
    State ex rel. Carbage, Petitioner, v. Milwaukee County Circuit Court, Hon. Victor Manian, Respondent.
    
      Decided February 27, 1976.
    
    (Also reported in 238 N. W. 2d 721.)
    For the petitioner: Dominic S. Amato of Milwaukee.
    For the respondent: E. Michael McCann, district attorney of Milwaukee, and Lee Wells, deputy district attorney.
   Per Curiam.

The petitioner herein seeks, by means of a writ of prohibition, dismissal of charges pending against him in the respondent court on the ground that his preliminary examination was conducted by a judicial court commissioner. In State ex rel. Perry v. Wolke, ante, p. 100, 237 N. W. 2d 678, this court decided that a judicial court commissioner did not have authority to conduct a preliminary examination. This decision was specifically held to be prospective only.

The petitioner contends that: (1) prior to the decision in the Perry Case he had filed a motion to dismiss the proceedings against him because his preliminary examination had been before a judicial court commissioner; (2) the respondent had not ruled on the motion prior to this court’s decision in the Perry Case; and (3) the petitioner had sought a writ of prohibition in this court prior to the Perry decision.

We find none of these reasons as justifying the application of the Perry decision to the petitioner. The opinion in Perry specifically discussed the retroactivity question, and we concluded that the decision should not be applied to any person whose preliminary examination had been held prior to the Perry decision, even though he had filed prior to Perry an objection to his preliminary examination on the ground alleged in Perry and whether the court had not ruled on the motion prior to Perry. The fact that the petitioner had also sought a writ of prohibition in this court prior to the Perry decision similarly does not change the application of Perry to him.

For the above reasons, the court refuses to sign the order to show cause why the petition requested herein should not be granted.  