State ex rel. Wis. Tel. Co. v. Henry

• Decision Date: 30 April 1935
• Citation: 260 N.W. 486,218 Wis. 302
• Parties: STATE EX REL. WISCONSIN TELEPHONE CO. v. HENRY, STATE TREASURER, ET AL.
• Court: Wisconsin Supreme Court

218 Wis. 302

260 N.W. 486

STATE EX REL. WISCONSIN TELEPHONE CO.

v.HENRY, STATE TREASURER, ET AL.

Supreme Court of Wisconsin.

April 30, 1935.

Original action by the State, on the relation of the Wisconsin Telephone Company, against Robert K. Henry, State Treasurer, and others, for declaratory relief.--[By Editorial Staff.]

Judgment for defendants.

On April 2, 1935, the Wisconsin Telephone Company filed a petition for leave to institute an original action or proceeding against the defendants, Robert K. Henry, state treasurer, Theodore Dammann, secretary of state, and James E. Finnegan, Attorney General, for declaratory relief, pursuant to section 269.56, Stats. The relief prayed for was a judgment declaring that Bill No. 48A, which was passed at the 1935 Biennial Session of the Legislature, was not lawfully enacted, or, if lawfully enacted, that it was not legally published, and has not become and is not law; or that, if the court should hold that the bill was lawfully enacted, published, and became and is law, as chapter 15, Laws of 1935, subsections (1), (2), and (3) of section 4 thereof are unconstitutional and void, or if a declaratory judgment as to said subsections cannot or should not be given in said proposed proceeding, that then the judgment be without prejudice to the right of the relator to assert its objection and claim of unconstitutionality in any other action or proceeding, or in any other way.

Upon a hearing pursuant to that petition, leave was granted to commence an original action for declaratory relief, limited (without prejudice to relator's right to question the constitutionality of any provisions of the bill or chapter 15, Laws of 1935, on any other grounds in any other proceeding) to the question of whether Bill No. 48A was validly passed, signed, enacted, and published. Thereupon the Wisconsin Telephone Company, as plaintiff, filed its complaint, in which it alleged in substance (so far as necessary in the consideration of the questions determined herein) that Bill No. 48A, after being duly passed with certain amendments by the Assembly and Senate, respectively, of the Legislature, was presented, pursuant to section 10, art. 5, of the state Constitution, to the Governor; that he approved of all provisions of the bill as passed, excepting section 1, subsections (3), (4), (5, a, b), (6), (7), (8), and (9) of section 8, and section 9, which he objected to, and then returned the bill to the Assembly with a message setting forth the parts which he returned without his approval; that the Assembly refused passage of those parts, and thereupon the secretary of state caused only those parts, which had been approved by the Governor, to be published as chapter 15, Laws of 1935, in the official state paper; that the parts refused approval by the Governor are not appropriations but are provisos or conditions inseparably connected with each and every other provision of the bill and an integral part thereof and, in so far as they affect the appropriation made in the bill, are an integral and inseparable part of all of that appropriation; that the bill provides for the levy of taxes, the making of an appropriation, the setting up of a state agency, the method of administering the appropriation, the repeal of part of chapter 363 of the Laws of 1933, together with other provisions, and sets forth expressly the intention of the Legislature, and said parts thereof refused approval by the Governor, as aforesaid, affect and are integral and inseparable parts of each and every of the said provisions and purposes of the bill, and that, therefore, the objections by the Governor to the said parts have no effect because they are not an exercise of the power conferred on him by section 10, art. 5, Wisconsin Constitution, which gives the Governor power to approve in whole or in part any appropriation bill; that the bill never became a law or effective as a law for the further reason that the Legislature has not passed upon it, so as to enact it into law in the manner provided in section 1 of article 4, Wis. Const., which provides: “The legislative power shall be vested in a senate and assembly,” in that the Senate has not passed or concurred in the bill in the form in which the same has been published; and that it was never passed by the Legislature and published as required by the Constitution and statutes of the state of Wisconsin. Plaintiff further alleged that it has been notified by the defendant Robert K. Henry, as state treasurer, that a tax of $404,476.93, to be imposed under the bill, would be due on March 15, 1935, and that, if that tax was not paid when due, the relator would be subjected to a penalty of 15 per cent.; that the state treasurer is attempting to collect the amount of taxes to be imposed under the bill as a law from the plaintiff and other taxpayers, and that, if they are not paid, the defendant James E. Finnegan, as Attorney General, will attempt to enforce the bill as a law and compel the plaintiff and other taxpayers to pay the taxes so imposed and the penalty thereon; that if they make payment of taxes under the bill and it should be held that it never became a law because not enacted and published in the manner required by the Constitution and statutes of Wisconsin, then the plaintiff and such other taxpayers would be without any remedy because the provisions of the bill for the recovery of the taxes so paid would be invalid as law; that by reason of the Governor's objection to the parts of the bill, and the publication thereof without including therein those parts, a controversy exists between the plaintiff and the defendants as to whether the bill is a law, and that controversy presents a question of general public interest because the bill attempts to raise funds through the medium of taxation for emergency relief, and imposes income taxes upon all citizens of the state, whose taxable income is in excess of $1,000, and also excise and other taxes; that the sovereignty of the state is involved in that controversy; and that the people of the state have a material interest therein because the state treasurer is about to perform an official act in attempting to collect the taxes imposed under the bill, which will materially affect the interests of the state as a whole, if the bill was not passed by the Legislature or published so as to become a law.

Upon that complaint the relator prayed for a declaratory judgment, adjudging that the bill was not validly enacted, signed, or passed; or that, if it was validly enacted by the Legislature and the Governor, that it was not validly published; and that it has not become and is not law, or in force. Defendants demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action.

Miller, Mack & Fairchild and Vernon Swanson, all of Milwaukee, for plaintiff.

James E. Finnegan, Atty. Gen., and Benj. Poss, Sp. Counsel, and Joseph P. Brazy, both of Milwaukee, for defendants.

FRITZ, Justice.

[1] The allegations in the original petition, and in the subsequent complaint, sufficiently disclose the existence of a genuine and justiciable controversy because of which the plaintiff is entitled to the maintenance of an action for declaratory relief. On the plaintiff's application for leave to commence an original action or proceeding in this court for that purpose, its right to do so was challenged. Upon a hearing and due consideration of that challenge, we concluded that it was sufficiently shown that acts which materially affected state-wide interests of the people at large were about to be performed by state officers in their official capacity, either contrary to law, or under the terms of a purported law, which was alleged not to have been enacted in the manner required by constitutional provisions; that a valid law authorizing acts and immediate action thereunder was absolutely necessary to enable the state to promptly provide and contribute enormous sums of money required for immediate emergency relief for multitudes in distress, because of the existing state-wide poverty and unemployment; and that, under those and other facts of which we may take judicial notice, the situation is such, in a matter publici juris, that the remedy by an action commenced in a lower court is entirely inadequate. Consequently, it was absolutely necessary and proper for this court to take original jurisdiction of the controversy, in respect to a matter clearly publici juris, as to whether Bill No. 48A was validly passed, signed, and published, so as to result in the enactment of chapter 15, Laws of 1935, as a valid law (Income Tax Cases, 148 Wis. 456, 498, 134 N. W. 673, 135 N. W. 164), leaving in the event of an adjudication that the law was validly enacted, the determination of other issues as to the constitutionality or construction of provisions in the law, and which involve mere private rights or interests, to the courts which are provided for the vindication of private rights.

Bill No. 48A, as well as chapter 15, Laws of 1935, is entitled, “An Act to raise revenues for emergency relief purposes, and making appropriations.” The obvious, primary, and underlying purpose of the bill and the act, as finally published, was the appropriation by the state of funds which were absolutely necessary for immediate emergency relief. To enable the state to raise the enormous amount of the required appropriation, it was equally necessary to enact provisions for additional state revenue. To effect those purposes, Bill No. 48A was introduced by the Joint Committee on Finance of the Legislature. Sections 1 and 9 of the bill, as thus introduced, purported to state the intent of the Legislature in enacting the bill; sections 2 to 7, which were appropriately headed, e. g., “Emergency relief tax on incomes,” etc., contained the provisions for raising the necessary revenue; and section 8, which was entitled, “Appropriations,”...