State v. Fischer

• Decision Date: 10 October 1921
• Citation: 175 Wis. 69,184 N.W. 774
• Parties: STATE v. FISCHER.
• Court: Wisconsin Supreme Court

175 Wis. 69

184 N.W. 774

STATE

v.FISCHER.

Supreme Court of Wisconsin.

Oct. 10, 1921.

Error to Circuit Court, Kenosha County; E. B. Belden, Judge.

George Fischer, Jr., was indicted for the unlawful sale of intoxicating liquor, and he petitions for writ of certiorari to review orders of the circuit court overruling his motions to dismiss an indictment and quash indictment. Denied.Cavanagh & Mittelstaed, of Kenosha, for plaintiff in error.

William J. Morgan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., Frank S. Symmonds, Dist. Atty., of Kenosha, and Mortimer E. Walker, Sp. Asst. Dist. Atty., of Racine, for the State.

PER CURIAM.

In this case it is decided:

1. That the writ of certiorari to review the orders of the circuit court of Kenosha county overruling defendant's motion to dismiss and quash the indictment presented by the grand jury against the above-named defendant was improvidently issued and must be quashed.

2. That the circuit court of Kenosha county by indictment has jurisdiction of the offense charged against this defendant.

An opinion will be filed expressing the views of the court upon the question involved in this decision.

Petition to this court for a writ of certiorari to review orders of the circuit court of Kenosha county, Hon. E. B. Belden, Judge, presiding, dated September 1, A. D., 1921, overruling petitioner's motion to dismiss an indictment and overruling petitioner's motion to quash such indictment, for the reason that said circuit court of Kenosha county has no jurisdiction of the matter.

DOERFLER, J.

At the regular March term in the year 1921 of the circuit court for Kenosha county, a grand jury having been summoned and impaneled and sworn and charged to inquire for the state of Wisconsin, did on the 12th day of August, 1921, during said term, present an indictment containing four counts against the petitioner, charging him with the unlawful sale of intoxicating liquors under section 1569--3 of the Wisconsin Statutes. Petitioner was thereupon arraigned before said circuit court, pleaded not guilty to each of the counts of said indictment, and, among other things, moved to dismiss said indictment, for the reason that the circuit court for Kenosha county has no jurisdiction in said matter.

The motion of the petitioner was overruled, and he now seeks to have a review of the order of the circuit court by a writ of certiorari from this court.

During the argument of the matter before this court, it was stipulated in open court, by the respective counsel for the parties, that if this court should be of the opinion that the matter could not properly and legally be determined upon a writ of certiorari, that then and in that case, the matter could be treated as though it were before the court upon a petition for a writ of prohibition.

We will first consider and determine the issue involved with respect to the jurisdiction of the circuit court.

Article 7, § 8, of the Constitution of Wisconsin, provides as follows:

“The circuit courts shall have original jurisdiction of all matters civil and criminal within this state, not excepted in this Constitution, and not hereafter prohibited by law.”

Section 113.03 of the Statutes (1919) reads as follows:

“Circuit courts have the general jurisdiction prescribed for them by the Constitution and have power to issue all writs, process and commissions provided therein or by the statutes, or which may be necessary to the due execution of the powers vested in them. They have power to hear and determine, within their respective circuits, all civil actions and proceedings and all cases of crimes and misdemeanors of every kind not exclusively cognizable by a justice of the peace or some other inferior court; and they have all the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice, and to carry into effect their judgments, orders and other determinations, subject to re-examination by the Supreme Court as provided by law. Said courts and the judges thereof have power to award all such writs, processes and commissions, throughout the state, returnable in the proper county.”

[1] The circuit court, therefore, is a court with general jurisdiction to hear all matters, civil and criminal, within this state, and no portion of its constitutional or statutory jurisdiction can be deemed to have been taken away from it by the Legislature, excepting only by some unmistakable legislative language to that effect. Wieden v. State, 141 Wis. 585, 124 N. W. 509;State v. Grunke, 88 Wis. 159, 59 N. W. 452;Faust v. State, 45 Wis. 273;Goyke v. State, 136 Wis. 557, 117 N. W. 1027, 1126.

So that it is clear from the provisions of the Constitution and statutes above cited, and the interpretations of such provisions in the cases above referred to, that the circuit court of Kenosha county at the time when the grand jury was summoned, and while the proceedings were had under the indictment in question, had full and complete jurisdiction over the subject-matter involved, unless said circuit court had been deprived of such jurisdiction by legislative enactment, clear and unmistakable in its import and in the language used.

Chapter 18 of the Laws of 1909, creating a municipal court in Kenosha county, and defining its jurisdiction, etc., provides among other things as follows:

“Sec. 3. The municipal court of Kenosha county shall have and exercise powers and jurisdiction concurrent with and equal to the circuit court of Kenosha county in bastardy cases and in all cases of crimes and misdemeanors arising in said county, wherein the maximum penalty does not exceed five years in the state prison.”

Under this section of the Kenosha Act, it is clear that no jurisdiction is taken away from the circuit court, and that the jurisdiction of the municipal court in all cases of crimes and misdemeanors arising in said Kenosha county, wherein the maximum penalty does not exceed five years in the state prison, is concurrent with and equal to that of the circuit court.

Section 6 of said Kenosha Act provides:

“Said judge and the several circuit court commissioners shall have exclusive jurisdiction to institute and conduct examinations in all criminal and bastardy cases arising within the county of Kenosha, and the power and jurisdiction to cause to come before him or them the persons so charged with committing bastardy or any criminal offense, within such county and commit them to jail or bind them over for trial at the next term of said municipal court or to the circuit court as the case may require, and on a plea of guilty by the accused and a request by him to be sentenced, the said judge shall have power, authority and jurisdiction to sentence the accused for any offense except homicide.”

Section 6 makes it clear that the object and purpose of creating the Kenosha municipal court was to relieve in a large measure the circuit court of Kenosha county, and to divert a considerable portion of the business which prior to that time had been sent to the circuit court, to the municipal court. So that, while the circuit court has not been deprived of any jurisdiction, and while it has not had its jurisdiction curtailed, the Legislature has seen fit, by means of the Kenosha Act, to establish a new course which actions and proceedings must take, which, after having originated in the municipal court and before court commissioners, are diverted from their former course to the circuit court, to the newly created court, namely, the municipal court.

This conclusion so arrived at is the only one which harmonizes with the provisions of section 3 of the Kenosha Act, under and pursuant to which the municipal court of Kenosha county is authorized to exercise powers and jurisdiction concurrent with and equal to the circuit court of Kenosha county in bastardy cases and in all cases of crimes and misdemeanors arising in said county, wherein the maximum penalty does not exceed five years in the state prison.

Note, however, that the section last above referred to confers exclusive jurisdiction to institute and conduct examinations, etc., in cases referred to in said section, and nowhere refers to indictments of a grand jury. So that, unless in other provisions of the act, in express and clear and unmistakable language, it deprives the circuit court of its right to summon a grand jury in all criminal cases, and to proceed by indictment, the circuit court has not been deprived of such jurisdiction, and still retains the same.

Inasmuch as the other provisions referred to in said section 6 are not germane to the specific issue involved herein, they will not be further considered herein.

Section 7 of said Kenosha Act provides as follows:

“All examinations, recognizances and commitments from or by said municipal judge or other examining...