State ex rel. Martin v. Ekern

• Decision Date: 21 June 1938
• Citation: State ex rel. Martin v. Ekern, 228 Wis. 645, 280 N.W. 393 (Wis. 1938)
• Parties: STATE ex rel. MARTIN v. EKERN.
• Court: Wisconsin Supreme Court

228 Wis. 645

280 N.W. 393

STATE ex rel. MARTIN

v.EKERN.

Supreme Court of Wisconsin.

June 21, 1938.

Original action.Petition for leave to bring quo warranto proceedings in this court.

Petition granted.

Demurrer to the petition, considered as a complaint, is sustained.

On May 19, 1938, James W. Martin of Ozaukee county, pursuant to the procedural rules laid down in In re Exercise of Original Jurisdiction of Supreme Court, 201 Wis. 123, 229 N.W. 643, petitioned this court for leave to bring, in the name of the state of Wisconsin, an original action of quo warranto, for the purpose of having determined by what authority Herman L. Ekern holds the office of lieutenant governor of this state, and if it be found that he holds that office without lawful authority, to oust and exclude him therefrom.Upon the filing of the petition an order was made by Mr. Chief Justice ROSENBERRY requiring Mr. Ekern to show cause why the petitioner should not be given leave to bring, in the name of the state, an original action in this court.Pursuant to that order, the petition was heard on May 31, 1938.The question whether leave to commence the action should be granted was argued by the attorneys for the petitioner and for Mr. Ekern.The court thereupon took a recess and conferred on the question of granting the prayer of the petition.After a brief conference, the court was of the view that the question presented required studious and painstaking consideration.Upon reconvening, the court stated that it would take the matter under advisement.It was then suggested, that if the petitioner and the respondent would stipulate, that in the event the court granted leave to commence the action, the petition should be considered as a complaint, to which the respondent demurred, the court would then hear arguments on the merits.The parties so stipulated and the merits were argued.

The petition in substance alleges: That the petitioner is a citizen, resident, taxpayer and elector of Ozaukee county; that prior to the making of his petition he demanded in writing of Orland S. Loomis, the attorney general of this state, that he bring the action in the name of the state, but that the attorney general refused so to do, and therefore the petitioner asks leave to bring the action as a private person in the name of the state; that on November 3, 1936, Philip F. LaFollette, was elected governor of the state of Wisconsin and Henry A. Gunderson was elected lieutenant governor thereof; that Philip F. LaFollette took the oath of office as governor on January 4,1937, and ever since has been the governor of this state; that on the same day Henry A. Gunderson took the oath as lieutenant governor and continued to act as such officer until October 18, 1937, when he resigned; that by reason of the resignation of Henry A. Gunderson as lieutenant governor, a vacancy occurred in that office, without the right, authority or warrant in law to have the same filled by appointment; that on May 16, 1938, Philip F. LaFollette, as governor of this state, appointed Herman L. Ekern to the office of lieutenant governor of this state; that Mr. Ekern accepted said appointment and on May 17, 1938, took the oath of office, assumed the duties thereof and ever since then has held the office and exercised the duties thereof; that the act of Philip F. LaFollette in appointing Herman L. Ekern to the office of lieutenant governor, was without warrant in law and therefore a clear usurpation and abuse of power; and that Mr. Ekern, in taking said office and in acting as lieutenant governor usurped and intruded into said office without warrant in law.The petition, considered as a complaint, demands judgment that the appointment of Herman L. Ekern to the office of lieutenant governor be declared void; that he be adjudged guilty of usurping and intruding into and unlawfully holding said office; that he be ousted and excluded therefrom and that the office of lieutenant governor be declared vacant.

Rubin, Zabel & Ruppa, of Milwaukee (Wm. B. Rubin and W. C. Zabel, both of Milwaukee, of counsel), for petitioner.

Orland S. Loomis, Atty. Gen., and Ralph M. Hoyt, Sp. Counsel, and Walter D. Corrigan, Sr., Sp. Counsel, both of Milwaukee, for defendant.

NELSON, Justice.

The first question for determination is whether this court should grant leave to the petitioner to bring an original action in the name of the state of Wisconsin.Such leave is asked because the attorney general has refused to bring the action.The question which the petitioner seeks to have determined is most important and of great public concern and interest.Obviously the people of this state are vitally interested in seeing that no important office, such as that of lieutenant governor, be intruded into by any person who has not lawful authority to hold the office or to perform the duties thereof.

[1][2][3] The office of governor is one of high dignity in which the people have a paramount interest, Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567.The office of lieutenant governor is likewise of great importance because upon the incumbent thereof may at any time devolve the powers and duties of the governor.Sec. 7, art. 5, Const.That the question sought to be determined is publici juris and is one which relates to “the sovereignty of the state, its franchises or prerogatives, or the liberties of its people,” cannot be gainsaid.Attorney General v. Railroad Cos., 35 Wis. 425;Attorney General v. Eau Claire, 37 Wis. 400;In re Income Tax Cases, 148 Wis. 456, 134 N.W. 673, 135 N.W. 164;In re Exercise of Original Jurisdiction of Supreme Court, supra.

[4] Assuming for the moment that under the circumstances alleged, the petitioner is a proper person to bring the action in the name of the state, we think it clear, that under the rules stated in the four cases just cited, the petitioner properly invokes the original jurisdiction of this court.In a very early case the question: Why was original jurisdiction of these high prerogative writs given to the supreme court? was propounded and answered thus:

“Because these are the very armor of sovereignty.Because they are designed for the very purpose of protecting the sovereignty and its ordained officers from invasion or intrusion, and also to nerve its arm to protect its citizens in their liberties, and to guard its prerogatives and franchises against usurpation.The convention might well apprehend that it would never do to dissipate and scatter these elements of the State sovereignty among five, ten, twenty or forty inferior tribunals, and wait their tardy progress through them to the supreme tribunal, upon whose decision must finally depend their efficacy!”Attorney General v. Blossom, 1 Wis. 277(*317)at page 287(*330).

The petitioner asks leave to bring this action in behalf of the state, by virtue of the provisions of sec. 294.04, Stats., which so far as here material provides:

“(1) An action may be brought by the attorney-general in the name of the state, upon his own information or upon the complaint of any private party, against the parties offending in the following cases:

“(a) When any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military. ***

“(2) Such action may be brought in the name of the state by a private person on his own complaint when the attorney-general refuses to act or when the office usurped pertains to a county, town, city, village or school district.”

[5][6]Sec. 294.04 was enacted by the legislature as sec. 336, of ch. 120, Laws of 1856, and as a part of our code.Ever since its enactment it has continued in force without amendment except that the word “school” was inserted before the word “district” in the last line thereof.Giving to the words and phrases of that statute a construction according to their common and approved usage, sec. 370.01 (1), it would seem that their meaning is so clear and unambiguous as not to require construction.That statute was construed by this court in 1875.In State ex rel. Wood v. Baker, 38 Wis. 71, 81, Mr. Chief Justice Ryan, speaking for the court said:

“Sec. 6, ch. 160, R.S., relates to proceedings in the nature of quo warranto for usurpation of office; and authorizes the attorney general to bring an action in the name of the state‘upon his own information or upon the complaint of any private person.’Interpreted by the constitution and translated into legal phraseology, we take this to mean that, in such cases, the attorney general may file an information in the nature of quo warranto, ex officio or upon the relation of a private person.The word ‘complaint’ cannot mean a pleading so called in the code, but seems to be used in a general sense, as a substitute for relation; and the attorney general certainly proceeds ex officio when he acts on his own information only.So far, therefore, we see no material change of the law.The section, however, goes on to provide that such an action may be brought ‘in the name of the state, by a private person, on his own complaint, when the attorney general refused to act, or when the office usurped pertains to a county, town, city or district.”Before such a statute, the courts of the state might perhaps, in proper cases, have authorized proceedings in the name of the attorney general, if that officer wrongfully refused to act, and it was necessary to proceed in his name.Att'y. Gen'l. ex rel. Bashford v. Barstow, 4 Wis., 567.Be that as it may, this branch of the section gives a new proceeding by private parties, in the name of the state, without use of the attorney general's name or office, in cases of local office, and in all cases in which that officer may refuse to act.This proceeding is plainly in the nature of a civil action, although in the name of state.3 Black. Com., 263.”

That the construction given to that statute at the time was the only one that reasonably could be given to it seems clear.Ho...