State ex rel. Umbreit v. Helms

The following opinion was filed October 20, 1908:

KeRWIST, J.

The important question presented by the record is whether this court, under its .power of superintending control over inferior courts granted to it by sec. 3, *436 art. VII, Const., has power to review and control the action and determination of the circuit court in respect to the matter .complained of. Sec. 3, art. VII, Const., provides:

“The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall he coextensive with the state; hut in no case removed to the supreme court -shall a trial by jury he allowed. The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandam/us, injunction, quo warranto, cer-tiorari 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 All’y Gen. 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. Att'y Gen. v. Blossom, 1 Wis. 317; Att’y Gen. v. Railroad Cos. 35 Wis. 425; State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 E. W. 1081; State ex rel. Mitchell v. Johnson, 105 Wis. 90, 80 N. W. 1104; State ex rel. Fourth Nat. 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. W. G. Taylor Co. v. Elliott, 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. Milwaukee Med. Coll. 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 *437 tiie power of superintending control over inferior courts are defined in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081, 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 eases. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 614, 79 N. W. 1081; State ex rel. McGovern v. Williams, ante, p. 1, 116 N. W. 225; State ex rel. Harris v. Laughlin, 75 Mo. 358; Benners v. State, 124 Ala. 97, 26 South. 942; 1 Bishop, Eiew Grim. Proc. § 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 *438 one case the complaint and in the other the indictment, and the question is whether an erroneous ruling that the indictment or complaint is had 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. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 19 N. W. 1081, 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, ante, p. 1, 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, supra, 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. Slate ex rel. Fourth Nat. Bank v. Johnson, *439 103 Wis. 591, 623, 19 N. W. 1081; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 234, 82 U. W. 158; State ex rel. Winchell v. Circuit Court, 116 Wis. 253, 93 N. W. 16; State ex rel. McGovern v. Williams, supra. True, the rule is laid down generally in the text-hooks and decisions of the courts to the effect that mandamus issued under the power of superintending control cannot he used to serve the purpose of a writ of error to review judicial action of the trial court. State ex rel. McGovern v. Williams, supra; High, Extr. Leg. Hem. (3d ed.) § 188; State ex rel. Oshkosh, A. & B. W. R. Co. v. Burnell, 104 Wis. 246, 80 U. W. 460; State ex rel. Fourth Nat. Bank v. Johnson, supra. But this general rule, like all others, is subject’to its limitations, and it is only necessary to refer here to such as apply to the case before us. Others have been referred to in former decisions of this court where it is held that “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. McGovern v. Williams, supra; State ex rel. Fourth Nat. Bank v. Johnson, supra; State ex rel. Milwaukee v. Ludwig, supra; State ex rel. Winchell v. Circuit Court, supra. A well-recognized exception to the general rule is the one laid down by this court in State ex rel. McGovern v. Williams, supra, respecting a preliminary question arising in a criminal action before entering upon the trial thereof. Mr. Justice Dodge, speaking for the court, said:

“The courts, English and American, agree with practical unanimity that such preliminary decision, however judicial in character, may be reviewed under the superintending power, and, in case of erroneous -decision thereof by the inferior court, the latter -should be required, by mandamus, to proceed to perform its duty toward the principal controversy notwithstanding its decision upon the preliminary question” — citing a long line of authority, English and American, in support of the proposition. ,

*440 The cases do not appear to be in harmony as to wliat constitutes a preliminary question. State ex rel. McGovern v. Williams, supra. But we think the better authority and reason support the rule that a preliminary question respecting the control of trial courts in criminal actions arises upon any action of the court which amounts to a refusal to enter upon the trial of the case before a jury is duly impaneled and sworn to try the accused. So that' any question arising by objection to the proceeding before the jury is impaneled and sworn is a preliminary question. State ex rel. McGovern v. Williams, supra, and cases cited in opinion; Reg. v. Brown, 7 E. & R. 757. Indeed, it is not important whether wc call the question upon which the court passes and thus assumes to dispose of the case, and refuses to proceed within its jurisdiction, a preliminary question or not. Any erroneous disposition of a criminal case before a jury is impaneled and sworn by which the court refuses to further proceed with the trial upon a valid complaint, indictment, or information, where it appears “that the duty of the court below was plain, the refusal to perform such duty clear, the result of the refusal prejudicial, and the remedy by writ of error or' appeal utterly inadequate,” is sufficient to arouse the jurisdiction of this court under its power of superintending control. State ex rel. McGovern v. Williams, ante, p. 1, 116 N. W. 225, and cases cited; State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081; State ex rel. Oshkosh, A. & B. W. R. Co. v. Burnell, 104 Wis. 246, 80 N. W. 460; State ex rel. Fourth Nat. Bank v. Johnson, 105 Wis. 164, 83 N. W. 320; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158; Att’y Gen. v. Blossom, 1 Wis. 317; State ex rel. Mil. Med. Coll. v. Chiltenden, 127 Wis. 468, 107 N. W. 500; State ex rel. Schutz v. Williams, 127 Wis. 236, 238, 106 N. W. 286; Reg. v. Brown, 7 E. & B. 757; Merrill, Mandamus, § 203; State ex rel. Harris v. Laughlin, 75 Mo. 358; State ex rel. New Orleans v. Judge, *441 52 La. Ann. 1275, 27 South. 697; Grand Rapids v. Brandy, 105 Mich. 670, 64 N. W. 29; Terrell v. Greene, 88 Tex. 539, 31 S. W. 631; State ex rel. Smith v. Smith, 69 Ohio St. 196, 68 N. E. 1044; Virginia v. Rives, 100 U. S. 339; In re Grossmayer, 177 U. S. 48, 20 Sup. Ct 535 ; In re Connaway, 178 U. S. 421, 20 Sup. Ct. 951; State ex rel. Shannon v. Hunter, 3 Wash. St. 92, 27 Pac. 1076; Cassidy v. Young, 92 Ky. 227, 17 S. W. 485; McCreary v. Rogers, 35 Ark. 298; State ex rel. Keane v. Murphy, 19 Nev. 89, 6 Pac. 840; State ex rel. Bayha v. Philips, 97 Mo. 331, 10 S. W. 855. We therefore conclude that this court has power in a proper case to compel the circuit court to proceed with the trial of a criminal case when it refuses to do so and wrongfully quashes the complaint, information, or indictment upon which the accused is brought to trial before a jury is impaneled and sworn.

2. The next question to be considered is whether an exigency exists for the exercise of the power prayed for in the petition. Assuming, without deciding, that the complaint states a criminal offense and therefore that the court erroneously quashed the complaint, we approach the question of whether a proper case is made calling for the exercise of the power of superintending control. This court has repeatedly held that it should not exercise its power of superintending control upon light occasions or when other and ordinary remedies are sufficient. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081; State ex rel. Meggett v. O'Neill, 104 Wis. 227, 80 N. W. 447; In re Mielke, 120 Wis. 501, 98 N. W. 245; State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N. W. 1107; State ex rel. Mitchell v. Johnson, 105 Wis. 90, 80 N. W. 1104; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158. In Stale ex rel. Tewalt v. Pollard, supra, it is said:

“But this court will not exercise its jurisdiction when there is another adequate remedy by appeal or otherwise, nor *442 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 this state.”

In view of the nature of the offense and the facility with which future prosecution may be maintained, should it be found necessary on the part of the state to do so, it is considered by this court that no such serious prejudice will result from the action of the trial court in quashing the complaint as to create an exigency calling for the exercise of the power of superintending control. It therefore follows that the writ "hould be denied.

By the Court. — The writ is denied.