State ex rel. Lamb v. Cunningham

• Decision Date: 07 October 1892
• Citation: 83 Wis. 90,53 N.W. 35
• Parties: STATE EX REL. LAMB v. CUNNINGHAM, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

83 Wis. 90

53 N.W. 35

STATE EX REL. LAMB

v.CUNNINGHAM, SECRETARY OF STATE.

Supreme Court of Wisconsin.

Oct. 7, 1892.

Original application in the name of the state, on the relation of Charles F. Lamb, for a writ to enjoin Thomas J. Cunningham, secretary of state, from publishing notices of election of members of the senate and assembly, under the apportionment act of July 2, 1892, on the ground that the act is unconstitutional. Writ granted.

The other facts fully appear in the following statement by CASSODAY, J.:

This action was commenced in this court for the purpose of perpetually enjoining and restraining the defendant, as secretary of state, and his successors in office, from publishing and continuing to publish a copy of the notices of election of members of the senate and assembly in a newspaper printed at Madison, once in each week from the date of such notice until the general election, describing the several legislative districts in such notice, the same as attempted to be created by the act of July 2, 1892, and also from filing and preserving in his office certificates of nomination and nomination papers, and from certifying to the several county clerks in the state the names and descriptions of the persons nominated for such legislative offices, as specified in such certificates of nomination, and for other relief.

The complaint, in effect, alleges the census of 1890 in the state and the several counties, towns, and wards in the state, and in the several senate and assembly districts so attempted to be created by said act of July 2, 1892, as will more particularly appear from Exhibits A and B, showing such senate and assembly districts and the population, annexed; and also alleging that the assembly unit under said census was 16,868, and for the senate district 51,117; and alleging the several provisions of said act, wherein it is claimed that the same were in violation of the constitution of this state,¹ and particularly as to the 9th, 10th, 12th, 14th, 17th, 20th, 27th, 29th, and 31st senate districts; and also alleging, in effect, that more than one half of the assembly districts of the state, as formed by said act, had been so formed in disregard and in gross violation of the constitutional requirements; and alleging facts particularly as to the following assembly districts: The one composed of Florence, Forest, and Oneida counties, containing only 8,626 inhabitants; the one composed of Langlade county, with only a population of 9,465; the one composed of Price and Taylor counties, with a population of only 11,989; the one composed of the city of Janesville, with a population of only 10,836, while other counties therein alleged contain very much more than the unit of poulation. That it is also alleged therein that in several of the counties of the state entitled to more than one member of assembly the said act attempts to create the assembly districts therein without regard to substantial equality of representation in proportion to population as between said districts, and so that they do not consist of contiguous territory, and are not in as compact form as practicable, where conformity to the constitutional requirement in that behalf would also secure said equality of representation as between said districts; and particularly points out such discrepancies in respect to the counties of Columbia, Brown, Grant, Rock, Racine, Walworth, Waupaca, Eau Claire, Chippewa, La Crosse, Waukesha, Sheboygan, Outagamie, Dane, Winnebgo, Marathon, and Fond du Lac. That Vernon, with a population of 25,111, was entitled to two members.

It appears from the record that August 1, 1892, the said relator, as a citizen of Dane county, applied to the attorney general of the state to move in this court for leave to bring an action in the name of the state against the said secretary to enjoin him from carrying into execution the said act of July 2, 1892, on the ground of the unconstitutionality of the same, and at the same time presented to him a petition setting forth substantially the facts so alleged in said complaint. That August 5, 1892, the said relator served upon the attorney general a proposed complaint in such action, alleging substantially the matters contained in the complaint herein, and requesting him to commence the same. That August 9, 1892, and on notice to the attorney general, the said relator applied to this court for leave to commence and prosecute such action. That thereupon the attorney general appeared in this court, and made a statement respecting the same, and, among other things, said, in effect, that he had not, and did not then, refuse to bring said action, nor refuse to ask leave to bring it; and asked further time to investigate the questions involved in said petition, so as to enable him intelligently to determine what course he should pursue; and that he was forced to ask for such further time by reason of the excessive duties of his office, and circumstances over which he could have no control. That thereupon the court ordered, in effect, that unless the attorney general commenced such action before August 19, 1892, leave to commence which was thereby granted, the said petitioner and relator herein had leave to commence and prosecute the same in this court in the name of the attorney general, on giving bond to the state in the sum of $500, to be approved by a justice of this court, to indemnify the state against the costs of the action; and further ordered that in either case the secretary of state may answer to the complaint within 20 days after the same should be so served upon him. That August 18, 1892, the said attorney general filed in this court a paper to the effect that he deemed it his duty to decline to commence said suit in this court to test the validity of the said act of July 2, 1892, upon the relation of said petitioner or otherwise, and therein expressly refused his “consent to have such suit brought or conducted in the name of his office as attorney general.” That thereupon, and on August 19, 1892, the said relator filed the bond, duly approved by a justice of this court, as required by the order mentioned, and served the summons and said complaint in this action upon the defendant. That September 8, 1892, the defendant, by his attorney, demurred to the complaint, on the ground that it appeared upon the face thereof (1) “that the court has no jurisdiction of the subject of the action; (2) that the plaintiff has not legal capacity to sue, in this: that the said relator has not the right to sue in the name of the state upon the alleged cause of action; (3) that there is a defect of parties, in that the attorney general of the state of Wisconsin is the officer required by law to prosecute the action aforesaid, and no cause of action is shown to exist in favor of the said relator.” That on the same day the attorney general, for the defendant, served upon the attorney for the relator a notice to the effect: “Please take notice that on Tuesday, the 20th day of September, inst., at the opening of the court on that day, or as soon thereafter as counsel can be heard, the above-named defendant, by the undersigned, his attorney, will move the said supreme court, at the supreme court room in the capitol at Madison, for an order vacating and setting aside the order of said court granted ex parte on August 9, 1892, giving leave to the said relator to commence and prosecute this action,--reference being had thereto forits terms,--and dismissing this action, and for such other or further order as may be proper; and also to vacate and set aside said order of August 9, 1892, giving the relator leave to commence and prosecute this action, and to dismiss the same.” That thereupon, and on September 8, 1892, the plaintiff served notice upon the attorney for the defendant to the effect that said relator would apply to this court on September 13, 1892, at the opening of the court on that day, or as soon thereafter as counsel could be heard, for an order striking out as frivolous the said demurrer of the defendant herein, and directing judgment in favor of the plaintiff, as prayed for in said complaint. That thereupon, and on September 9, 1892, the court set down said motions, respectively, and said demurrer, for full argument and consideration on the merits, for September 20, 1892, and the same were thereupon argued accordingly. That September 27, 1892, the court entered the following order and directions in said cause, to wit: “By the Court: The court holds that the order granting leave to the relator to bring this action on behalf of the state was properly made, and the court has jurisdiction of the action in its present form; hence the motion on behalf of defendant to vacate the same, and dismiss the action, must be denied. The court further holds that the complaint states facts sufficient to entitle the state to the relief demanded therein; hence the motion on behalf of the state to strike out the demurrer to the complaint as frivolous, and for judgment, must be granted. Such determination of these motions in effect overrules the demurrer to the complaint. An opinion will be prepared and filed at an early day. If the defendant desires leave to interpose an answer to the complaint the court will hear a motion for such leave on the next motion day.” That September 30, 1892, the defendant's attorney presented to the court a proposed answer to said complaint. That upon considering the same, and on October 1, 1892, the court denied the motion to interpose such answer, and thereupon judgment was directed and entered according to the prayer of the complaint.

The following are Exhibits A and B, mentioned and referred to in the said complaint:

+-----------+
                ¦EXHIBIT A. ¦
                +-----------¦
                ¦           ¦
                +-----------+
                

+-----------------------------------------------------------------------------+
                ¦SENATE DISTRICTS, WITH POPULATION, AS CREATED BY CHAPTER 1, EXTRA SESSION OF ¦
                ¦1892.

...