State ex rel. Frederick v. Zimmerman

• Citation: 254 Wis. 600,37 N.W.2d 473
• Parties: STATE ex rel. FREDERICK v. ZIMMERMAN et al.
• Decision Date: 26 April 1949
• Court: United States State Supreme Court of Wisconsin

254 Wis. 600

37 N.W.2d 473

STATE ex rel. FREDERICK

v.ZIMMERMAN et al.

Supreme Court of Wisconsin.

April 26, 1949.

This is an original action begun in this court on April 8, 1949, by the filing of a petition by Carl C. Frederick, a taxpayer, asking the court to take jurisdiction and for leave to commence an action challenging the validity of ch. 15, Laws of 1949, against the defendants Fred R. Zimmerman, Secretary of State, Edward J. Gehl, Elmer D. Goodland, candidates for justice of the supreme court, George E. Watson and Quincy V. Doudna, candidates for the office of state superintendent of public instruction. Petitioner was granted an order to show cause before the court at 10 o'clock a. m. April 12, 1949, why the petitioner should not be allowed to maintain such action.

On April 12, 1949, pursuant to the order to show cause the relator appeared by Messrs, Callahan & Arnold, and Daniel H. Grady, his counsel; Cannon & Meister, by Milton L. Meister appeared for respondent Edward J. Gehl; Walter H. Bender appeared for the respondent George E. Watson; Alfred E. La France, L. P. Baumblatt, Harold A. Konnak and Vilas H. Whaley, appeared for respondent Elmer D. Goodland; Thomas E. Fairchild, Attorney General, and Stewart G. Honeck, Deputy Attorney General, appeared for the respondent Fred R. Zimmerman; Fisher, Reinholdt & Peickert appeared for the respondent Quincy V. Doudna; briefs amicus curiae were filed by Walter D. Corrigan, Sr., and by Lines, Spooner & Quarles, Louis Quarles, Leo Mann of counsel.

The court announced that it had examined the petition filed and that it was of the opinion that it involved a matter publici juris involving the interests of the state and the people at large; that an extraordinary exigency was involved, and for those reasons the court would take jurisdiction. Counsel for the respective parties thereupon stipulated that the petition for leave to commence the action should stand as the complaint in the action. Issue was joined by the defendants demurring to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

The matter, by stipulation of parties, was set down for hearing at 9 o'clock a. m. April 16, 1949.

The matter was heard at the time designated. Daniel H. Grady and Carroll B. Callahan argued orally for the petitioner; Milton L. Meister presented oral argument for the defendant Gehl; Alfred E. La France presented oral argument in behalf of defendant Goodland; Walter H. Bender presented oral argument in behalf of defendant Watson; R. T. Reinholdt presented oral argument for the defendant Doudna; Thomas E. Fairchild, Attorney General, and Stewart G. Honeck, Deputy Attorney General, presented oral arguments for the defendant Zimmerman.At the close of the oral arguments and upon the submission of the case by counsel the court announced that it would take the matter under advisement. On Monday April 18, 1949, at 12 noon, 37 N.W.2d 472,the court announced that because of the extreme exigency of the situation the court filed the following mandate, a formal opinion to be filed thereafter:

‘By the Court: It is adjudged and held that chapter 15 of the Laws of 1949 is a valid, constitutional enactment. It is further ordered and adjudged that the complaint of the relator be and the same is hereby dismissed.’

The facts will be stated in the opinion which follows:

Callahan & Arnold, of Columbus, and Daniel H. Grady, of Portgage, for plaintiff.

Cannon & Meister and Milton L. Meister, all of West Bend, for defendant Gehl.

Walter H. Bender, of Milwaukee, for defendant Watson.

Alfred E. La France, L. P. Baumblatt, Harold A. Konnak, and Vilas H. Whaley, all of Racine, for defendant Goodland.

Thomas E. Fairchild, Atty. Gen. and Stewart G. Honeck, Deputy Atty. Gen., for Zimmerman.

Fisher, Reinholdt & Peickert, of Stevens Point, for Doudna.

Walter D. Corrigan, Sr. and Lines, Spooner & Quarles, all of Milwaukee (Louis Quarles and Leo Mann, both of Milwaukee, of counsel), amicus curiae.

ROSENBERRY, Chief Justice.

Due to the expiration of the term of the incumbent, under the provisions of the constitution and the statute, an election was to be held on the first Tuesday of April 1949 for the office of justice of the supreme court. Early in the year it became apparent that there would be an unprecedented number of candidates for that office, as well as for the office of state superintendent of public instruction. (By the provisions of sec. 1, art. X of the constitution ‘the state superintendent shall be chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme court.’)

Anticipations respecting the number of candidates were fully realized. Within the time prescribed twelve candidates filed nomination papers as candidates for the office of justice of the supreme court and ten candidates filed nomination papers as candidates for the office of state superintendent of public instruction. It was obvious to the legislature that as matters stood the consequence would be an election to an important office by a small minority and that some legislation should be passed to prevent such an undesirable result. The April 5th primary established the correctness of the legislative appraisal. On that day the highest number of votes received by any nominee was twenty per cent of the total. Steps were taken to enact the necessary legislation and on January 21, 1949, a bill to amend the election laws in certain specified instances was introduced in the senate by Senator Knowles, and was reported by the judiciary committee for passage on February 3rd, and after the customary parliamentary maneuvering, was passed by the senate on February 16th. It was received in the assembly the following day and on March 4th it was concurred in by the assembly. It was reported enrolled on March 15th, was approved by the governor on that day and published on March 17th as ch. 15 of the Laws of 1949.

The material portions of ch. 15 are printed in the margin.¹

Stated briefly, it changed the April 5 election so far as justices of the supreme court and the state superintendent of public instruction were concerned from an election to a primary if more than two candidates should file for these offices respectively. In the event that no candidate should receive more than 50 per cent of the votes it provided that the regular election should be held on the first Tuesday of May, which is May 3 in the year 1949, and that the person receiving the highest number of legal votes cast at such May election for such office should be deemed duly elected thereto.

It is the contention of the relator that ch. 15 is unconstitutional and void under the provisions of sec. 4 of art. VII of the constitution on the following grounds:

First: It provides an election process contrary to that provided by said article and section of the constitution of the state.

Second: It is unconstitutional for the reason that it treats a general election so provided by said constitutional provision as a nomination only and requires a second election subsequent to said general election held on April 5th, pursuant to the provision of said constitution as providing for such election being ‘as now provided.’

Third: It is unconstitutional because it changes the date fixed by said provision of the constitution adopting the statute of the state as then provided for the holding of such election on the first Tuesday of April of each year.

Fourth: It is unconstitutional in that it violates the right of the citizen who has signed the nomination papers for the offices of justice of the supreme court and state superintendent of public instruction filed before the Act was passed, published, or became effective.

The relator further contends that ch. 15 being void, the holding of an election on May 3, 1949, would impose an unjust burden upon him and all taxpayers similarly situated.

Fifth and sixth reasons assigned are argumentative and the contentions of counsel are fully covered by the four contentions set out.

A decision of the questions raised requires us to consider the history of sec. 4 of art. VII of our state constitution. The original sec. 4 is to be found in the constitution ratified in the month of March 1848. The part material in this controversy is as follows: ‘The Legislature shall have power, if they should think it expedient and necessary, to provide by law, for the organization of a separate Supreme court, with the jurisdiction and powers prescribed in this Constitution, to consist of one chief justice, and two associate justices, to be elected by the qualified electors of the State, at such time and in such manner as the Legislature may provide. * * *’

The words ‘to be elected by the qualified electors of the State’ appear in other sections of the constitution of 1848. Notably in sec. 4 of art. IV, relating to the election of members of the legislature; sec. 3 of art. V, relating to the election of governor and lieutenant governor; sec. 1 of art. VI, relating to the election of the other constitutional officers not referred to above. Circuit judges were also to be elected by the ‘qualified electors' of the circuit. Laws of 1848, p. 19.

In 1872 an amendment to the constitution was submitted, amending sec. 4, which was rejected by the people at the November 1872 election. This proposed amendment contained the provision ‘to be elected by the qualified electors of the state at such times and in such manner as the legislature may provide.’

At the November 1877 election sec. 4 of art. VII was amended to read as follows: ‘The supreme court shall consist of one chief justice and four associate justices to be elected by the qualified electors of the State. The Legislature shall, at its first session after the adoption of this amendment, provide by law for the election of two associate justices of said court, to hold their offices for terms ending two and four years respectively,...