Opinion
January 21, 1944. —
March 14, 1944.
PETITION for writ of prohibition. Writ denied.
For the petitioner there were briefs by Bogue, Sanderson Kammholz of Portage, attorneys, and Walter H. Bender of Milwaukee of counsel, and oral argument by David Bogue.
For the respondent there was a brief by the Attorney General and H. T. Ferguson, assistant attorney general, attorneys for the Public Service Commission, and by Roberts, Roe Boardman of Madison, attorneys for the village of Pardeeville, and oral argument by Mr. Ferguson and Mr. Glenn D. Roberts.
The facts and issues may be summarized as follows: On February 27, 1943, petitioner brought an action in the circuit court for Dane county, in which he was the plaintiff, against the public service commission of Wisconsin and the village of Pardeeville as defendants. The plaintiff therein, the petitioner here, challenged the validity of an order of the public service commission entered in an acquisition proceeding then pending before said commission on the 21st day of November, 1942. The action was brought under sec. 196.41, Stats. 1941. The village of Pardeeville, having an interest in the subject of the action, was made a party. Both defendants answered, and upon the issues thus joined a trial of the action was had on June 14, 1943, in Branch No. 2 of the circuit court for Dane county, the Hon. AUGUST C. HOPPMANN, circuit judge, presiding. The testimony taken upon the trial in the circuit court was thereafter transmitted to the commission by order dated June 23, 1943, which provided as follows:
"It is ordered that the return of the defendant commission, filed as aforesaid, together with a transcript of the evidence and testimony taken and received upon the trial of the above-entitled action, be remanded to the defendant commission for its consideration as provided by section 196.44, Statutes [1941]; and that the defendant commission make report to this court within ninety days from the date of this order as to any modification or affirmance without modification of the said order under review in the above-entitled action."
The commission made its report to the court under date of October 8, 1943, stating in effect that the testimony taken upon the trial in the circuit court had been fully considered; that it appeared from such testimony that a question had arisen as to the ownership of a certain cable connecting the company's plant and the lighting system on the island in the village of Pardeeville; that in consequence the commission held a hearing directed to a determination of the ownership of said cable; that the commission was satisfied from the evidence presented before it at such hearing that the Pardeeville Electric Light Company does not and never did own such cable and that the value thereof was not a proper element to be considered in the determination of the just compensation which the commission was required to determine; and that upon consideration of all the evidence taken upon the trial in the circuit court as well as the evidence taken upon the hearing before the commission, the commission did not consider such evidence sufficient to justify any alteration or modification of the order under review, and declined therefore to alter or modify the same.
Shortly after the commission filed its report Judge HOPPMANN died without having heard arguments of counsel or taken any steps directed to a decision of the issues. Thereafter, the Hon. HERMAN W. SACHTJEN was appointed and duly qualified as the successor to Judge HOPPMANN as circuit judge of Branch No. 2 of the circuit court for Dane county. On December 15, 1943, the public service commission moved that Judge SACHTJEN proceed to a decision of the issues upon the basis of the existing record after hearing arguments of counsel. This motion was opposed by petitioner. The motion was granted and the court on December 30, 1943, Judge SACHTJEN presiding, made the following order:
"That said motion be granted to the extent that the court will proceed with the determination of this action upon the record as heretofore made therein and will render judgment as it may be advised after hearing the arguments of counsel upon the merits and on the record with respect to the issues joined in said action."
The court further ordered:
"That such argument be heard before Branch No. 2 of the circuit court for Dane county on the 14th day of January, 1944."
It is alleged in the petition that unless restrained and prohibited by this court (the supreme court) from acting therein, said court (the circuit court), and said judge thereof, will proceed on the 14th day of January, 1944, to make its determination of the action pending between petitioner and the public service commission and the village of Pardeeville, without taking any other or further testimony, and entirely outside of its right and jurisdiction to so proceed, contrary to the rights of petitioner. It is further alleged that petitioner has no speedy or adequate remedy by appeal or otherwise in the premises.
Upon the application of petitioner, the chief justice on January 13, 1944, ordered that all further proceedings in the action be stayed; that the Hon. HERMAN SACHTJEN, circuit judge, be enjoined and restrained from proceeding in said action until the further order of the court; and further ordered that said application for leave to file its petition for a writ of prohibition be heard by this court on the 21st day of January, 1944. The commission and the village of Pardeeville filed their respective answers to the petition, oral arguments were made, and briefs were submitted. Additional facts alleged in the petition will be referred to in the opinion.
The only issue is whether the trial judge now sitting in Branch No. 2 of the circuit court for Dane county can refuse to hear further testimony, and proceed to make findings of fact and conclusions of law, and enter judgment based upon evidence, a portion of which was taken before the public service commission or its examiner and a portion taken before the Hon. AUGUST C. HOPPMANN, then acting circuit judge, now deceased.
Petitioner contends: (1) That it is the duty of the present sitting judge to at this time hear any testimony which the petitioner desires to offer in the action now pending in the circuit court as to any irregularities in the proceedings, before the commission; and (2) that the present sitting judge cannot make findings of fact and conclusions of law based in part on the weight of testimony taken in the circuit court before Judge HOPPMANN, but must determine the issues upon consideration of the new testimony, and the testimony taken before Judge HOPPMANN must be entirely disregarded as probative evidence.
Petitioner further contends that certain evidence which it offered on the trial before Judge HOPPMANN was improperly excluded, and that if the same testimony were offered again, before the present presiding judge, the court might admit same. It is not the function of a writ of prohibition to determine the admissibility of evidence on the trial of an action in the circuit court. At present we are only concerned with the question of the power and jurisdiction of the sitting judge. The merits of the litigation are not before us. The court may have erred in the respects claimed by petitioner; that we do not decide. If the court errs, petitioner has its remedy by appeal from the judgment. It is the settled law in this state that a writ of prohibition will not be issued where there is an adequate remedy by appeal or otherwise. State ex rel. Joyce v. Farr, 236 Wis. 323, 327, 295 N.W. 21, and cases there cited.
The question of the right of Judge SACHTJEN to continue the proceedings in, this matter as successor to Judge HOPPMANN, deceased, seems to be settled by Harrigan v. Gilchrist (1904), 121 Wis. 127, 99 N.W. 909. There the receivership proceedings were begun in 1893. Judge BAILEY's term of office expired on Monday, the 1st of January, 1898. On Saturday, December 30, 1897, he made an order which was subsequently set aside by his successor, Judge VINJE. The court said, page 428:
"The judge of the court at the time the order of December 30th was vacated, had the same authority to take such action as his predecessor would have had, if the latter's term of office had continued to the time thereof. . . . True, though a judge who comes into power, as here, possesses authority, in a sense, to review decisions of his predecessor, as under the circumstances of this case, such authority should be exercised with great care."
Further, page 430, the court said:
"So while we fully recognize the rule contended for by appellant's counsel, it is not one creating an absolute disability of a judge to set aside an order made by his predecessor, where the latter, if in office, might do it."
In Lanphere v. State, 114 Wis. 193, 89 N.W. 128, the plaintiff in error was convicted of the crime of rape on a female under the age of consent. After the verdict of guilty was returned and before sentence and judgment was pronounced the judge before whom the case was tried died. Subsequently, and against objection by counsel for the accused, judgment was entered upon the conviction by the court, Hon. JAMES judge of the circuit court for Clark county, presiding. At page 205, the court said:
"The judgment is questioned because it was pronounced by the court, a different judge presiding than the one who presided on the trial. That point is ruled against plaintiff in error by Pegalow v. State, 20 Wis. *61."
In the latter case the plaintiff in error was convicted of murder in the first degree. After verdict and before sentence and judgment the circuit judge before whom the case was tried had gone out of office. The sentence and judgment was pronounced by the successor judge. At page 62 the court said:
"It is proper to add that the plaintiff in error was convicted of murder in the first degree, and the statute fixes the penalty for that crime, leaving nothing to the discretion of the court. Where a discretion was given, there might be some reason for saying that the judge who pronounced the sentence should be acquainted with the circumstances of the case as disclosed at the trial, in order to award the proper degree of punishment. But no such reason can apply here."
However, in Harrigan v. Gilchrist, supra, and Lanphere v. State, supra, the acting judges had an exercise of discretion.
There is also applicable sec. 256.08, Stats., which provides:
" Vacancy in judgeship not to affect suits. No process, proceeding or action, civil or criminal, before any court of record shall be discontinued by the occurrence of any vacancy in the office of any judge or of all the judges of such court, nor by the election of any new judge or judges of any such court, but the persons so elected shall have power to continue, hear and determine such process, proceedings or action as their predecessors might have done if no new election had been held."
It is apparent that this section relates to vacancies in judgeships. Where one judge succeeds another by an election there is no vacancy in the office; but where a judge resigns or dies a vacancy is created, as in the instant case Judge HOPPMANN's death created a vacancy; and when the new judge is appointed and qualifies, he is clothed with all the power and jurisdiction possessed by his predecessor. There can be no question as to the jurisdiction of Judge SACHTJEN as the presiding judge of Branch No. 2 of the circuit court for Dane county. This being so, this court will not, by a writ of prohibition, control the action of the trial court in the action there pending. The court may err in the exercise of its jurisdiction. If it does, the alleged errors can be reviewed on an appeal from the judgment.
By the Court. — Writ denied.