Referring now to the purposes mentioned in paragraphs 2 and 3 herein before quoted, this department has consistently ruled that a street railway company could not be organized for any purposes other than those expressly authorized by statute. See Biennial Reports and Opinions of the Attorney-General for 1908, p. 235; id. p. 260; id. for 1906, p. 141.

The most generous ruling made by this department upon that question was in an opinion rendered to yourself under date of January 13, 1913, in which it was held that gas as well as electric light plants for the furnishing of light, heat, power, etc., might be operated in connection with each other and in connection with electric railways. Former rulings of this department had confined purposes, properly coupled with the operation of a street railway company, to that of conducting an electric plant for furnishing heat, light, power, etc. The ruling of January 13, 1913, was prompted by a consideration of chapter 612 of the laws of 1911, which, it was thought, amounted to a practical construction on the part of the legislature of prior laws upon the subject.

Paragraph 2 of the articles under consideration provides as follows:

"(2) Constructing, operating, maintaining, and extending of a public utility for the purpose of manufacturing, selling, furnishing and delivering to the public electricity, gas and water, for heat, light, power and such other purposes as may hereafter be required.'

There is no statutory authority permitting a street railway company to operate a water company, and the articles must be condemned for the reason that paragraph 2 above quoted provides as one of the provisions of an incorporation the furnishing and delivering of water to the public.

Paragraph 3 provides as follows:

"(3) Developing, constructing, operating, maintaining and extending Water Power, including dams, buildings, machinery and all necessary appurtenances."

It is probable that a street car company may develop, construct, operate and maintain a water power which would include necessary dams in so far as it is incidental to the business of a street railway company or incidental to the business of "manufacturing, creating or generating electricity for power, light or heat, or any any other purpose," but I do not think it could operate a water power plant unless it be incidental to the businesses above mentioned.

The fact that the articles under consideration do not limit the operation of water power plants to such purposes as may be incidental to the purposes expressly authorized by statute, is another reason why they cannot be approved.

Intoxicating Liquors License-A saloon business discontinued for six months is abandoned in contemplation of section 1565d.

EDWARD S. SCHMITZ,

District Attorney,

Manitowoc, Wisconsin.

January 7, 1915.

In your letter of December 2nd you asked for an opinion concerning the right of the town board in a certain town in your county to issue a license in a certain locality. An opinion had been rendered to the district attorney under date of November 9th under the statement of facts given by him that it would be unlawful to issue a license to such location. You gave additional facts and under the same. you desired to know whether they will make any difference in the ruling given by this department.

After receiving your letter and statement of facts I submitted them to the then district attorney of your county and asked him to investigate the case and give me all the facts concerning this particular location. He responded with a letter under date of January 4th in which he stated the facts as follows:

"This saloon property is located within the town of Manitowoc Rapids, which has a number of saloons in excess of the population limit; it was conducted for some years by one Anton Schmitz, who did not appear to be making a success of the business and during this time borrowed money on mortgage security thereon; he died some time in 1912, after having conveyed his interest in said premises by quit claim deed, to his wife, who conducted the saloon business up to the 1st day of July, 1913, about which time she conveyed her interest in such premises by quit claim deed to one Charles Auclair, who applied for and procured a license for the year beginning July, 1913, and ran the business under such license until July, 1914. In June, 1914, and prior to the expiration of his license, he made application for another year's license, filing same, together with his bond, with the town clerk. He also about the same time, made application for a license in the city of Two Rivers in this county and filed same, together with his bond therefor, and which latter license was issued to him and under which he is now conducting a saloon at Two Rivers. He neglected to accept a license for the premises in the town of Manitowoc Rapids and never informed the town Board one way or the other as to whether or not he desired a license, and abandoned the premises on or about the 1st day of July, 1914, which premises have since remained vacant.

"On the 11th day of August, 1914, those premises were sold upon foreclosure sale and were bid in by the Schreihardt Brewing Company of this city, one of the principal creditors, who afterwards sought to obtain a license.'

The facts are substantially the same as those presented by you with the exception that you state that the present owner has leased the premises to a party who desires a license, while Mr. Healy, the then district attorney, stated that the Schreihardt Brewing Company sought to obtain the license. It appears that Charles Auclair, at the beginning of the license year, applied for a license in the city of Two Rivers and received such license. He, of course, could not have a valid license issued to him in two different municipalities for the reason that it is necessary to be a resident of the locality in which the license is issued.

Under the facts stated it seems to me that Charles Auclair had abandoned the premises in question for saloon purposes prior to the time when they were sold to the present owner. They have now been vacant since July 1st and

although, under the facts as now given, the case is not as strong as it was under the statement of facts as first given by the former district attorney, still I believe the conclusion arrived at in the former opinion is the correct one and that the case is ruled by Koch v. State, 157 Wis. 437, and People ex rel. Bagley v. Hamilton, 25 N. Y. App. Div. 428.

You are therefore advised that no liquor license can legally be granted to the place in question.

Public Officers-Criminal Law-On change of venue in examination before court commissioner to justice, latter may not try case. Secs. 4739 and 4809 construed.

E. E. BRINDLEY,

District Attorney,

Richland Center, Wis.

January 7, 1915.

In your communication of the 6th inst. you state that certain alleged offenders have been arrested before Hon. W. S. McCorkle, county judge and court commissioner. You say you suspect that the defendants will file affidavits of prejudice, presumably under sec. 4809, statutes, and that the next nearest magistrate in the city is a justice of the peace. You ask whether in case the proceedings are transferred to a justice of the peace the cases may be tried and determined by the justice of the peace or whether he can simply continue the examination and bind the defendants over to the circuit court for trial.

The proceedings are instituted under chapter 195 of the statutes entitled: "Of the arrest and examination of offenders, commitment for trial and taking bail." By virtue of sec. 4775, such proceedings may be instituted before "the judges of the several courts of record in vacation as well as term time, court commissioners and all justices of the peace."

2-A. G.

The purpose of the proceedings is to ascertain whether an offense has been committed, whether there is probable cause to believe the defendant guilty and to hold him for trial. Such is the nature of the proceedings and the purpose for which they are instituted.

Is the nature and the purpose of the proceedings changed because, forsooth, on a change of venue from a court commissioner they are sent to a justice of the peace, who, under certain circumstances, may hold a court to try the offense charged against the defendant? It would seem that such sudden transformation could be worked only by some trick of judicial legerdemain, as it would have for its support neither authority nor logic. These proceedings are instituted merely for the purpose of holding an examination preliminary to the trial of the defendant in the circuit court and this is the purpose of the proceedings, no matter before what magistrate they may eventually come. I do not see that because they may come before a justice of the peace it can be argued that he should proceed to hear, try and determine the case because under some circumstances he does have jurisdiction to try the offense charged, any more than the circuit judge, who, under certain circumstances, has authority to hold a court for the trial of an offense charged, should do so.

I suppose those who contend that the justice should proceed to hear, try and determine the case do so because it is provided in sec. 4739 that justices of the peace shall have power and jurisdiction throughout their respective counties, among other things,

"To hold a court, subject to the provisions hereinafter contained, to hear, try and determine all charges for offenses arising within their respective counties the punishment whereof does not exceed six months' imprisonment in the county jail or a fine of one hundred dollars, or both such fine and imprisonment, except as otherwise provided."

It will be noted that under the provision above quoted the justice is authorized "to hold a court" for the trial of