State ex rel. Attorney Gen. v. Cunningham

• Decision Date: 22 March 1892
• Citation: 51 N.W. 724,81 Wis. 440
• Parties: STATE EX REL. ATTORNEY GENERAL v. CUNNINGHAM, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

81 Wis. 440

51 N.W. 724

STATE EX REL. ATTORNEY GENERAL

v.CUNNINGHAM, SECRETARY OF STATE.

Supreme Court of Wisconsin.

March 22, 1892.

Bill in chancery, on the relation of the attorney general on behalf of the state, to enjoin Thomas J. Cunningham, secretary of state, from giving notices of the election of members of the senate and assembly, under the apportionment act of 1891, (Laws 1891, c. 482,) on the ground that said act is unconstitutional and void. Defendant interposed a demurrer. Demurrer overruled.J. C. Spooner, G. W. Bird, C. E. Estabrook, and J. L. O'Connor, Atty. Gen., for plaintiff.

E. S. Bragg, for defendant.

ORTON, J.

This case comes into this court, within its original jurisdiction, by bill in chancery, on the relation of the attorney general on behalf of the state, praying for an injunction against Thomas J. Cunningham, secretary of state, to restrain him as such officer from carrying into execution chapter 482, Laws 1891, commonly called the “Apportionment Act,” on the ground of its unconstitutionality; and more particularly that he refrain from giving the notices of the election of members of the senate and assembly as apportioned and districted by said act. The complaint informs the court, in substance, that the legislature of 1891, in attempting by said act to apportion and district anew the members of the senate and assembly, according to the enumeration of the population of the state by the United States census of 1890, did so in violation of the restrictions contained in sections 3-5, art. 4, of the constitution of this state, in the following particulars, viz.: First, the senate and assembly districts were not made “according to the number of inhabitants, excluding Indians not taxed, and soldiers and officers of the United States army and navy;” second, the assembly districts were not “bounded by county lines;” third, they were not made “to consist of contiguous territory;” fourth, they were not made “in as compact form as practicable;” fifth, the senate districts were not made “of convenient and contiguous territory.” The complaint more particularly shows that by the last census the state contained a population of 1,686,880, and by an equal apportionment of the inhabitants each senate district should have contained 51,117, and each assembly district 16,868, inhabitants, as near as may be.

By said apportionment many senate districts contain the number of inhabitants, omitting fractions of a thousand, as follows: Second district, 38,000; fifth district, 68,000; seventh district, 65,000; eighth district, 43,000; eleventh district, 42,000; fourteenth district, 45,000; sixteenth district, 57,000, seventeenth district, 61,000; eighteenth district, 44,000; twentieth district, 42,000; twenty-second district, 37,000; twenty-fourth district, 58,000; twenty-seventh district, 68,000; thirty-second district, 38,000; thirty-third district, 63,000. Many assembly districts contain the number of inhabitants as follows: 38,000, 6,000, 25,000, 7,000, 24,000, 11,000, 22,000, 11,000, 23,000, 10,000, 22,000, 11,000, 21,000, 10,000, 20,000, 11,000, 20,000, 11,000. The highest difference between both the senate and assembly districts is over 30,000.

The case was heard on demurrer to the complaint, (admitting the facts,) based on the grounds to the effect-- First, that the court has no jurisdiction of the subject-matter; and, second, that the complaint fails to show any violation of the constitution. These two general questions, as well as others subordinate thereto, were very ably argued by eminent counsel on both sides; and their arguments and the authorities cited by them have rendered the court very great aid in the elucidation and decision of the case. As a preliminary question, it has already been decided that this case could not be brought by a private relator, because no one has any private interest in the subject-matter. The matters being exclusively publici juris, the case must be brought by the attorney general on his own relation, representing the whole state and the people thereof. This is the form and title in which the case now stands in this court, and in which it must be sustained, if at all. That being the most difficult and important question, we shall enter at once upon the consideration of the original jurisdiction of this court, to issue the injunction to restrain the secretary of state from executing the said act, which is the first ground of the demurrer. In almost every case which has been brought in this court, within its original jurisdiction, on the relation of the attorney general in the name of the state, the jurisdiction of this court has been challenged and discussed by able counsel, and sustained by the court in many learned and elaborate opinions. The subject-matter of these cases was claimed and held to be publici juris, and involved the original jurisdiction of the court to issue the various writs of habeas corpus, mandamus, injunction, quo warranto, and certiorari. It would seem, therefore, that the jurisdiction of the court and its limitations in nearly all matters of great public interest and concern had been already judicially determined. The highest authorities that can be consulted on the question of the court's jurisdiction in this case are these various decisions of the court. The precise subject-matter of this case was notin any of these cases, but the analogies are sufficiently close to make them of the highest authority in this case, and some of them are clearly in point. We start upon this discussion with the benefit of these decisions, which renders the question far less difficult.

One of the first cases of this kind brought in this court was Attorney General v. Blossom, in quo warranto, 1 Wis. 317, in which the court said: “Controversies might arise wherein the prerogatives and franchises of the state in its sovereign character might require the interposition of the highest judicial tribunal to preserve them. Other departments might need its intervention. Indeed, various emergencies may have been conceived in which this branch of the government, and this arm of the judiciary alone, might be adequate to preserve the balance of powers, to arrest usurped powers, franchises, and prerogatives; to quell resistance to constitutional authority, to preserve the liberty of the individual citizen and shield the sovereignty of the state itself from violation.” These broad grounds of the court's original jurisdiction in matters publici juris would seem to embrace every possible matter of great public interest. We shall hereafter inquire whether the subject-matter of this case comes within these terms of the court's jurisdiction. We shall finally hold that this court has jurisdiction in this case, and we propose to remove all possible doubt on the subject, even at the expense of being somewhat tedious. In the above case it is held also that this court has original jurisdiction in all of the above writs, including injunction. In Attorney General v. Railroad Co., 35 Wis. 512, the writ of injunction was ordered to issue as a prerogative writ, as in a case publici juris, to restrain the railroad companies from exacting tolls for the carriage of passengers or freight in excess of the legal rates.

The jurisdiction of the court was sustained by an opinion of the learned and eminent Chief Justice RYAN, the ablest and most elaborate and clearest to be found in the Reports. This case was followed by Attorney General v. City of Eau Claire, 37 Wis. 400, for an injunction against the common council and city clerk, restraining them from executing an unconstitutional law for the obstruction of a navigable river. The whole subject of the original jurisdiction of this court was again most fully considered by the court in an opinion by the same learned chief justice. The following extract from that opinion clearly expresses the jurisdiction of the court, and its limitations in all cases where the subject-matter is publici juris: “To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote; peculiar, perhaps, to some subdivisions of the state, but affecting the state at large in some of its prerogatives; raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character, this court judging of the contingency in each case for itself.” The earliest case involving matters publici juris, brought in this court on the relation alone of the attorney general, is State v. Merrill, 2 Pin. 279, to compel the respondent by mandamus, as the receiver of the canal land-office under the territory, to deliver the books and papers and pay the money in his hands as such receiver to the new state as the successor of the territory. In this case the original jurisdiction of the court was questioned, and sought to be sustained by an act of the legislature. But Chief Justice WHITON said in his opinion: “We are satisfied, without the act this court has jurisdiction of the case.” In State v. Messmore, in quo warranto, 14 Wis. 125, this court held jurisdiction of the case, on the following grounds, stated by the late and able Chief Justice DIXON: “It is instituted and conducted by the attorney general under his official oath and responsibility. This case involves the functions of a high judicial office, and the due administration of justice in a large section of the state.”

In State v. Railway Co., in quo warranto, 45 Wis. 579, to compel said company to keep its offices, books, papers, and records within this state, the jurisdiction of the court was again questioned. It is said in the opinion: “Questions of very great public interest, involving the sovereignty and jurisdiction of the state over the corporation of its own creation, charged with gross abuse and misuse of its powers and franchises, are presented in this information.” In State...