State v. Wisconsin Tel. Co.

• Decision Date: 09 October 1979
• Docket Number: No. 76-669,76-669
• Citation: 91 Wis.2d 702,284 N.W.2d 41
• Parties: STATE of Wisconsin, Max D. Hupp, Roberta J. Hupp, Larry D. Hupp and Teri Hupp, Plaintiffs-Appellants, v. WISCONSIN TELEPHONE COMPANY, a Domestic Corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 41

284 N.W.2d 41

91 Wis.2d 702

STATE of Wisconsin, Max D. Hupp, Roberta J. Hupp, Larry D Hupp and Teri Hupp, Plaintiffs-Appellants, v. WISCONSIN TELEPHONE COMPANY, a Domestic Corporation Defendant-Respondent.

No. 76-669.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 12, 1979.

Decided Oct. 9, 1979.

Duane L. Arena, Racine, submitted briefs for plaintiffs-appellants hupps.

Bronson C. La Follette, Atty. Gen., and Robert D. Repasky, Asst. Atty. Gen., submitted brief for plaintiff-appellant State of Wis.

F. D. Huber, Jr., Milwaukee, submitted brief for defendant-respondent.

HANSEN, Justice.

April 18, 1975, Max D. Hupp, Roberta J. Hupp, his wife, and Larry D. Hupp and Teri Hupp, two of their adult children, commenced an action against the Wisconsin Telephone Company for a forfeiture and for damages sustained as a result of the telephone company's discontinuance of telephone service to plaintiffs' address at 7832 Highway 32, Racine, and subsequent refusal to resume service except upon payment of an allegedly excessive cash deposit.

Several amended complaints were filed. The amended complaint now before the court in this litigation named the four members of the Hupp family and the State of Wisconsin as plaintiffs. It was served and filed in November, 1976.

For the purpose of these proceedings we summarize the significant allegations contained in the amended complaint. In December, 1971, Max D. Hupp had an outstanding obligation to the telephone company in the amount of $579.92 for telephone charges. Roberta J. Hupp, his wife, contacted the respondent telephone company and proposed payment of $25 per week on the outstanding service charge. The charge for one month's exchange service was, at all material times, $11.35, and the maximum toll charges for any two months was $944.51. The respondent rejected the proposal of Roberta J. Hupp and demanded payment of $300 within a week, minimum weekly payments of $50 thereafter and a $1,000 cash deposit in the name of Max D. Hupp as a condition of continuing the service. These conditions were not met and on December 9, 1971, telephone service was disconnected and telephones removed for nonpayment of the service bill which at that time amounted to $579.92.

December 9, 1971, Max D. Hupp filed a petition in bankruptcy. In April and November, 1972, and May, 1973, Larry D. Hupp, Roberta J. Hupp and Teri Hupp, plaintiffs-appellants, each respectively requested respondent to establish service at the Hupp residence in their individual names and based upon their credit. The respondent refused each request except upon payment of a cash deposit in the amount of $1,000.

December 18, 1974, telephone service to Max D. Hupp was reestablished upon payment of a cash deposit in the amount of $75. The complaint also alleges that on or about January, 1972, respondent acquired knowledge of the fact that Max D. Hupp had filed a petition in bankruptcy, but nevertheless permitted collection activities to be maintained against appellants, including an attempt to enforce a claim against Max D. Hupp in the amount of $823.58 by commencing a lawsuit on October 25, 1974.

The appellants demand damages from the respondent aggregating in excess of one million dollars and in doing so allege that respondent's conduct constituted a violation of secs. 196.625 and 427.104(1)(j), Stats., and Wisconsin Administrative Code secs. PSC 165.052(1)(a) and PSC 165.051(2). They also allege that respondent was liable for treble damages pursuant to sec. 196.64, Stats.

The respondent moved to dismiss the action on several grounds, hereinafter considered, and the attorney general on behalf of the State of Wisconsin, moved to dismiss the State of Wisconsin on the grounds that the state had not consented to being a plaintiff in the action and that an action for forfeiture may be brought only in the name of the state and only by the state as a plaintiff.

The trial court ordered (1) that the State of Wisconsin be dismissed and removed as a party to the action; (2) that the amended complaint of the individual plaintiffs and all causes of action contained therein, except those portions relating to Chapter 427, Stats., be dismissed; and (3) that the individual plaintiffs would have 20 days from the date of notice of the order to serve and file an amended complaint relating solely to the cause of action under Chapter 427. This order was entered on February 23, 1977.

The following issues are considered:

1. Does the attorney general of the State of Wisconsin have authority to move to have the State of Wisconsin dismissed as a party plaintiff in a forfeiture action brought pursuant to sec. 196.625, Stats.?

2. May a private person commence a forfeiture action pursuant to sec. 196.625, Stats., on behalf of the State of Wisconsin?

3. Does the circuit court have subject matter jurisdiction over a forfeiture action brought pursuant to sec. 196.625, Stats.?

4. Are the causes of action alleged in the amended complaint, except the causes of action under Chapter 427, Stats., barred by the statute of limitations?

5. Does the amended complaint state any cause of action apart from the causes of action under Chapter 427, Stats.?

AUTHORITY OF ATTORNEY GENERAL.

The appellants contend the attorney general has no authority to move that the State of Wisconsin be dismissed as a party plaintiff when private persons commence forfeiture actions under sec. 196.625, Stats., and include the state as a party plaintiff.

Sec. 196.625, Stats.1975, provides in part:

" . . . and every person or corporation neglecting or refusing to comply with any of the provisions of this section shall forfeit not less than $25 nor more than $100 for each and every day such neglect or refusal shall continue, one-half of which shall go to the use of the person or corporation prosecuting therefor."

Sec. 195.07(3), Stats.1975 (amended and renumbered as sec. 196.44 by Chapter 29, Laws of 1977), provides in part:

" . . . Any forfeiture, fine or other penalty provided in chapters 192 to 196 may be recovered as a forfeiture in a civil action brought in the name of the state . . . ."

Chapter 288, Stats., provides for the COLLECTION OF FORFEITURES and Sec. 288.02, Stats.1975 (amended by ch. 29, Laws of 1977), states in part:

" . . . Every such forfeiture action shall be in the name of the state of Wisconsin, . . . "

In this state, the attorney general has no common-law powers or duties. State ex rel. Beck v. Duffy, 38 Wis.2d 159, 163, 156 N.W.2d 368 (1968); State ex rel. Reynolds v. Smith, 19 Wis.2d 577, 584, 120 N.W.2d 664 (1963); State ex rel. Jackson v. Coffey, 18 Wis.2d 529, 538, 118 N.W.2d 939 (1963); State v. Snyder, 172 Wis. 415, 417, 179 N.W. 579 (1920). This court has stated:

"Wisconsin, unlike numerous states, has specifically circumscribed the powers and duties of the office of the Attorney General. Art. VI, Sec. 3 of the Wisconsin Constitution limits those powers and duties to those 'prescribed by law.' This constitutional principle has been interpreted by the courts in numerous decisions as removing from the office of the Attorney General any powers and duties which were found in that office under common law. State ex rel. Beck v. Duffy (1968), 38 Wis.2d 159, 163, 156 N.W.2d 368; State ex rel. Jackson v. Coffey (1963), 18 Wis.2d 529, 118 N.W.2d 939; State v. Snyder (1920), 172 Wis. 415, 179 N.W. 579. The Attorney General is devoid of the inherent power to initiate and prosecute litigation intended to protect or promote the interests of the state or its citizens and cannot act for the state as Parens patriae. See generally : Christenson, The State Attorney General, 1970 Wis.L.Rev. 298. Such power must be specifically granted by the legislature. Unless the power to prosecute a specific action is granted by law, the office of the Attorney General is powerless to act." In Estate of Sharp, 63 Wis.2d 254, 260, 261, 217 N.W.2d 258, 262 (1974).

Sec. 165.25, Stats.1975 (subsection (1) was amended by chs. 29 and 187, Laws of 1977), provides:

"165.25 Duties of department of justice. The department of justice shall:

(1 ) REPRESENT STATE. 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 anywise interested. All expenses of such proceedings shall be charged to the sum sufficient case account of the department of justice under s.20.455(2)(d).

"(2 ) PROSECUTE BREACHES OF BONDS AND CONTRACTS. Prosecute, at the request of the governor, or of the head of any department of the state government any official bond or any contract in which the state is interested, deposited with any of them, upon a breach thereof, and prosecute or defend for the state all actions, civil or criminal, relating to any matter connected with any of their departments except in those cases where other provision is made."

More specifically, sec. 195.07(2), Stats.1975, provides:

" . . . Upon request of the commission, the attorney-general or the district attorney of the proper county shall aid in any investigation, hearing or trial had under the provisions of those chapters, (chapters 195 and 196) and shall institute and prosecute all necessary actions or proceedings for the enforcement of all laws relating to railroads or public utilities, and for the punishment of all violations thereof."

The record in this case clearly indicates that the attorney general was appearing in behalf of the State of Wisconsin and the public service commission which wanted the action dismissed and not...