State v. Seymour
| Decision Date | 02 June 1964 |
| Citation | 128 N.W.2d 680,24 Wis.2d 258 |
| Parties | STATE of Wisconsin, Appellant, v. James Lloyd SEYMOUR, Respondent. |
| Court | Wisconsin Supreme Court |
George Thompson, Atty. Gen., Robert D. Martinson, Leroy Dalton, Asst. Attys. Gen., Madison, Wm. J. McCauley, Dist. Atty., Milwaukee, for appellant.
Eugene Grobschmidt, South Milwaukee, for respondent.
We will first consider the motion to dismiss because of mootness. Generally, if a question becomes moot through a change in circumstances, it will not be determined by the reviewing court. Lamoreux v. Williams (1905), 125 Wis. 543, 104 N.W. 813; State ex rel. Schertz v. Spiegel (1920), 171 Wis. 260, 176 N.W. 1022, 6 Wisconsin Law Review (1930), 101. It is a well recognized exception that a reviewing court will retain jurisdiction and decide the issue if the question is one of great public importance. Carlyle v. Karns (1960), 9 Wis.2d 394, 101 N.W.2d 92; Wisconsin Employment Relations Board v. Allis-Chalmers Workers' Union, etc. (1948), 252 Wis. 436, 31 N.W.2d 772, 32 N.W.2d 190; Doering v. Swoboda (1934), 214 Wis. 481, 253 N.W. 657.
The issues presented by this appeal are publici juris because vital to the enforcement of the Thomson Anti-Gambling Law in Milwaukee county, which has a population of slightly in excess of 1,000,000 people. Even though we have determined that we should not pass on the merits, we deem it preferable to reverse under sec. 251.57, Stats. (formerly Rule 32) rather than dismiss the appeal as moot. The reason for this is that if the appeal were to be dismissed the decision and order below would be left standing to be cited in future cases at the trial level. Therefore, defendant's motion to dismiss is denied.
When we turn to the merits, these two issues are presented:
(1) Was the district attorney or the corporation counsel the proper officer to institute the proceeding?
(2) If it be determined that the district attorney was not authorized to institute the proceeding, did this irregularity deprive the circuit court of jurisdiction to grant the relief demanded?
Because of the default of defendant, however, we only have before us the brief of the attorney general. A majority of the court are of the opinion, therefore, that because of this we should not decide the appeal on the merits, but should reverse under sec. 251.57, Stats., which provides:
'When a cause is submitted, or prosented by counsel for the appellant or plaintiff in error, but not by the...
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...can have no practical effect on the immediate parties: Where the issues are of great public importance, State v. Seymour, 24 Wis.2d 258, 261, 128 N.W.2d 680 (1964); where the constitutionality of a statute is involved, Doering v. Swoboda, 214 Wis. 481, 253 N.W. 657 (1934); where the precise......
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