#### Longstaff, Plaintiff in error, vs. The State, Defendant in error.

*December 16, 1903*

January *12, 1904.*

Habeas corpus: *Jurisdiction of court commissioner: Review: Practice: Motion: Questions reviewed on*certiorari: *Writ of error.*

1. Sec. 23, art. VII, Const., provides that court commissioners may he vested with “such judicial powers” as are “prescribed by law,” not exceeding the powers “of a judge of a circuit court at chambers,” and sec. 2815, Stats. 1898, prescribes that a court commissioner may exercise within his county the powers and shall be subject to the restrictions thereon of a circuit judge at chambers, in all actions or proceedings in courts of record. *Held,*that a 'court commissioner has jurisdiction upon *habeas-corpus*to hear and determine whether a person, held for trial on a criminal offense punishable by imprisonment in the state prison, is imprisoned contrary to law.

2. The action of a court commissioner in discharging on *habeas corpus*a person held for trial, on a criminal charge punishable by imprisonment in the state prison may be reviewed upon proper proceeding by the circuit court.

3. In such case, a motion made in the ordinary way is a proper proceeding.

4. Where a court commissioner has jurisdiction of the subject matter on *habeas corpus*to test the validity of the imprisonment of one held for trial on a criminal charge, errors the commissioner may have committed in deciding any question of law or fact cannot be reviewed by the circuit court on *cer-tiorari.*

5. In such case, where the circuit court has improperly reversed the order of the court commissioner for errors of judgment in determining the case upon the merits, the error of the circuit court is properly reviewable on writ cf error.

EeRoe to reverse a judgment of the circuit court for Chippewa county: A. J. ViNje, Circuit Judge.

*Reversed.*

It appears from the record, and is undisputed, that Eeb-ruary 17, 1903, á complaint was made to the municipal judge of Chippewa county, charging the plaintiff in error with a criminal offense therein described, punishable by im*347prisonment in tbe state prison. Tbe municipal judge thereupon issued a warrant upon wbicb tbe accused was arrested and brought before tbe municipal court, and after a preliminary examination was held to bail for bis appearance at tbe circuit court, and, in default of tbe requisite bail, was committed to tbe county jail. February 21, 1903, upon tbe verified petition of tbe accused, setting forth all tbe evidence and proceedings before tbe committing magistrate, the accused procured from Hon. Arthur Gough, court commissioner for Chippewa county, a writ of *habeas*corpus, returnable before' him February 24, 1903, at 2 p. m., at tbe office of said commissioner, and wbicb writ was on February 21, 1903, duly served on tbe sheriff as required by sec. 3416, Stats. 1898, and bis fees for bringing up tbe prisoner were then and there paid; that at tbe same time, and on February 21, 1903, a notice in writing of such bearing was given to tbe district-attorney. February 24, 1903, tbe sheriff having tbe custody of tbe accused made return to such writ, and tbe accused at tbe same time traversed such return. Thereupon, and after full bearing, tbe said court commissioner by a written order discharged tbe prisoner from further custody by tbe sheriff. Upon tbe petition of tbe district attorney duly verified March 21, 1903, a writ of *certiorari*was duly issued from tbe circuit court of Chippewa county to Hon. Arthur Gough, court commissioner, requiring him to certify and return to tbe circuit court such writ, together with all tbe files, papers, and entries recorded, filed, or used in tbe proceedings in such matter. March 30, 1903, Commissioner Gough duly made such return. April 14, 1903, tbe circuit court determined and adjudged that said order of tbe court commissioner be reversed and annulled, and tbe accused was thereby. remanded to tbe custody of tbe sheriff, to be detained by him-as in tbe commitment required. To reverse that judgment tbe accused, on April 18, 1903, sued out this writ of error.

The cause was submitted for the plaintiff in error on the-*348briefs of If. *H. Stafford,*and for tbe defendant in error on that of tbe *Attorney General*and If. *D. Gorrigan,*second assistant attorney general.

Cassoday, O. T.

Court commissioners may be vested with “such judicial powers” as are “prescribed by law,” not exceeding tbe powers “of a judge of a circuit court at chambers.” Sec. 23, art. VII, Const.; *Faust v. State,*45 Wis. 273, 276; *Wis. Ind. School v. Clark Co.*103 Wis. 662, 663, 79 N. W. 422. Tbe statute provides that, except as therein otherwise provided, a

> “judge or commissioner may exercise within his county the powers and shall be subject to the restrictions thereon of •a circuit judge at chambers, according to existing practice and these statutes, in all actions or proceedings in courts of record, but all such orders may be reviewed by the court.” Sec. 2815, Stats. 1898.

Upon the facts stated, there can be no question but what the court commissioner had jurisdiction upon *habeas corpus*to hear and determine whether the accused was imprisoned •contrary to law. Whether such determination was rightful is another question. If the state deemed such determination wrongful, then the order of the court commissioner discharging the accused in the case at bar was undoubtedly reviewable upon the merits in a proper proceeding by the circuit court. *In re Hammer,*113 Wis. 96, 89 N. W. 111. A motion made in the ordinary way has recently been held by this court to be such proper proceeding. Id.; *State ex rel. Gaster v. Whitcher,*117 Wis. 668, 94 N. W. 787, 789. No such motion was here made. On the contrary, the attempt was here made to review the order upon the merits upon the return to the writ of *certiorari.*As said in the case last cited, when a writ of *certiorari*“is used as the foundation for juris- • diction to bring up and decide upon the validity .of a judicial •determination by any body or officer, jurisdictional questions •only are reached, and such questions pertaining to the de*349termination made by tbe officer or body particularly complained of.” *State ex rel. Gaster v,*Whitcher, 117 Wis. 672, 94 N. W. 788. Tbe writ of certiorari, wbon used to test the validity of some judicial or quasi-judicial proceeding, as-here, only reaches jurisdictional errors. Id. Since tbe commissioner bad jurisdiction of tbe subject-matter on *habeas*corpus, any errors be may have committed in deciding any question of law or fact could not be reviewed by tbe circuit court on writ of *certiorari.*This being so, it is obvious that .the circuit court improperly reversed tbe order of tbe court commissioner for errors of judgment in determining the case upon tbe merits. Such error of tbe circuit court is properly roviewable by this court on this writ of error. Sec. 3043, Stats. 1898.

*By tibe Court.*— Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded with direction to affirm the-order of tbe court commissioner.