State v. Indus. Comm'n

• Decision Date: 19 October 1920
• Citation: 172 Wis. 415,179 N.W. 579
• Parties: STATE v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

172 Wis. 415

179 N.W. 579

STATE

v.INDUSTRIAL COMMISSION et al.^*

Supreme Court of Wisconsin.

Oct. 19, 1920.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the State of Wisconsin, by the Attorney General, against the Industrial Commission, to review its award. From judgment affirming the award, the State appeals. Judgment reversed, and cause remanded, with directions to dismiss the action.J. J. Blaine, Atty. Gen., and W. W. Gilman, Asst. Atty. Gen., for the State.

David C. Pinkerton, of Oshkosh, and Byron H. Stebbins, of Madison, for respondent.

OWEN, J.

The question that first presents itself is whether the court has jurisdictionof the action. The award of the Industrial Commission was made on the 14th day of June, 1919. This action was brought by the Attorney General June 20, 1919. It was brought on his own initiative, without authority from the Governor. On the 17th day of November, 1919, a motion to dismiss the action was made in the circuit court. On the 7th day of November, after notice of said motion to dismiss had been given, the Governor wrote the Attorney General a letter in which he assumed to ratify and confirm on behalf of the state the action on the part of the Attorney General in bringing the suit, and requested him, as of the date of the order and award of the Industrial Commission, to bring the action in the circuit court for Dane county, for the review of such order and award.

[1][2] In this state the Attorney General has no common-law powers or duties. His duties spring from the statute, and he must find authority in the statute when he sues in the circuit court in the name of the state or in his official capacity. State v. Milwaukee E. R. & L. Co., 136 Wis. 179, 116 N. W. 900, 18 L. R. A. (N. S.) 672;State ex rel. Havel v. Sayle, 168 Wis. 159, 169 N. W. 310.Section 14.53, Stats., provides that--

The Attorney General shall “appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the Supreme Court, in which the state is interested or a party, and attend to and prosecute or defend all civil cases sent or remanded by the Supreme Court to any circuit court in which the state is a party; and when requested by the Governor or either branch of the Legislature, appear for the state and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people thereof may be in any wise interested.”

If he had any power or authority to bring the instant action, it was by virtue of the language just quoted. That it falls far short of conferring authority upon him to bring the action is apparent upon casual reading. He has no power to prosecute actions in the circuit court, except in cases remanded by the Supreme Court, unless requested by the Governor or either branch of the Legislature, or in cases specifically authorized by the statute, such as section 3236, Stats.

[3][4] Section 2394--22, Stats., provides that “in any action for the review of an order or award, and upon any appeal therein to the Supreme Court, it shall be the duty of the Attorney General, personally, or by an assistant, to appear on behalf of the commission, whether any other party defendant shall have appeared or be represented in the action or not.” This provision lays upon the Attorney General the duty to defend the awards of the Industrial Commission. No exception is made where the state is a party. Even though this provision contravened other general provisions elsewhere found in the statutes, by familiar rules of statutory construction this special provision, dealing with a particular subject, would prevail over such other general provisions. But this provision does not contravene any other provision in the statute specifying, generally, the duties of the Attorney General. His statutory duty, therefore, is to defend the awards of the Industrial Commission, and the Governor cannot, if he would, impose upon him duties in conflict therewith. Furthermore, there is a very practical reason why the Attorney General should consistently defend the Industrial Commission. If he is to defend the actions of the Industrial Commission as a general proposition and assail them when the state is adversely interested, he may easily find himself embarrassed by being forced into inconsistent positions. That very situation would arise if this case and Holt Lumber Co. v. Industrial Commission, 168 Wis. 381, 170 N. W. 366, were concurrently pending, as, upon the merits, this case is ruled by that, as was held by the lower court. If they were pending at the same time, every argument made by the Attorney General in this case would tend to impeach the action of the Industrial Commission in that, and every effort made by him to sustain the action of the commission in that case would be against the position he seeks to maintain in this. Such a situation would be embarrassing to the Attorney General and detract from the value of his services to the commission. In the interest of good administration, if for no other reason, it should be...