State ex rel. Orvis v. Evans

• Decision Date: 09 November 1938
• Citation: 229 Wis. 304,282 N.W. 14
• Parties: STATE ex rel. ORVIS v. EVANS.
• Court: Wisconsin Supreme Court

229 Wis. 304

282 N.W. 14

STATE ex rel. ORVIS

v.EVANS.

Supreme Court of Wisconsin.

Nov. 9, 1938.

Appeal from a judgment of the Circuit Court for Waukesha County; James Wickham, Judge.

Reversed.

Special proceeding brought under secs. 12.22-12.24, Stats., in the name of the state upon the relation of Harold Orvis, an elector, for the purpose of investigating and determining whether David M. Evans, as a candidate for election to the office of judge of the Municipal Court of the Eastern Municipal District of Waukesha County, at an election held April 6, 1937, violated certain provisions of the Corrupt Practices Act, Ch. 12, Stats., and for the purpose of declaring his election void and ousting and excluding him from that office in the event of a determination that he violated those provisions. Upon an application made by Orvis, under sec. 12.22, Stats., to the County Judge of Waukesha County, the latter granted leave to him to bring the special proceeding, and appointed Edward J. Gehl special counsel to conduct the proceeding. Thereupon the special proceeding was commenced in the Circuit Court and a complaint was served charging certain violations of several provisions of Ch. 12, Stats. Evans filed an answer to the complaint, and upon the trial of the resulting issues of fact the jury returned a special verdict upon which judgment was entered dismissing the complaint upon its merits. The relator appealed from that judgment and Edward J. Gehl was appointed under sec. 12.25, Stats., to appear as special counsel in the matter in the Supreme Court. The defendant filed a motion to dismiss the appeal on the ground that no cost bond was furnished by appellant; and also filed a notice of review under sec. 274.12, Stats., of certain rulings by the trial court on motions after verdict.

Edward J. Gehl, Special Counsel, of Hartford, for appellant.

Corrigan & Backus, of Milwaukee, for respondent.

FRITZ, Justice.

[1] The defendant moved to dismiss the appeal on the ground that Orvis did not furnish a cost bond as required by sec. 274.11, Stats., relating to appeals in civil actions. Counsel for the defendant contends that Orvis had to furnish such a bond in order to perfect the appeal because of the provisions in sec. 12.24(3), Stats., of the Corrupt Practices Act that,-“Appeals may be taken from the determination of the court in such proceeding in the same manner as appeals may be taken as provided by law in civil actions, but the party appealing shall in no case be entitled to or obtain a stay of proceedings.”

On the other hand, the special counsel appointed herein contends that the state is the party in this action, and therefore no bond is required on appeal in view of the provision in sec. 274.26, Stats., that, “When the state, or any state officer, or state board, in a purely official capacity, *** shall take an appeal, service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from, and no bond need be given.”

In reply the defendant contends that sec. 274.26, Stats., is not applicable in an action brought in the name of the state on the relation of a private party, and in support of that contention the defendant cites State ex rel. Hartung v. City of Milwaukee, 102 Wis. 509, 78 N.W. 756. In that case the action was in equity to restrain the continuance of a public nuisance, and it was brought by the relator in the name of the state. But this court held that it was brought “without the presence of the proper law officer of the state”, and that as it was “not an action brought by the state, but by a private party, an effective appeal could not be taken without the giving of an undertaking” [page 757]. That decision is not applicable to the special proceeding, and an appeal therein authorized by secs. 12.22-12.25, Stats. That proceeding can only be commenced upon the granting of leave to bring such a proceeding by a County Judge, the Attorney General or the Governor, upon a showing made to the effect and in the manner required by sec. 12.22, Stats. That section also provides that the officer granting such leave shall appoint special counsel to conduct such proceeding; and “If such leave be granted and such counsel appointed such elector may, by a special proceeding brought in the circuit court in the name of the state upon the relation of such elector, investigate, and said court shall determine whether or not such candidate, committee or member thereof, has violated any provision of this chapter; ***.”

Furthermore, it is provided in sec. 12.25 (2), Stats., that, “The special counsel provided for by this chapter shall receive a reasonable compensation for his services, not to exceed, however, *** for the time actually spent in conducting the proceedings in the trial court or upon appeal, ***. Such compensation shall be audited by the secretary of state, and paid out of the state treasury upon a voucher and upon the certificate of the officer appointing such counsel ***. Such compensation shall be charged to the legal expense appropriation provided in subsection (2) of section 20.08.”¹

In view of those provisions, the special proceeding conducted by the special counsel authorized and appointed under sec. 12.22, Stats., of the Corrupt Practices Act is clearly not an action without the presence of the proper law officer of the state. On the contrary, in view of those provisions, it must be considered a proceeding in the name of the state with the presence of the special counsel as the proper law officer of the state. Moreover, it is not a proceeding in which the relator seeks to vindicate a private right; but only the public right of the state to have its offices filled and held only by those legally elected or appointed thereto, and to have the powers and duties thereof exercised and performed only by those entitled to such offices. Consequently, there is applicable to that proceeding the statement made In re Income Tax Cases, 148 Wis. 456, 500, 134 N.W. 673, 686, 135 N.W. 164, in discussing the original jurisdiction of this court, to-wit: “The state is always the plaintiff, and the only plaintiff, whether the action be brought by the Attorney General, or, against his consent, on the relation of a private individual under the permission and direction of the court. It is never the private relator's suit. He is a mere incident. He brings the public injury to the attention of the court, and the court, by virtue of the power granted by the Constitution, commands that the suit be brought by and for the state. The private relator may have a private interest which may be extinguished (if it be severable from the public interest), yet still the state's action proceeds to vindicate the public right.” See, also, State v. Ekern, Wis., 280 N.W. 393, 396. It is therefore our conclusion that in view of sec. 274.26, Stats., no bond was necessary to perfect the appeal herein.

So far as material to the other contentions considered herein, the jury found that Evans made disbursements and incurred obligations in excess of $960 (which as one-third of the first year's salary of the office in question was the maximum permissible under sec. 12.20 (1), Stats.); that he made disbursements for and distributed mirrors and match containers with political advertising printed thereon; that he failed to include the disbursements for that merchandise in the financial statement filed by him with the County Clerk; but that none of those acts or omissions was “of such a material nature that it affected or tended to affect the minds of some of the electors in casting their ballots to fill the office for which Evans was a candidate”; and that those acts or omissions did not “so affect *** the minds of the electors that the real will of the electors cannot now be ascertained.” In passing on the motions after verdict the court did not set aside any of the jury's findings, but granted the defendant's motion for judgment on the verdict and the dismissal of the complaint upon the merits. From the judgment entered accordingly, this appeal was taken.

On this appeal the appellant contends that upon the facts, as found by the jury, that Evans made disbursements and incurred obligations in excess of the maximum amount permissible under sec. 12.20 (1), Stats., and illegally made disbursements for mirrors and match containers and distributed them in violation of secs. 12.06 and 12.07 (3), Stats.1935, and failed to include his disbursements therefor in the financial statements which he was required to file by sec. 12.09, Stats., judgment should have been entered under sec. 12.24 (1), Stats., declaring the election void and ousting and excluding him from the office, regardless of whether or not any of the acts or omissions constituting such violations affected or tended to affect the minds of the electors in casting their ballots, or so affected or tended to affect their minds that the real will of the electors cannot be ascertained.

[2] Although there is some conflict in the evidence bearing upon the jury's finding that the disbursements made and the obligations incurred by the defendant exceeded the permissible maximum of $960, and the defendant has noticed a motion for review of the court's rulings in failing to find to the contrary, the jury's other findings,-unchallenged on this appeal,-that the defendant made disbursements for and distributed mirrors and match containers with political advertising printed thereon, and that he failed to include his disbursements therefor in the financial statements which sec. 12.09, Stats., required him to file must here be considered a verity. That disbursements for those purposes were included within the inhibitions of the Corrupt Practices Act is obvious, in view of the definition of the term “disbursement” in sec. 12.01 (3), Stats.1935, to-wit: “The term ‘disbursement’ shall mean and include every act by or through which any money, property,...