Opinion
December 7, 1951 —
February 5, 1952.
ORIGINAL ACTION. Prohibition to the county court of Chippewa county and ORRIN H. LARRABEE, as judge of said court. Writ denied.
For the relator there was a brief by the Attorney General, Stewart G. Honeck, deputy attorney general, and Roy G. Tulane, assistant attorney general, and oral argument by Mr. Tulane.
Harold E. Stafford of Chippewa Falls, for the respondents.
One William W. Hebert, by Paul H. Raihle, his attorney, filed an affidavit denominated a petition in the county court of Chippewa county in support of an application for an occupational driver's license under sec. 85.08(25c), Stats. Hon. ORRIN H. LARRABEE, judge of said court, thereupon issued under date of November 27, 1951, the following order to show cause:
"On reading and filing the petition of William W. Hebert in the above-entitled matter and on motion of Paul H. Raihle, attorney for said William W. Hebert,
"It is ordered that Ben Marcus, commissioner of the Wisconsin motor vehicle department for the state of Wisconsin show cause before me, if any, at the municipal building in the city of Chippewa Falls, Wisconsin, on Thursday, December 5, 1951, at 2 o'clock p.m. why an occupational license should not be issued to the affiant and petitioner, William W. Hebert, as provided by law and let a copy of this order be served upon said commissioner eight (8) days prior to the hearing on this case.
"By the Court, "Orrin H. Larrabee "County Judge."This order to show cause was served upon the relator, Ben L. Marcus, who is commissioner of the motor vehicle department of the state of Wisconsin, whereupon the relator filed a petition with this court for leave to commence an original action for a writ of prohibition to restrain the county court of Chippewa county and Hon. ORRIN H. LARRABEE, judge of said court, from proceeding as a court in the matter of the application for an occupational license by Hebert.
As grounds for such application for a writ of prohibition, the relator alleges that Judge LARRABEE and other county judges of the state have misinterpreted the decision of this court in State v. Marcus (1951), 259 Wis. 543, 49 N.W.2d 447, and have erroneously concluded that proper practice to be followed with respect to pending applications for occupational licenses under sec. 85.08(25c), Stats., is to make the relator Marcus a party to such proceedings by order to show cause issued by the county court and not by the judge of such court. The relator further contends that the objective sought to be accomplished by such procedure is to enable county courts to make a court order for issuance of occupational licenses that will be binding upon relator, as commissioner of motor vehicles, unless he appeals from such order within the statutory period prescribed for appeals from orders of the county court.
The respondents have served a motion to quash the proceedings.
In the motion filed by respondents to quash the proceedings it is alleged, "that the order of said county court and of said presiding judge complained of is not a judicial order, and is purely administrative." The following statement appears in the brief filed in behalf of the respondents on the motion to quash:
"It was stated upon the oral argument that the order of Judge LARRABEE to show cause was signed `By the Court.' This was purely inadvertence on the part of the busy attorney who drafted it. Perhaps, to be technically correct such phrase should have been omitted. It should have indicated that it was issued by the judge and not by the court. Is this error of sufficient magnitude to make the case one of great exigency or publici juris? We think not. It should be disregarded as mere surplusage. It may be that we do not appreciate the great volume of orders, judgments, and papers signed by county judges. We wish to call the court's attention to the fact that although the order to show cause purports to be issued by the court, it is returnable before the judge and not before the court. The notice to the defendant is that of a pending matter before the judge. It is not a case where it is proposed that the county court, as distinguished from the judge thereof, proposes to assume jurisdiction to issue orders for occupational licenses."
From the foregoing it is abundantly clear that the respondent LARRABEE has correctly interpreted our opinion in State v. Marcus (1951), 259 Wis. 543, 49 N.W.2d 447, wherein it was held that sec. 85.08(25c), Stats., confers no judicial power upon county courts, and that any order issued pursuant thereto is an administrative order and not a judicial order. We are of the opinion that the fears of relator are groundless that other county courts will misinterpret our decision in State v. Marcus, supra, and because of such misinterpretation will conclude that if orders made pursuant to sec. 85.08(25c) in occupational-license matters, are issued in the name of the court, instead of the judge of such court, they thereby become judicial orders, instead of administrative orders.
It is very clear that this is not a case where the respondents deliberately sought to circumvent or disregard a decision of this court, and therefore it is not a proper case for the exercise of the superintending power conferred upon this court by sec. 3, art. VII of the Wisconsin constitution.
Writ denied.