* Motion for rehearing denied, without costs, on January 14, 1947. *Page 378 Action commenced by alternative writ of prohibition by Norris E. Maloney, district attorney of Dane county, against the Hon. ROY H. PROCTOR, as judge of the superior court of Dane county, to prohibit the exercise of jurisdiction in excess of the power of said court. From a judgment quashing the alternative writ the state appeals. The facts are stated in the opinion. The case is an appeal by the state from the judgment of the circuit court quashing its alternative writ of prohibition to prohibit the superior court from proceeding to trial of a defendant in a criminal case without first holding a *Page 379 preliminary examination to bind the defendant over to it for trial.
The appellant claims that the court was about to exceed its jurisdiction by proceeding to try the defendant, Marion Eleanor Aasen, in a criminal case pending in that court while acting with only the jurisdiction and bound by the practice of justice of the peace courts, and that therefore upon conviction of Marion Eleanor Aasen the court would be obliged under sec. 54.03(3), Stats., to impose a sentence that a justice court is without jurisdiction to impose. (Marion Eleanor Aasen will hereinafter be referred to as the "defendant.") The remedy invoked is proper in a proper case. The circuit court has power, in a proper case, to issue its writ of prohibition against the superior court. State ex rel. T. L. Smith Co. v.Superior Court, 170 Wis. 385, 175 N.W. 927. And the writ of prohibition is proper to prohibit a court of criminal jurisdiction in excess of what a justice of the peace may exercise, when bound by justice of the peace practice, in the conduct of criminal cases of which a justice of the peace has jurisdiction, from exercising jurisdiction in excess of what a justice of the peace may exercise. State ex rel. Beck v. Baird,238 Wis. 624, 300 N.W. 752.
The defendant was charged with fornication in a complaint alleging her to be a single female over the age of sixteen years. The penalty for the offense of fornication is six months in the county jail or a fine not exceeding $100 or both. Sec. 351.05, Stats. Of an offense so punishable a justice of the peace has jurisdiction. Sec. 360.01(5). In criminal cases brought in the superior court of which a justice of the peace has jurisdiction, the court proceeds according to justice court practice, in which no preliminary examination is held, and the court proceeds upon the complaint without an information being filed. Sec. 12, ch. 217, Laws of 1929; secs. 360.06, 360.10, Stats.
Sec. 54.03(3), Stats., provides that "in lieu of the penalty provided by statute, . . . under which . . . [the defendant] *Page 380 is tried, the court may commit any female person except those convicted of murder in the first or second degree to the home for women for a general or intermediate term, which term shall not exceed five years; . . ." and sub. (4) of sec. 54.03 provides that all courts of record, of which the superior court is one, having jurisdiction "shall have the power to commit as provided in subsection (3)."
On trial of a criminal case before a justice of the peace, if it shall appear from the evidence that there is probable cause to believe the defendant guilty of an offense of which the justice has not jurisdiction to impose the penalty for that offense prescribed by statute, the justice shall stop the trial and bind the defendant over to a court for trial that has such jurisdiction. Sec. 360.30, Stats. The superior court is bound to follow that practice, sec. 12, ch. 217, Laws of 1929; Stecher v. State,237 Wis. 587, 592, 297 N.W. 391.
When arraigned before the superior court the defendant, according to the petition, the truth of which the motion to quash admits, interposed "a special plea in bar, or in the alternative a plea of not guilty." The district attorney at this time called to the attention of the court, sec. 54.03(3), Stats., and requested the court to set the case down for a preliminary hearing. The court denied the request and instead set the case down for trial. When the case was called for trial, the attorney for the defendant withdrew the special plea. The district attorney then again called the court's attention to sec. 54.03(3). The court then ruled that it had jurisdiction to try the case on the complaint. The petition alleges and the parties stipulated that the court would so try the case unless enjoined by a writ of prohibition.
It is to be noted that sec. 54.03(3 ), Stats., above stated, is not mandatory in its terms. It only provides that "in lieu of the penalty provided by statute . . . the court may" pronounce sentence under that statute. The terms of the statute obviously leave it to the court to determine whether to sentence under that statute or the general statute prescribing the penalty for the offense. The superior court so ruled and so did the *Page 380a circuit court. That the power of the court to sentence under sec. 54.03(3) is discretionary is emphasized by sec. 54.03(4) which declares only that courts of record having criminal jurisdiction "shall have the power" to commit as provided by sub. (3) regardless of their other statutory jurisdiction. The obvious meaning is not that such courts must sentence under sub. (3), but that they have power to do so. We construe sub. (3) as did the circuit court.
It follows that the judgment of the circuit court must be affirmed unless sec. 54.02(3), Stats., otherwise requires. It provides that "female persons over eighteen years of ageshall be committed to the Wisconsin home for women." This section is mandatory, and justices of the peace, and the superior court sitting as a justice court, have no jurisdiction to sentence female persons over eighteen years of age to that institution. Their sentences of imprisonment must be and cannot exceed that prescribed for the offense charged, sec. 360.21, which here is to the county jail not to exceed six months. Sec. 351.05. But there is nothing in the instant record showing that the defendant is "over eighteen years of age." The only reference to her age in the record is contained in the complaint, which merely states her age as over sixteen. If she is sixteen or seventeen years of age, sec. 54.02(3), does not apply. We may surmise that if in course of the trial of the defendant it appears that she is over eighteen years of age, it will then be the duty of the court to stop the trial and bind her over for trial either to the circuit court or the superior court upon an information so charging her age. But that case is not now before us and we cannot here decide it.
By the Court. — The judgment of the circuit court is affirmed.
RECTOR, J., took no part.
The following opinion was filed January 14, 1947: