In re Court Room & Offices of the Fifth Branch of the Circuit Court, Milwaukee County

Barnes, J.

This is the first .time in the history of this •court that a controversy between a circuit judge ancha county board over quarters for a court has reached this tribunal, and the few precedents that have been cited would indicate that such regrettable disputes were infrequent elsewhere.

We have a general finding or conclusion by the circuit judge that the quarters which the Gounty Board proposed to furnish for his court were neither suitable nor convenient. We have also a recital of the specific facts upon which the circuit judge based such conclusions. There can be no doubt that the specific facts found sustain the general conclusion reached. A single one of them would be all-sufficient to do so. We refer to the finding that there was no jury room in the new quarters which the Board proposed to provide. A large part of the time of circuit courts is taken up with the trial of jury casés. As soon as one case is submitted another is called, and the business of the court is being dispatched while the jury which has retired is deliberating. ‘ Such deliberations may consume but a short time or they may last a couple of days. If no jury room is provided, the court room must be placed at the disposal of the jury and the business of the court must be entirely suspended while each jury is endeavoring to reach a verdict. We shall indulge in no argument to show that, in a county like Milwaukee, circuit court quarters which have no jury room for use while jury cases are heing tried are neither *120 suitable, adequate, nor convenient. Tbe proposition is self-evident.

Judge TurNer in bis letter to tbe chairman of tbe County-Board, under date of February 25, 1911, stated tbat tbe quarters wbicb tbe Board proposed*to furnish were inadequate- and stated why they were so. In bis letter of April 7th to tbe Committee on Public Buildings be did likewise. Replies, were sent to each of these letters by said committee, but not a single statement of fact in either of Judge TurNer’s letters was controverted, nor was tbe slightest reference made to tbe conclusions drawn from such facts. On tbe motion to dissolve tbe injunction tbe County Board might have taken issue with tbe circuit judge on any or all of tbe recitals of fact made or conclusions drawn therefrom by tbat official, but it did not do so. By reason of tbe failure to deny tbe correctness of the-facts recited, tbe recitals must stand as tbe truth and as being-practically admitted for tbe purposes of this appeal. Tbe County Board evidently stood and still stands on tbe proposition tbat tbe duty of providing a court room was by law vested in tbe Board and was one in reference to wbicb tbe circuit judge bad nothing whatever to say.

Tbe County Board was wrong in reaching this conclusion.. Circuit courts are provided for and their jurisdiction is defined by tbe constitution. Secs. 2 and 7, art. YU, Const. This jurisdiction is somewhat amplified by secs. 2420 and 2654, Stats. (1898), as well as by other statutory provisions. By sec. 2424, Stats. (1898), Judge TurNee was obliged to* bold four terms of court each year, at each of wbicb a jury was required to be summoned unless otherwise ordered by tbe court. By sec. 656, Stats. '(1898), it is provided tbat “when, tbe court bouse shall from any cause become unsafe, inconvenient or unfit for holding court, tbe county board shall appoint some other convenient building at tbe county seat for-tbat purpose temporarily.” Tbe law creating tbe court over which Judge TurNEr presides (Laws of 1907, cb. 645, see. 4) provided that “The Board of Supervisors of Milwaukee *121 County shall provide court rooms and suitable offices wherein said judge may discharge his duties.” It was thus made the statutory duty of the County Board to provide suitable and convenient quarters for the accommodation of the court. There was a duty to do so under the constitution, independent of and regardless of any statute, and it is not correct to say that there is a discretion vested in the County Board in reference to the selection of court rooms which is entirely beyond the control of the courts. If such were the case, it would be within the power of county boards to at least greatly curtail the usefulness of circuit courts by declining to furnish them quarters in which judicial business could be transacted. The authorities, in so far as any can be found 'on the subject, are to the effect that a constitutional court of general jurisdiction has inherent power to protect itself against any action that would unreasonably curtail its powers or materially impair -its efficiency. A county board has no power to even attempt to impede the functions of such a court, and no such power could be conferred upon it. Circuit courts have the incidental power necessary to preserve the full and free exercise of their judicial functions, and to that end may, in appropriate cases, make ex-pcurte orders without formally instituting an action to secure the desired relief. The following cases sustain what has been said, and no cases holding a contrary doctrine have been called to our attention: Supervisors v. Wingfield, 27 Gratt. 329; New Orleans v. Bell, 14 La. Ann. 214; Belvin v. Richmond, 85 Va. 574, 8 S. E. 378, 1 L. R. A. 807; Ex parte Mayor, etc. of Birmingham, 134 Ala. 609, 33 South. 13; Board of Comm’rs v. Stout, 136 Ind. 53, 35 N. E. 683, 22 L. R. A. 398; Board of Comm’rs v. Gwin, 136 Ind. 562, 36 N. E. 237, 22 L. R. A. 402; Dahnke v. People, 168 Ill. 102, 48 N. E. 137; State ex rel. Kitzmeyer v. Davis, 26 Nev. 373, 68 Pac. 689; Mayhew v. Comm’rs, 1 Disn. 186; In re Lyman, 55 Fed. 29; Comm’rs v. Hall, 7 Watts, 290; In re Janitor, 35 Wis. 410; In re Waugh, 32 Wash. 50, 72 Pac. 710.

*122 It being apparent from tbe record now before tbis court tbat tbe quarters wbicb tbe County Board proposed to furnish were inadequate and tbat tbe circuit judge was witbin bis rights in refusing to occupy them, the only remaining question wbicb it is necessary to consider relates to tbe proper practice to pursue when such a disagreement arises. Disputes of tbis character apparently have been few, and tbe practice to be followed is not very well settled. In some of tbe cases above cited it is likened to a contempt proceeding wbicb tbe judge has a right to dispose of in a summary manner. The order here made, although absolute in form, was not so in fact. Tbe appellant bad tbe right to move to set it aside and to have it vacated if erroneous for any reason, and might make any proper showing of fact or law at its command on tbe bearing of tbat motion, and was entitled to have tbe same considered and disposed of in a fair and impartial manner. So tbe order in practical effect amounted to nothing more than an order to show cause, coupled with a temporary restraining order operative until a bearing was bad. Tbis being so, all appearance of autocratic action by tbe circuit judge would have been avoided bad an order to show cause, with a temporary restraining order, been issued in tbe first instance, and we think it would have been tbe better practice to have instituted the proceeding in tbat way. But tbe difference between tbe two methods of procedure is one of form rather than of substance, and tbe circuit judge bad jurisdiction to proceed in either way. Judge TurNer acted witbin bis right in deciding primarily tbat tbe quarters wbicb tbe County Board proposed to furnish were inadequate. But tbe law vests in tbe county board tbe power to furnish court rooms, and, so long as those furnished are reasonably adequate, courts cannot insist tbat different quarters be provided, although they may be more commodious or pleasant or even more convenient. A circuit judge cannot deprive a county board of tbe right to be beard on tbe sufficiency of tbe court rooms wbicb it proposes to place at tbe *123 disposal of the circuit court, and we do not understand that Judge Turner claims or asserts any such right. The order appealed from is a final order affecting a substantial right made in a special proceeding, and is therefore appealable.

By the Gov/rt. — Order affirmed.

The following opinion was filed February 2, 1912: