Opinion
February 8, 1961 —
March 7, 1961.
APPEAL from an order of the circuit court for Clark county: BRUCE F. BEILFUSS, Circuit Judge. Affirmed.
For the appellant there were briefs by Willis E. Donley and Robert F. Muza, and oral argument by D.J. Donley Muza, all of Menomonie.
For the respondents the cause was argued by William A. Platz, assistant attorney general, with whom on the brief were John W. Reynolds, attorney general, and Wayne W. Trimberger, district attorney of Clark county.
Application for writ of prohibition. On April 29, 1960, the appellant, Bert Peterson, was arrested and charged with violation of the state traffic laws by driving his automobile at an excessive rate of speed and driving the same after his license had been revoked. The warrant was issued out of the county court of Clark county.
By special act of the legislature said county court and the presiding judge thereof had been given all of the jurisdiction, powers, and authority of a justice of the peace or police justice in criminal actions and proceedings within said county. Appeals from said county court, where the court did not act as a court of record, are taken to the circuit court for Clark county.
Appellant appeared before said county court and demanded a jury trial. The court thereupon ordered a jury trial and directed the sheriff to furnish a list of 18 names as prospective jurors. The appellant objected to the list of names submitted by the sheriff on the ground that it was not in compliance with the provisions of ch. 167, Laws of 1959, which added sub. (2) (c) to sec. 255.04, Stats. This subsection reads as follows:
"The commissioners shall also furnish upon periodic request of the sheriff a current list of the names of persons available for jury duty in justice of the peace court, mental inquiries and re-examinations, coroner's inquests, and for such other purposes as the sheriff is required by law to summon or select a jury, which list shall contain not less than 100 nor more than 200 names of persons drawn and apportioned in the manner provided in par. (a)."
The objection was overruled and application was made to the circuit court for Clark county for a writ of prohibition commanding the county court to desist from further proceedings in the matter until compliance with the above-quoted section. An alternative writ was issued by the circuit court and a hearing was held thereon. Following the hearing an order was entered on September 6, 1960, quashing the alternative writ and returning the matter to the county court of Clark county for further proceedings, but with a stay of execution of the order for a period of twenty days. Before the expiration of the twenty-day period said Bert Peterson appealed from the order.
It is the contention of the appellant that ch. 167. Laws of 1959, is mandatory and that in effect it repealed other provisions of the statutes providing for the selection of juries in justice courts. The circuit court, as the basis for its order, held that said chapter provided only an optional method, particularly since there was no showing that any request had been made by the sheriff to the jury commissioners to furnish him with a list of names of persons available for jury duty.
The respondents, represented by the attorney general and the district attorney of Clark county, contend that relief by way of a writ of prohibition was not and is not available to the appellant. Several cases are cited in support of this contention. In response thereto the appellant cites some cases that he interprets as justifying relief in his case by means of a writ of prohibition directed to the county court and the county judge of Clark county.
In State ex rel. Kiekhaefer v. Anderson, 4 Wis.2d 485, 90 N.W.2d 790, we had occasion to discuss the circumstances under which a circuit court, under its superintending power, could and should grant a writ of prohibition directed to a so-called inferior court. The parties are familiar with the Kiekhaefer Case and we do not deem it necessary to quote extensively therefrom. To others interested in the subject we recommend a reading of the excellent opinion by Mr. Justice CURRIE. We there held that prohibition will not lie where there is an adequate remedy by appeal. In case the appellant is convicted in county court he will be entitled to appeal to the circuit court for Clark county, where he will be entitled to a trial de novo. Thus he will have an adequate remedy by appeal and is not entitled to the writ of prohibition. Therefore, the order of the circuit court quashing the alternative writ of prohibition must be affirmed.
Probably no more need be said. However, in order to avoid any unnecessary appeals in the future we deem it advisable to state that the trial court was correct and that sec. 255.04(2) (c), Stats., does not operate in the absence of a request by the sheriff to the jury commissioners.
Sec. 960.12, Stats., provides for the selection of a jury in criminal matters in justice court and in the present instance there was compliance with that section. In civil matters in justice court there are other provisions for the selection of jurors provided by secs. 302.05 to 302.10, inclusive. Ch. 167, Laws of 1959, did not specifically provide for the repeal of these sections and it is fundamental that implied repeals are not favored and an earlier act will be considered to remain in force if the same may be construed in harmony with the later one. This principle is well established. For authorities see Union Cemetery v. Milwaukee, post, p. 64, 108 N.W.2d 180.
By the Court. — Order affirmed.