Winding v. Frear (In re Bolens)

• Decision Date: 15 March 1912
• Parties: IN RE BOLENS. WINDING ET AL. v. FREAR ET AL.
• Court: Wisconsin Supreme Court

148 Wis. 456

135 N.W. 164

IN RE BOLENS.WINDING ET AL.

v.FREAR ET AL.

Supreme Court of Wisconsin.

March 15, 1912.

For former opinion, see 134 N. W. 673.

MARSHALL, J.

I fully determined to write, at length, in substitution for the above. On further reflection it seems to do so might give unwarranted dignity to some suggestions voiced in these cases which were, as is supposed, effectually foreclosed more than a century ago, and so are not, generally, and should not, efficiently, be deemed open for discussion.

After the uniform holding here, through many important adjudications, that public money in the public treasury, is a subject of trust for all the people for public purposes and disbursable only pursuant to valid legislation, and that every taxpayer is a cestui que trust having sufficient interest in preventing abuse of the trust to be recognized in the field of this court's prerogative jurisdiction as a relator in proceedings to set sovereign authority in motion by action in the name of the state for prevention or redress, any suggestions to the contrary, however well supported as an original proposition, might well have but a passing notice. The same is true of the question of whether an action against a state officer to prevent disbursement of public money in the enforcement of an invalid act of the Legislature is against the state in any proper sense. It has been held over and over again, in terms or in effect, that such an action is to be regarded as against the person in his individual, not in his official capacity, and so not against the state,--so held very recently most significantly by the Supreme Court of the United States, in Re Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764, followed here in Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061.

It is essential to strictly maintain here the foregoing stated principles. Only by so doing can this court fully perform its great function as the supreme efficient conservator, defender and preserver of the inherent and guaranteed rights of the people. The court will not swerve from the proper course for which it was given independent status, “through fear, favor, affection or hope of reward.” I know every member of it is firm in that. No unreasonable impatience elsewhere, if such exists, will be permitted to interfere with the sturdy performance of constitutional duty here. While paying due deference to co-ordinate departments it must expect that deference in return. There must be no hesitation through fear of censure or thought of tuning the judicial harpstrings to harmonize with temporary conditions, as we hear advocated outside at times. In that there is no division of sentiment here.

I have too much respect for the lawmaking power to indulge the idea that there is any dominating thought there hostile to the willing performance of duty here to test enactments by constitutional restraints on all proper occasions, and put the stamp of judicial disapproval thereon when manifestly required because of the enactment being evidently not law in fact though law in form; and too much respect for the average legislative sentiment not to see through the vista of any momentary impatience,--sometimes exhibited, at the failure of legislative efforts,--to the considerate judgment of after reflection which may always be depended upon to approve and honor full performance of judicial duty to appreciate that when there is a conflict between an act and the Constitution, as seems to the court created to view the matter, it must decide between them and “as the Constitution is superior to any ordinary act of the Legislature the Constitution and not the ordinary act must govern the case to which they both apply.” Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. On the other hand, I have too high regard for the great trust reposed in the instrumentalities chosen for now to give vitality to the judicial function, to think that, if there be any considered sentiment momentarily elsewhere inimical to full performance of duty here, it can exert efficient influence in that regard. Generally speaking, I apprehend the sentiment of the public is in favor of a prompt, thorough treatment of constitutional questions as they arise. The people want to know, and have a right to know and legislative instrumentalities desire to have them know, at the earliest practicable moment, just where they stand with reference to important new, far-reaching enactments.

The fundamental law, as it has been construed, and the function of this court as to applying the rule of the...