State ex rel. Richter v. Chadbourne

• Decision Date: 22 February 1916
• Citation: 162 Wis. 410,156 N.W. 610
• Parties: STATE EX REL. RICHTER v. CHADBOURNE.
• Court: Wisconsin Supreme Court

162 Wis. 410

156 N.W. 610

STATE EX REL. RICHTER

v.CHADBOURNE.

Supreme Court of Wisconsin.

Feb. 22, 1916.

Quo warranto on the relation of A. E. Richter against F. W. Chadbourne to test the constitutionality of statutes creating a superior court for Fond du Lac county and abolishing the county court thereof. Judgment for relator.

Barnes, J., dissenting.

Original action of quo warranto brought in this court on the relation of A. E. Richter against F. W. Chadbourne to test the constitutionality of chapters 518 and 589 of the Laws of 1915, creating a superior court for Fond du Lac county and abolishing the county court thereof. In April, 1913, the relator was duly elected county judge of Fond du Lac county for a term of six years from the first Monday of January, 1914. On said last date he duly qualified and entered upon the duties of his office and performed the same until September 2, 1915, when the office was declared abolished by the laws above mentioned, and the jurisdiction of the county court transferred to the superior court of Fond du Lac county. The defendant, who was by the Governor appointed judge of the newly created superior court, on September 2, 1915, demanded possession of the county court rooms, records, books, papers, and property belonging thereto, and threatened relator with legal proceedings of ouster if surrender was not made as demanded. Under written protest the relator surrendered possession, and at the same time he notified the defendant and the county board of supervisors that he claimed the law creating the superior court and abolishing the county court to be invalid. On September 2, 1915, the defendant took possession of the rooms and property of the county court, and has since acted as judge of the superior court of Fond du Lac county, and has exercised the jurisdiction theretofore exercised by the county court.

The provisions of chapter 518 which relate to the county court are as follows:

“Sec. 65. From and after September first, 1915, all of the powers of the county court of Fond du Lac county and of the county judge shall be and hereby are transferred to and vested in the superior court of Fond du Lac county and its judge.

Sec. 66. From and after the first day of September, 1915, the county court of Fond du Lac county shall be and hereby is abolished and the office of the judge of said county court vacated.

Sec. 67. All matters and proceedings pending before the county court of Fond du Lac county or the judge thereof on September first, 1915, shall be and hereby are transferred to and vested in the jurisdiction of the superior court of Fond du Lac county and of its judge.

Sec. 68. All of the records, files, proceedings and property of the county court of Fond du Lac county on September first, 1915, shall be and hereby are turned over to and vested in the superior court of Fond du Lac county and its judge.

Sec. 69. The provisions of law with reference to the office of register in probate of the county court of Fond du Lac county shall apply to and provide for a register in probate for the superior court of Fond du Lac county.”

Chapter 518 was entitled:

“An act to create a superior court in the county of Fond du Lac.”

Chapter 589 was entitled:

“An act to amend sections 3, 5, 12, and 64 of chapter 518 of the Laws of 1915, relating to the superior court of Fond du Lac county.”

The amendments do not affect any question material to the determination of the case.

Doe, Ballhorn, Wilkie & Doe, of Milwaukee, for relator.

H. E. Swett, T. L. Doyle, and R. L. Morse, all of Fond du Lac (J. M. Gooding, Fred A. Foster, D. D. Sutherland, L. E. Lurvey, and F. Ryan Duffy, all of Fond du Lac, of counsel), for respondent.

VINJE, J. (after stating the facts as above).

[1] In the Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164, the question of the original jurisdiction of this court was treated so fully that only a brief reference to the subject need now be made. It was said, in substance, that where in a matter of public right the remedy in the lower court is entirely lacking or absolutely inadequate, this court will take original jurisdiction, to the end that justice shall not be denied. In this case there is no lack of jurisdiction in the circuit court, but, in view of the public rights that may be affected by the acts of the newly created court whose process runs to all parts of the state and which has civil jurisdiction up to $25,000, and jurisdiction of all criminal cases except homicide, it is deemed that the remedy through the circuit court and to this court by appeal is inadequate because of the long delay involved. The rights of litigants who may desire or be compelled to resort to that court and the importance of the probate business of Fond du Lac county that must be transacted therein alike, call for a speedy determination of the question of the validity of its creation. For these reasons, this court entertains original jurisdiction of the case.

[2][3] The relator urges a number of constitutional objections to the validity of chapter 518 of the Laws of 1915, creating the court. Many of them are of such importance and so far-reaching in their results that it has been thought best not to pass upon them in this case, since its disposition can be rested upon only two of them, namely: First, that chapter 518 is a local bill within the meaning of section 18, art. 4, of the Constitution; and, second, that its subject is not expressed in the title as required by said section, which reads:

“No private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title.”

In Milwaukee v. Isenring, 109 Wis. 9, 85 N. W. 131, 53 L. R. A. 635, the cases in this state involving the question of when a law is general or local within the meaning of the constitutional provision above quoted were reviewed at length, and it was there held that a law might be public and local, or it might be general in the restricted sense in which the term is used in section 21, art. 7, of the Constitution, which provides that “no general law shall be in force until published,” and at the same time be a local law; the word “general,” as here used, meaning public in the sense that it affects the public at large in a single defined subdivision of the state, such as a county, town, city, or village, or a collection of such localities not constituting a legitimate class for purposes of legislation, and still is local within the meaning of section 18, art. 4, because affecting but a single locality not constituting a legitimate class for legislation. It was also held in that case that a bill entitled “An act in relation to sheriff's fees,” which dealt with the compensation of the sheriff of Milwaukee county only, was local in character. In Wagner v. Milwaukee County, 112 Wis. 601, 88 N. W. 577, the same construction was given to an act authorizing any county to build a viaduct costing not less than $80,000, with other conditions, because it could apply only to Milwaukee county.

The law in question deals with the establishment of a superior court in Fond du Lac county and the abolishment of its county court. It is limited in its effect to the boundaries of Fond du Lac county, and therefore local in character. True, it is public or general in the sense that it may affect publicly or generally all the people of the county or outside thereof, but it deals with the establishment and abolition of courts of a specified locality which does not constitute a class for purposes of legislation. So, within the rule laid down in the case of Milwaukee v. Isenring, supra, it must be held to be a local law coming within the provisions of section 18, art. 4, of the Constitution.

The failure of counsel for defendant to realize that a law may be general or public within the meaning of section 21, art. 7, and still be local within the meaning of section 18, art. 4, has led them to claim that acts like the one in question have been held to be not local in these cases: In re Boyle, 9 Wis. 264; In re Ferdinand Bergin, 31 Wis. 383;Atty. Gen. v. Foote, 11 Wis. 14, 78 Am. Dec. 689;Meshke v. Van Doren, 16 Wis. 319. Only the case of In re Ferdinand Bergin, 31 Wis. 383, lends color to this claim. There the question was whether chapter 137, Laws of 1871, which authorized the commencement of criminal prosecution by information instead of indictment, applied to the municipal court of Milwaukee county. It was claimed it did not because the act creating that court was a local act. The court says:

“A short and most conclusive answer to this position is that this court in Re Boyle, 9 Wis. 264, held that the act of 1859 establishing such court is a general law.”

This ruling must be deemed to stand on a par with that of Zitske v. Goldberg, 38 Wis. 217, referred to by Mr. Justice Marshall in Milwaukee v. Isenring, 109 Wis. 9, 14, 85 N. W. 131, 53 L. R. A. 635, as a case where, without discussion, the words “local” and “general,” in their restricted sense, were held not applicable to the same act. For in Re Boyle the only point decided bearing upon the question under consideration was that the act creating the municipal court of Milwaukee county was a general act within the meaning of section 21, art. 7, of the Constitution, requiring it to be published before it took effect. In State ex rel. Atty. Gen. v. Foote, 11 Wis. 14, 78 Am. Dec. 689, the same act was held to be public, and that judicial notice of its publication would be taken. In Meshke v. Van Doren, 16 Wis. 319, it was held that an act conferring upon the county court of Winnebago county jurisdiction concurrent with the circuit court up to $500 was held to be a public act of which the court would take judicial notice. So it appears that none of the cases relied upon except In re Ferdinand Bergin, 31 Wis. 383, bear out the claim made, and that the latter case as to this question was based upon the misconception that...