State ex rel. Tewalt v. Pollard

Winslow, J. 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 ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, there seems to be little necessity of discussing the nature and extent of the jurisdiction of this court by 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 ex rel. Meggett v. O'Neill, 104 Wis. 227; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226. 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 sec. 3457, Stats. 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 [235] 1849 (sec. 9, ch. 125, R. S. 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 sec. 3457, so far as it attempted to strip the circuit courts of the power to issue writs of prohibition. Such argument has been had upon the motion to quash, and the question is now before us for decision. The constitutional grant of power to the circuit courts (Const. Wis. art. VII, sec. 8) is as follows: “ The circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law; and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees] and give them a general control over inferior courts and jurisdictions.” This grant of power was said by this court at an early day to vest the circuit court with “greater powers than were probably ever before in a free government delegated to any one tribunal,— the united powers of the English King’s Bench, common pleas, exchequer, and chancery.” Putnam v. Sweet, 2 Pin. 302. See, also, State ex rel. Att'y Gen. v. Portage City W. Co. 107 Wis. 441. It will be at once seen that the section of the constitution quoted contains three separate grants of jurisdiction to the circuit courts: first, the original jurisdiction in all matters, civil or criminal; second, the appellate jurisdiction from all inferior courts and tribunals; and, third, the supervisory control over all such courts and tribunals. Added to these definite grants of jurisdiction is also given the power to issue ail writs necessary to make their orders and judgments effective, and give them a general control over inferior courts. It is plain that the words “ supervisory control,” in the section, are to be construed as [236] synonymous with the words “superintending control,” as used in the constitutional grant of power to this court. The first of these grants of jurisdiction, namely, the grant of original jurisdiction, is expressly limited to,matters not elsewhere excepted in the constitution, and not thereafter pi’o-hibited by law. The second grant of jurisdiction, namely, the appellate jurisdiction, is necessarily limited by future statutes regulating and providing for appeals, because appeals are always purely statutory matters, and may be provided or taken away as the legislature may see fit. But the third grant of jurisdiction, namely, the “supervisory control,” is not limited by the constitution itself, nor is power expressly or impliedly given to'the legislature to impair it or take it away. It stands in the constitution as an absolute grant of power, which is just as broad and sweeping in its terms as the grant of “ superintending control ” to this court in sec. 3 of art. YII of the constitution. • This grant carried with it the power to issue all the common-law writs necessary to carry it into effect, even had no writ been named in the constitution. Att'y Gen. v. Railroad Cos. 35 Wis. 425; State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591. See, also, an exhaustive and learned note to this case, on the subject of superintending control. 51 L. R. A. 33, subd. XII. It was, therefore unnecessary to name any writs in the constitution, because the court took the writs with the grant of jurisdiction, and hence, also, the fact that the writ of prohibition is not named in the section is of no moment. There is, of course, but one conclusion from these considerations, and that is that the legislature cannot take from the circuit court any part of its supervisory jurisdiction over lower courts, nor deprive the circuit court of the use of any writ so far as.it may be necessary for the exercise of that jurisdiction. So far, therefore, as sec. 3457, Stats. 1898, attempts to do this, it must be held to be void. No reason is perceived, however, why the section may not stand as a [237] valid enactment so far as it regulates the practice in the supreme court in the matter of the issuance of writs of prohibition from this court, and so far as it inhibits- the use of the writ by the circuit court in the exercise of its original jurisdiction. . There was therefore an adequate remedy open to the relator in the circuit court by which his rights could be protected if the respondent was acting beyond his jurisdiction ; and, such being the case, this court refuses to assume jurisdiction. By the Court.— Writ quashed.