In re Heil

• Decision Date: 16 February 1939
• Citation: 230 Wis. 428,284 N.W. 42
• Parties: Petition of HEIL (Emergency Board). Petition of HEIL (State Annuity and Investment Board).
• Court: Wisconsin Supreme Court

230 Wis. 428

284 N.W. 42

Petition of HEIL (Emergency Board).

Petition of HEIL (State Annuity and Investment Board).

Supreme Court of Wisconsin.

Dec. 3, 1938.

Opinion Feb. 16, 1939.

The petitioner in this proceeding appeals to the superintending jurisdiction of this Court and demands that the circuit court for Dane County be prohibited from further proceeding upon the ground that the matter is one affecting the sovereign rights of the state of Wisconsin and that this Court has sole and exclusive jurisdiction for the issuance of the writ sought in the circuit court because of the prerogative character of the writ.

Supplemental Statement.

Petition of Julius P. Heil for leave to commence an action of prohibition in this court to restrain the circuit court for Dane county from further proceedings in an action in said circuit court entitled State of Wisconsin on the relation of Philip F. La Follette, E. Merwyn Rowlands, and Ernest J. Hoesly, constituting the Emergency Board of the state of Wisconsin, plaintiffs, against Theodore Dammann, as Secretary of State of the state of Wisconsin, and Solomon Levitan, as State Treasurer of the state of Wisconsin, defendants, praying for a writ of mandamus requiring them to disburse certain moneys out of the general funds of the state of Wisconsin. The petition alleges that the appropriation upon which the duty of disbursement is claimed to be based was not made in accordance with the constitution and laws of the state. The petition further alleges that the subject matter of the action is publici juris, and concerns the sovereign rights of the state of Wisconsin in that the action seeks to compel state officers to perform official acts contrary to law materially affecting the interests of the people at large. It is further alleged that the circuit court is without jurisdiction for the reason that the action is publici juris, involves the sovereign rights of the people and the use of the writ of mandamus for prerogative purposes; and that these are purposes for which such writ cannot be employed in the circuit court for the reason that the supreme court has sole and exclusive jurisdiction for the exercise of said writ for such prerogative purposes.Miller, Mack & Fairchild and J. G. Hardgrove, all of Milwaukee, for plaintiff.

Harold E. Stafford, of Chippewa Falls, Orland S. Loomis, Atty. Gen., and L. E. Vaudreuil, Deputy Atty. Gen., for defendant.

PER CURIAM.

It is considered that this Court cannot entertain this action for two reasons:

[1][2] (1) Petitioner is not a party to the action in the circuit court and it is a well established rule that superintending control will be exercised only at the behest of a party to a proceeding in an inferior court and then for his protection to avoid expense, hardship or miscarriage of justice great enough to constitute a situation of exigency.

[3] (2) The claim by petitioner that the subject matter of the action so concerns the sovereign rights of the state of Wisconsin that this Court has sole and exclusive jurisdiction for the issuance of this writ for prerogative purposes cannot be sustained.

[4][5] It is considered that this Court has the power not merely to exercise its original jurisdiction in cases proper for the exercise of that jurisdiction but in a proper case to exclude inferior courts from any interference with this exercise. The power of this court is a power to exclude inferior courts from exercising jurisdiction in cases which are of such great importance to the people of the state as to warrant such action by this Court, but this power is only exercised as an incident to the exercise of the original jurisdiction of this Court by prerogative writs as distinguished from the superintending control of this Court over inferior courts. In this case no application for the exercise of such original jurisdiction by this Court has been made.

Due to the exigencies of this case this memorandum decision is filed. Opinion will be filed later.

The order staying further proceedings in the circuit court is vacated.

Opinion.

WICKHEM, Justice.

At the outset it should be pointed out that the petition in this case seeks to invoke the superintending or supervisory control by this court over inferior courts. The petition does not ask leave to commence an original action in this court to restrain the state officers in question from making disbursements in accordance with orders of the emergency board. It is sought to have this court intervene in an action at issue in a circuit court involving the same subject matter and to stay the arm of the circuit court upon the ground that it is without jurisdiction. Due to the exigencies of the situation, this court denied the petition and briefly stated its reasons for such denial. In this memorandum the court announced that it would file an opinion making such further exposition of its reasons as was deemed necessary and advisable. This opinion is in response thereto.

[6][7][8] In the memorandum it was stated that the first reason for declining to entertain the action was that petitioner was not a party to the action in the circuit court and that superintending control is exercised only at the behest of a party to a proceeding in an inferior court and then for his protection, to avoid expense, hardship, or miscarriage of justice great enough to constitute a situation of exigency. We find it necessary to make very little modification of this statement. From an examination of the cases in which the superintending control of this court has been exercised it will be found that the court has assumed or stated that the purpose of this jurisdiction is the protection of a person in his rights as litigant. See State ex rel. Hustisford v. Grimm, 208 Wis. 366, 243 N.W. 763. The only two situations which may constitute exceptions are (1) cases where the exercise of the superintending control is necessary to the proper exercise of appellate jurisdiction. Where appellate jurisdiction has attached it is occasionally necessary to invoke the superintending control over inferior courts to insure remission of the record or the taking of other steps essential to the exercise of appellate jurisdiction. Even in such situations the action of the court is generally in response to the petition of one of the parties to the litigation, but the court upon its own motion may undoubtedly protect its jurisdiction by the exercise of superintending control. In this connection, see In re Snyder, 184 Wis. 10, 198 N.W. 616;Jones v. Providence Washington Ins. Co. 151 Wis. 274, 138 N.W. 1005. (2) The court may exercise superintending control as an aid to the exercise of its original jurisdiction when the latter is invoked to protect the sovereignty of the people or in any action under the so-called “prerogative writs.” It is somewhat to be doubted whether this is a real exception to the rule stated for the reason that this court as a part of the exercise of its original jurisdiction may obviously remove all obstacles to its determination whether these are the result of the acts of inferior courts or those of any other official or person. In the case of State ex rel. Zimmermann v. Dammann, Wis., 283 N.W. 52, it was assumed that in so far as this court restrained the circuit court for Dane county from further proceedings in these cases it was acting in the exercise of its superintending control. Original jurisdiction having been assumed, the court may give full relief either under its prerogative powers alone or with the assistance of its superintending control. The writ in either case will be the same, and in view of this, no useful purpose will be served by drawing fine distinctions in the matter. It is plain that the petitioner falls within none of these categories. He is not a party to the litigation with respect to which intervention is desired under the supervisory powers. There is no appeal before this court in aid of which the superintending power might be exercised. There is no application to the court to entertain original jurisdiction apart from superintending control or sufficient facts alleged in the petition to warrant permission to commence an original action.

The foregoing considerations would compel us to deny the petition, but the importance of certain contentions made in the briefs in support of the petition would seem to justify a response in the hope that a contribution can be made to the clarification of the law upon the subject.

[9] It is contended that when it is sought to vindicate the sovereignty of the state by appeal to the judiciary, original jurisdiction to entertain an action for this purpose not only is possessed by this court but is exclusively in this court and possessed by no other tribunal. The following expressions of this court are relied upon to establish this proposition. In Attorney General v. Blossom, 1 Wis. 317, referring to the writs mentioned in section 3 of Article 7 of the Constitution, this court says:

“This class of writs it would seem, appertain to, and are peculiarly, the instruments of the sovereign power, acting through its appropriate department; prerogatives of sovereignty, represented in England by the King, and in this country by the people in their corporate character, or in other words the State; and from their very nature, from their peculiar character, functions and objects, to appertain to, and appropriately belong to the supreme judicial tribunal of the state. Being prerogative writs, they do not pertain to courts of inferior jurisdiction. Whatever jurisdiction such courts may have of them, is a delegated one, and by no means inherent in them as representatives of the sovereignty, acting in its judicial capacity. I have been unable to find a single instance in which inferior courts have exercised jurisdiction over any of the class denominated prerogative writs, unless such jurisdiction has been specially conferred. ***

“And, why was the original jurisdiction given...