State ex rel. Rosenhein v. Frear
| Decision Date | 24 February 1909 |
| Citation | 138 Wis. 173,119 N.W. 894 |
| Parties | STATE EX REL. ROSENHEIN v. FREAR, SECRETARY OF STATE, ET AL. |
| Court | Wisconsin Supreme Court |
Original petition by the State, on the relation of Adolph Rosenhein, to commence an action against James A. Frear, Secretary of State, and others. Application denied.
Petition by a taxpayer to commence an action in this court for the purpose of preventing payment of expenses out of the state treasury incurred, or that may be incurred, by a joint committee of the Legislature, under a resolution clothing such committee with authority to investigate the manner in which the primary election of party candidates for the office of United States senator to be chosen by the Legislature of 1909 was conducted, and any alleged improper conduct of such candidates voted for at such election, and to report the evidence taken and the committee findings. The application was heard on the relator's petition and the proposed bill of complaint, and upon notice to the Secretary of State, the State Treasurer, and the Attorney General, and the matter was presented at the bar of the court by C. F. Lamb and Hon. J. Elmer Lehr, attorneys for the relator, and the Deputy Attorney General for the defendants. In addition to the matters, in due form pleaded, showing legal capacity to sue and jurisdiction to entertain the case, conditioned upon grounds sufficient to warrant the relief prayed for appearing in the bill, the following claims are appropriately set forth in such bill as satisfying the call for such grounds:
(1) The primary election law, as regards the nomination of party candidates for the office of United States senator, violates several clauses of the Constitution of the United States, and particularly section 3, art. 1, requiring United States senators to be elected by state Legislatures, and that such primary election law, in its purpose and effect, takes from the state Legislature the absolute discretion in respect to such elections lodged in the members thereof by the fundamental law.
(2) The resolution forming the sole basis for the proposed expenditures is void, because thereby it is proposed to incur state indebtedness in the administration of an unconstitutional primary election law.
(3) The said resolution is in contravention of the state Constitution (section 8, art. 8), in that it purports to create a state debt, and the question upon its passage was not taken by yeas and nays entered upon the journal of the assembly, and it does not appear that three-fifths of the members elect of such assembly were present at the time the question was taken.
(4) The act to provide for payment of the proposed expenditures confers auditing power, as to the committee accounts, on the chairman of the committee, and requires the Secretary of State to formally audit such accounts upon such chairman's certification of their correctness, contrary to section 2, art. 6, of the state Constitution.
(5) The resolution attempts to authorize expenditure of public money for private purposes contrary to constitutional limitations in respect to that subject.
(6) The resolution purports to authorize expenditure of public money in support of an illegitimate judicial tribunal, contrary to section 2, art. 7, of the state Constitution.
(7) If any reason ever existed for the proposed expenditure of public money, it ceased to exist before the investigation was authorized.
(8) The resolution, in effect, calls for the use of public money for political party purposes.
(9) The primary election law violates section 4, art. 1, of the state Constitution, guaranteeing the right of public assembly and consultation for the public good.
C. F. Lamb and J. Elmer Lehr, for plaintiff.
Russell Jackson, Deputy Atty Gen., for defendants.
The foregoing covers all matters of any possible moment stated in the bill. The court takes the application for leave to use the original jurisdiction of the court, deciding the preliminary question of judicial power, and passing beyond that, further matters being regularly...
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