Supreme Court

136 Wis. 432

118 N.W. 158

STATE EX REL. UMBREIT

v.HELMS, CIRCUIT JUDGE.

Supreme Court of Wisconsin.

Oct. 20, 1908.

Concurring Opinions, Oct. 20, Nov. 5, and Nov. 10, 1908.

Mandamus by the state, on the relation of Augustus C. Umbreit, against Eugene W. Helms, circuit judge, to compel respondent to set aside an order dismissing a criminal complaint, and to direct the court to reinstate the action and proceed with trial thereof. Denied.

Application on the part of the state, through the relator, was made to this court, praying that it exercise its power of superintending control over inferior courts by directing Hon. E. W. Helms, respondent herein and judge presiding of the circuit court for St. Croix county, to set aside an order made by him quashing and dismissing a criminal complaint against one John Till in a criminal action pending in the circuit court for said county against said Till, and to direct said court to reinstate said action, and proceed with the trial thereof. This proceeding was commenced upon petition by the relator as attorney for the Wisconsin Board of Medical Examiners, and upon consent granted of the district attorney for St. Croix county and the Attorney General of the state of Wisconsin. An alternative writ of mandamus was issued out of this court directed to the respondent, and served. Due return was made to the writ, admitting substantially the allegations of the petition. It appears from the admitted facts that on the 24th day of February, 1908, a complaint was made to a justice of the peace of St. Croix county against said John Till upon the charge of wrongfully and unlawfully practicing medecine in this state. The complaint charged: That “John Till did on the 16th day of December, A. D. 1907, at said county, wrongfully and unlawfully practice medicine, by then and there prescribing for a fee and for compensation, drugs, medicines, and other medical treatment to and for one John A. Larson, for the cure and relief of wounds, fractures, bodily injuries, infirmities, and diseases of him, the said John A Larson, without him, the said John Till, having then and there and theretofore obtained from the Wisconsin State Board of Medical Examiners a license to practice as a physician or surgeon in said state as provided and required by the provisions of chapter 426, of the Laws of Wisconsin for the year A. D. 1903, and acts amendatory thereof, and without then and there having a certificate of registration issued to him, the said John Till, pursuant to the provisions of chapter 87 of the Laws of Wisconsin for the year 1899, and the said John Till not being then or there a dentist or resident refracting optician engaged in the practice of such profession. * * *” Upon this complaint a warrant was issued, and said John Till brought before the justice, tried, and found guilty as charged in the complaint, and sentenced to pay a fine of $100 and costs, and to imprisonment in the county jail for a period of three months. From this judgment Till appealed to the circuit court for St. Croix county. The action was placed on the regular calendar, and on the first day of the term, before any jury was impaneled in the case, said defendant, by his attorney, moved the court to quash the complaint and for discharge, for the reason that the complaint did not state facts sufficient to constitute an offense under the laws of Wisconsin. The motion was granted, and the court refused to further proceed with the action.

Dodge, J., dissenting in part.F. L. Gilbert, Atty. Gen., and A. C. Umbreit, in pro. per. as attorney for Wisconsin State Board of Medical Examiners, for relator.

J. B. Doe and W. F. McNally, for respondent.

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

The important question presented by the record is whether this court under its power of superintending control over inferior courts granted to it by section 3, art. 7, Const. Wis., has power to review and control the action and determination of the circuit court in respect to the matter complained of. Section 3, art. 7, Const. Wis., provides: “The Supreme Court, except in cases otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; but in no case removed to the Supreme Court shall a trial by jury be allowed. The Supreme Court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari and other original and remedial writs, and to hear and determine the same.” This court has had occasion to pass upon this provision of the Constitution at an early day in Attorney General v. Blossom, 1 Wis. 317, and many times since. The general scope of the subject has been quite fully covered in former decisions of this court. Atty. Gen. v. Blossom, 1 Wis. 317;Atty. Gen. v. Railroad Companies, 35 Wis. 425;State ex rel. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33;State ex rel. Mitchell v. Johnson, 105 Wis. 90, 80 N. W. 1104;State ex rel. Bank v. Johnson, 105 Wis. 164, 83 N. W. 320;State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158;State ex rel. Taylor Co. v. Elliott, 108 Wis. 163, 84 N. W. 149;State ex rel. Coffey v. Chittenden et al., 112 Wis. 569, 88 N. W. 587;In re Gates, 117 Wis. 445, 94 N. W. 292;State ex rel. Milwaukee Med. College v. Chittenden, 127 Wis. 468, 107 N. W. 500. In view of what has been said in the above cases, we do not feel that any extended discussion of the history and scope of the doctrine of superintending control under our Constitution is necessary. Moreover, we think the case before us is embraced within narrow limits, and the determination of it we regard sufficient without laying down rules for the government of future cases which may arise, and require the discussion of legal principles not necessary to be considered here. The words of the Constitution granting to this court the power of superintending control over inferior courts are defined in State ex rel. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33, and other cases heretofore cited. The question, therefore, arises in the instant case whether when the circuit court before entering upon the trial dismisses a criminal complaint, indictment, or information charging a criminal offense, and discharges the accused, this court has power under the authority conferred by the Constitution to require by appropriate writ the inferior court to proceed within its jurisdiction, and try the accused where there is no other adequate remedy. The high prerogative authority, though sparingly used, applies 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. 1402. In State ex rel. McGovern v. Williams, supra, the question presented was whether this court has jurisdiction under its power of superintending control to compel the circuit court to reinstate a criminal action, and proceed to the trial thereof, where the indictment had been wrongfully quashed by the trial court before a jury was impaneled, on the ground that the indictment was bad because the grand jury returning such indictment was illegally constituted. In that case this court held the question of whether the grand jury was an illegal grand jury, and therefore the indictment void, was a preliminary question, and that this court could order the trial court to reinstate the case and proceed with the trial of it. That case, we think, is the same in principle as the one now before us. Here the court below held the complaint bad for want of sufficient facts, and there because of illegality of grand jury. In each case, before entering upon the trial, the court passed upon the validity of the indictment, or, to be accurate, in the one case the complaint and in the other the indictment, and the question is whether an erroneous ruling that the indictment or complaint is bad for want of sufficient facts can be reviewed by this court in a proper case under its power of superintending control. It will be observed under the rule laid down in the cases before cited and especially in State ex rel. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. 33, that power always exists when an inferior court “either refuses to act within its jurisdiction or acts beyond its jurisdiction to the serious prejudice of the citizen,” and there is no other adequate remedy. Does the quashing of a valid indictment charging an offense known to the law and refusal to proceed to the trial of the accused for the offense charged amount to a refusal to act within its jurisdiction? As we have seen, this court held that it was where the ground upon which the indictment was quashed involved a preliminary question, namely, defect in impaneling the jury and no other adequate remedy existed (State ex rel. McGovern v. Williams [Wis.] 116 N. W. 225), and it was said: “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.”

So we come to the question before us, whether, in the absence of other adequate remedy, this court has power to compel the trial court to assume jurisdiction of a criminal action after it has quashed a good complaint upon the ground that it did not charge an offense. We see no difference in principle between the two cases, hence we think the doctrine laid down in State ex rel. McGovern v. Williams (Wis.) 116 N. W. 225, rules this case. The fact that it becomes necessary to review judicial action of an inferior court is no insuperable obstacle to the exercise of the power of superintending control in a proper case. State ex rel. Bank v. Johnson, 103 Wis. 623, 79 N. W. 1081, 51...