State ex rel. La Follette v. Kohler
| Decision Date | 04 February 1930 |
| Citation | 200 Wis. 518,228 N.W. 895 |
| Parties | STATE EX REL. LA FOLLETTE ET AL v. KOHLER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Sheboygan County; James Wickham, Judge.
Action by the State, on the relation of Phillip F. La Follette and others, against Walter J. Kohler. From an order sustaining a demurrer to their petition, petitioners appeal. Reversed and remanded for directions.--[By Editorial Staff.]
Action begun July 8, 1929; order entered September 16, 1929. This is an action brought pursuant to the provisions of sections 12.22, 12.23 and 12.24 of the Wisconsin Statutes of 1927, to determine the validity of an election by virtue of which the respondent claims to hold the office of Governor of the state of Wisconsin. A petition under the statute was filed in the circuit court for Dane county, a change of venue was taken to the circuit court for Sheboygan county and the respondent demurred to the petition. The petition will not be set out at length here for the reason that it is nowhere claimed that if the statute under which the petition is brought is a valid statute a cause of action is not set out in the petition.
In substance the allegations of the petition are as follows:
“1. That the Attorney General of the state, on the petition of the relators charging that the defendant violated certain provisions of this chapter, investigated the subject, authorized the relators to bring this proceeding, and appointed attorneys as special counsel to conduct the proceeding, as provided by statute; and that the relators are electors who had a right to vote at said election.
2. That the defendant during his campaign for the nomination, and to promote his candidacy, violated certain provisions of the statutes, in the following particulars: (a) That he expended more than $4,000.00 and in excess of $80,000.00, in violation of section 12.20; (b) that he expended certain money and property for purposes not authorized by sections 12.06 and 12.07, consisting of $500.00 in cash contributed to the Sheboygan Republican Committee, meals, cigars and refreshments given to certain persons at the defendant's home and to certain persons who had been invited to Kohler, Wisconsin, wages and expenses paid to certain persons who were not public speakers and who personally interviewed voters on defendant's behalf, and expenses for advertising in certain periodicals without complying with the requirements of the statute; (c) that he received contributions in violation of section 12.02 and section 346.12 by employing as his agent the Kohler Company, a Wisconsin corporation, and by accepting from that company the services of a band and other services and expenses incurred by corporation and its servant in his behalf; (d) that in violation of sections 12.02 and 12.20 he delegated to a group of persons, who held themselves out as the Wisconsin State Republican Committee, and which group, in fact, was not a party committee, authority to raise and expend over fifty thousand dollars; (e) that he violated chapter 12, in that over $100,000.00 was spent for political purposes by himself and others with his consent and approval; (f) that he violated section 12.09 in failing to include in his financial statement, filed in the office of the Secretary of State, several of the alleged unlawful contributions and disbursements above referred to, and other contributions and loans which were used with his knowledge and approval.
3. That the defendant, at the primary election on September 4, 1928, received the largest number of votes of any candidate for nomination on the Republican ticket, for the office of Governor, that at the election on November 6, 1928, he received the largest number of votes cast at that election for that office, and that since January 7, 1929, the defendant has been occupying the office of Governor and performing the duties thereof.
4. That because of such violations both his nomination and election are void.
5. That prayer for relief is that the court determine that the defendant did violate the statutes as alleged, that the election be declared void, that the defendant be ousted and excluded from the office and that the office be declared vacant.”
Those parts of the Statutes which are material are printed in the margin. 1
The trial court was of the opinion that the object of the statute was to render a candidate guilty of its violation ineligible to hold the office for the term for which he was elected; that the Constitution prescribes the qualifications of a candidate for Governor and that it was beyond the power of the Legislature to prescribe other conditions of eligibility; that what the statute seeks to do is to provide that misconduct on the part of a candidate shall operate to forfeit his office and that under section 10 of article 13 of the Constitution, which provides, “The Legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this Constitution.” The Legislature had no power to provide grounds for removal of the Governor in addition to those specified in the Constitution; that in so far as section 12.24 provides for the removal of the Governor from office on the ground that he forfeits his right to hold office by violating the statute, the statute is invalid, for the reason that the Constitution vests the power of impeachment in the Legislature, and that power to declare a forfeiture cannot therefore be conferred upon a court. The court filed a learned and able opinion, which has been of great assistance to us in our consideration of this case, and, after reflection the court sustained the demurrer. From the order entered pursuant thereto the petitioners appeal.
In this case we shall set out at this point the outline of argument presented by counsel:
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