In re Court of Honor of Ill.

• Decision Date: 19 March 1901
• Citation: 109 Wis. 625,85 N.W. 497
• Parties: IN RE COURT OF HONOR OF ILLINOIS.
• Court: Wisconsin Supreme Court

109 Wis. 625

85 N.W. 497

IN RE COURT OF HONOR OF ILLINOIS.

Supreme Court of Wisconsin.

March 19, 1901.

Syllabus by the Judge.

1. “The original jurisdiction of the supreme court extends to all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.”

2. If any given case satisfies the test above indicated, the court may exercise its jurisdiction or not as it sees fit, where the circuit court has concurrent jurisdiction.

3. In a case falling within the original jurisdiction of the court, the general rule is not to exercise it where the primary right to be vindicated is of a private nature, though the question involved is publici juris, and even though a state officer is a party.

4. No departure from the general rule indicated will be made unless the circumstances are of such an extraordinary character that adequate relief cannot be obtained by first resorting to the jurisdiction of the circuit court. Mere delay, or even irreparable loss to a private person, will not necessarily be deemed sufficient.

Application of the Court of Honor of Illinois for a writ of mandamus against Emil Giljohan, commissioner of insurance. Application denied.

Application for the exercise of the original jurisdiction of this court to compel Emil Giljohan, commissioner of insurance of the state, to grant a license to the relator to do business in this state. The petition is to the following effect: The relator is a corporation duly organized under the laws of the state of Illinois as a fraternal beneficiary association. Its purposes are to furnish life endowment and pecuniary benefits to the beneficiaries of its deceased members, also accident and permanent indemnity to its members, and to encourage them in business and assist them in obtaining employment; also to promote benevolence and charity. The membership is confined to white persons. The jurisdiction of the corporation extends to and includes the state of Wisconsin. January 22, 1891, it applied to the commissioner of insurance of this state for a license under section 1955e, Rev. St. 1898, and complied with all the requirements of the statute necessary to the granting of such application. The commissioner, though admitting that the application was in conformity to law, refused to grant the same solely upon the ground of relator's rate of assessment being too low to enable it to conduct a safe business. After such denial the commissioner proposed to reconsider the matter upon making an examination of the relator's affairs according to section 1920, Rev. St. 1898. After such proposition was received by the relator and its attorney, it again demanded a license, which was refused for the same reason as before. The petitioner has made preparation to do business in this state, and its failure to obtain the necessary license is causing it irreparable damage. The application is made for the exercise of the original jurisdiction of the court because a resort to a circuit court would be attended by great delay. The question involved is purely one of law and is a question of general interest to the state.

An alternative writ of mandamus was prayed for.

H. W. Chynoweth, for petitioner.

MARSHALL, J. (after stating the facts).

The question presented for decision is, should the original jurisdicion of this court be used where the primary right sought to be vindicated is private, even though a state officer is concerned as a party and the question involved is in some respects publici juris? The general limits of the original jurisdiction of the court were declared in Attorney General v. Railway Co., 35 Wis. 425, thus: “It extends to all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.” “Quod ad statum reipublicæ pertinet.” That doctrine, since declared, has been rigidly adhered to as being strictly in accord with the intent of the framers of the constitution. State v. Doyle, 40 Wis. 175;State v. Supervisors of Juneau Co., 38 Wis. 554;State v. St. Croix Boom Corp., 60 Wis. 565, 19 N. W. 396;State v. Cunningham, 81 Wis. 444, 51 N. W. 724;State v. Shaughnessey, 86 Wis. 646, 57 N. W. 1105;State v. Johnson, 103 Wis. 591. The rule for measuring the original jurisdiction of the court was so exhaustively and ably discussed by the learned chief justice who wrote the opinion in Attorney General v. Railway Co., supra, that no one since that time has ventured to enlarge upon what was there said. As a statement of premises, clear demonstration of the correctness thereof, and deduction of an indisputable conclusion, the opinion of the learned chief justice has always challenged and readily received the admiration of the judiciary and the profession, and will continue to do so.

The test of when a given case comes within the limits stated, of the original jurisdiction of the court, is not whether the wrong sought to be redressed is a proper subject for the use of one of the writs mentioned in the constitution, for in respect to such jurisdiction, while the writs are given not in aid of but for jurisdiction, it does not extend to all cases where one of such writs or the Code substitute therefor is proper, but stops at the limits of the prerogatives of sovereignty. It follows that if the question involved comes within the limits of the court's original jurisdiction as it has been defined, then and then only does judicial power to use one of the prerogative writs in the exercise of it follow. So every case is to be decided, not by the scope of any particular writ. The test is, does the wrong to be redressed affect the sovereignty of the state, its franchises or prerogatives, or the liberties of its people? If we pass that test, the rest involves mere means of exercising jurisdiction or judicial discretion as to whether the jurisdiction ought to be used under the circumstances of the given case.

Coming to the question of whether controlling a state officer in the performance of his legal duties, where the right to be vindicated is purely private, though the question is publici juris, is within the jurisdictional limits stated, we find that the previous holdings of the court do not furnish a definite guide in a case exactly like this. The precise question on the precise facts does not appear to have been discussed or decided, though it has many times been discussed and decided in principle. Jurisdiction was assumed in State v. Root, 83 Wis. 667, 54 N. W. 33, 19 L. R. A. 271. No question of judicial power, however, was raised by counsel or referred to in the opinion of the court. In State v. Doyle, supra, the proceeding was to compel the revocation of a license which it was claimed the secretary of state, in defiance of a positive statute, had refused to revoke. Jurisdiction was taken upon the ground that the judicial question...