State ex rel. La Follette v. Dammann

Citation220 Wis. 17,264 N.W. 627
PartiesSTATE EX REL. LA FOLLETTE v. DAMMANN, SECRETARY OF STATE.
Decision Date07 January 1936
CourtUnited States State Supreme Court of Wisconsin
OPINION TEXT STARTS HERE

Original action for declaratory judgment.

Demurrer sustained.

On October 8, 1935, Philip F. La Follette, as Governor of this state, filed a petition in this court asking leave to institute an original action for declaratory judgment, pursuant to section 269.56, against Theodore Dammann, as secretary of state. The secretary of state moved to dismiss the petition on the grounds (1) that it appears upon the face of the petition that this court has no jurisdiction of the subject of the proposed action; and (2) that it appears upon the face of the petition that the same does not state facts sufficient to constitute a cause of action. The court granted leave to commence the action as prayed. It was thereupon stipulated by and between the parties and their respective attorneys that the petition stand as a complaint and the motion to dismiss as a demurrer. Thereafter briefs were submitted by the parties as well as by amici curiæ and the matter fully argued.

It is in substance alleged in the complaint (petition) that the plaintiff is the Governor of this state; that the defendant is the secretary of state; that a number of vacancies exist in the membership of certain state boards and commissions, two of which vacancies were caused by death, one by resignation, and a considerable number by expiration of terms of office; that the terms of one or more members of several boards and commissions will expire during the year 1936 before the next regular meeting of the Legislature; that it is the purpose of the plaintiff promptly to fill such vacancies in office by appointments or reappointments for the unexpired terms thereof; that the power of the plaintiff to make such appointments has been questioned by the defendant, who has advised the plaintiff that he, as secretary of state, will not honor the commissions which the plaintiff is about to issue, and that he will refuse to audit and pay the salaries and expense accounts of any such appointees; that, in view of the adverse rulings of the defendant, the plaintiff will be unable to secure suitable persons to fill such vacancies because prospective appointees under the circumstances will not be willing to give up their present offices or employments; that under the provisions of section 14.22, Stats., the plaintiff is authorized to make such appointments, and, under the provisions of section 17.20, subsec. (2) (b), Stats., the plaintiff is authorized to fill vacancies in any office during the recess of the Legislature. The plaintiff prays that a declaratory judgment be rendered on each of the following questions:

(a) May the Governor now make valid appointments or reappointments to the state offices and memberships in boards and commissions referred to in paragraph 4 of this petition where the term of office has expired and the incumbent holding over is still performing the duties of the office?

(b) May the Governor now make valid appointments to fill the vacancies now occurring in the state offices and memberships in boards and commissions mentioned in paragraph 3 of this petition in cases where the last incumbent has died or resigned and a vacancy has thus occurred and still exists?

(c) May the Governor now make valid appointments to fill any vacancies referred to in this petition which first arose before the 1935 legislature was in session but which vacancies were not filled by appointment and confirmation during the 1935 session of the legislature?

(d) May the Governor now make valid appointments to fill any such vacancies which arose during the year 1935 legislative session but which vacancies were not filled by appointment and confirmed during the 1935 session of the legislature?

(e) May the Governor make appointments to fill any such vacancies which will arise during the year 1936, at a time when the Legislature will not be in regular session?”

James E. Finnegan, Atty. Gen., Herbert H. Naujoks, Asst. Atty. Gen., and Harold M. Wilkie, Special Counsel, of Madison, for plaintiff.

William H. Spohn, of Madison, for defendant.

Harold V. Schoenecker, and Charles H. Phillips, both of Milwaukee, Maurice P. Coakley, of Beloit, and Walter A. Williams, of Waukesha, amici curiæ.

NELSON, Justice.

[1] The principal question to be determined is whether the complaint states a cause of action. Upon a general demurrer the allegations of the complaint, which are not mere conclusions of law, must be considered as true. State ex rel. Duesing v. Lechner, 187 Wis. 405, 204 N.W. 478;Fulton v. First Volunteer Co. of Oconto, 204 Wis. 355, 236 N.W. 120;Gumz v. United States F. & G. Co., 209 Wis. 408, 245 N.W. 82;United Artists Corp. v. Odeon Building, Inc., 212 Wis. 150, 248 N.W. 784.

Whether the complaint states a cause of action for declaratory relief under section 269.56, Stats. (Uniform Declaratory Judgments Act) must be determined by the provisions of that act as construed by this court and the courts of other states.

The Uniform Declaratory Judgments Act is comparatively new in American jurisprudence. It was first adopted by the states of Tennessee and Wyoming, effective February 21, 1923. See Uniform Laws Annotated, vol. 9, p. 120. It was adopted in this state in 1927. Chapter 212, Laws 1927. By its very terms it is “declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.” Section 269.56 (12) Stats. It is to be “so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.” Section 269.56 (15).

The act provides a remedy which did not exist prior to its enactment except in a limited number of cases, i. e., equitable cases in which the removal of clouds from title was sought, cases in which a declaration as to the nullity of void contracts of marriage was asked, actions of interpleader, etc., Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 263, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191, in all of which cases a judicial declaration of the preexisting rights of the parties was sought. Judicial relief may now be obtained in many situations which involve the vindication of assailed or challenged rights, the clarification and stabilization of unsettled legal problems, the...

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    ...26.Frye, 253 Wis. at 601, 34 N.W.2d 793. 27.Frye, 253 Wis. At 605 (Fairchild, J., dissenting). 28.See State ex rel. La Follette v. Dammann, 220 Wis. 17, 22, 264 N.W. 627 (1936). 1. Majority op., ¶ 8. 2. American Family brief, p. 1. 3. Majority op., ¶ 74. 4.Id., ¶ 5. 5. Complaint, ¶ 2; Zuric......
  • McLeod v. Mudlaff (In re Estate of Laubenheimer)
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    ...be ripe for judicial determination.Loy v. Bunderson, 107 Wis.2d 400, 409, 320 N.W.2d 175 (1982) (quoting State ex. rel. La Follette v. Dammann, 220 Wis. 17, 22, 264 N.W. 627 (1936) (internal quotation marks omitted)). An action under the UDJA can be brought either directly or collaterally, ......
  • State ex rel. Maloney v. Sierra
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    • November 23, 1970
    ...the trial court specifically found that it was in the public interest to settle the controversy. State ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N.W. 627, 103 A.L.R. 1089 (1936), appears to be to the contrary and we decline to follow it as too narrow and unrealistic. There the Govern......
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