14 N.W.2d 428 | Wis. | 1944
The circuit court granted an injunction upon the first cause of action and dismissed the complaint as to the other two. The judgment was granted upon the motion of the plaintiff for judgment on the pleadings.
The defendants interpose procedural objections which will be disposed of before considering the case on the merits.
The defendants claim that the complaint is insufficient for the reason, as stated by the trial judge, that "an action to enjoin state officers can only be brought by the attorney general, or on his refusal to act on request by an individual who is threatened with substantial loss." The answer alleges and the motion of the plaintiff as a demurrer admits that no such request was made. *409
The rule invoked does not go to the existence of a cause of action but only to the right of the plaintiff to bring it. That no request was made did not affect the jurisdiction of the court to entertain and decide the action. The court might, perhaps, have rightly refused to entertain the action because of absence of the request but was not without jurisdiction to hear and determine it. The state officers, and therefore the state, were represented by able counsel appointed by the governor under sec.
(2) The defendants also claim that a taxpayer's action does not lie unless the individual taxpayer plaintiff sustains substantial as distinguished from trivial loss if the expenditures involved be not enjoined. This is not tenable. It is injury to taxpayers as a class that is involved in the action and that loss in the instant case is substantial if the expenditures are illegal. The expenditures if they are illegal are continuing and in time would necessarily be of substantial amount. The point the defendants raise here is rather that the action does not lie where no loss to the taxpayer is involved and that the answer alleges that the expense to the taxpayers is less under the practice involved than it would be if the printing were let to the lowest bidder. We consider that whether the cost would be greater were the printing to be let by contract is immaterial.Victora v. Muscoda,
A statement in Goodland v. Zimmerman,
The case was disposed of on the merits by the court below on the theory that sec. 25, art. IV, of the state constitution prohibits the state from doing any state printing. The briefs here are devoted almost entirely to that question as was the argument. If the appellants are correct in their contention that sec. 25 does not prohibit state printing the section is not self-executing. It cannot operate to permit printing by the state until the legislature provides therefor by statute. There is no statute so providing. The constitutional question is therefore not before us and cannot properly be discussed by us, much less decided. A constitutional question will not be decided until it is brought directly in issue by the facts involved in the instant case. In State ex rel. Rosenhein v. Frear
(1909),
The cases above cited dealt with statutes enacted by the legislature. But if constitutional questions arising under statutes cannot be considered until facts are presented directly bringing them in issue, with equal or greater reason they cannot be considered in absence of a statute presenting them.
Thus the only question for our consideration is whether existing statutes authorize approval by the secretary of state of the two classes of vouchers presented to him for approval, those for salaries of the printers operating the two printing presses, and those for supplies used in the operation of the presses. The answer admits the purchase of and use of the two presses as alleged in the complaint and admits that they are printing presses.
The legislature by ch. 35, Stats., has provided explicitly and meticulously for every kind of printing required by the state. Sec. 35.33, Stats., provides for state university printing. All but job work is to be procured to be done by the state printer upon order of the director of purchases. Sec.
The answer to the second cause of action alleges that the college of agriculture of the University of Wisconsin has received various grants from the federal government for the purpose of aiding education, research, and extension work done by said college and that for the fulfilling of the purposes of said grants the use of the press referred to in said cause of action is necessary and convenient, and that without its use the work required by said grants could not be practically carried on.
The answer to the third cause of action alleges that large sums of money have been granted by the federal government to the University of Wisconsin, the experimental station, and the college of agriculture, some for instructional purposes, some for research, and some for extension work. The press involved in the first cause of action is alleged to be used in the extension division of the university and the other press is alleged to be used in the federally supported work of the university. *414
These allegations as to federal funds are presented in two aspects: (1) They are claimed to exclude the plaintiff from bringing a taxpayer's action, because the money expended is not raised by taxation, and (2) as the money is granted by the United States government it is not for the legislature of the state to say that none of it can be used to pay for printing and supplies necessary or convenient in carrying out the purposes of the grant.
As to (1), Estate of Cole,
As to (2), whether the funds be granted to the board of regents, or to the university, or to the state as grantee, the state in any case becomes the owner of the fund as both the board of regents and the university are agencies of the state to whom the administration of state functions is intrusted. The fund is paid into the general fund of the state and is drawn therefrom upon requisition of the board, and when a requisition is made for payment for services rendered or supplies furnished in course of operations conducted contrary to the statutes of the state, payment may be enjoined in protection of the public interest. This general statement seems to cover the matter sufficiently and no need appears to discuss the particular grants mentioned in the answer. Whether the printing required in administering the funds granted is done directly by the state agencies or procured to be done by the letting of contracts, is no concern of the federal government or its officers or departments. Being intrusted with administration of the funds, the board of regents and the university *415 must administer it in the method prescribed by the statutes, and if the statutes applying do not permit administration in the most convenient and economic or effective way, the administrating agencies must secure statutory authorization before administering it in any other way. Any course of administration contrary to the prescribed course of procedure is illegal, and because it is illegal the public, and a taxpayer acting in the interest of the public, is entitled to take action as was here taken.
The plaintiff has moved for review of the dismissal by the circuit court of the second and third causes of action set forth in the complaint. The dismissal of the third cause of action will be affirmed. So far as the judgment dismisses the second cause of action it will be reversed, with direction to enter judgment as upon the first cause of action.
By the Court. — The judgment of the circuit court entered upon the first and third causes of action set forth in the complaint is affirmed; the judgment as to the second cause of action is reversed upon the plaintiff's motion for review, and the circuit court is directed to vacate its judgment of dismissal and enter judgment as upon the first cause of action. No costs are awarded against either party, but appellant will pay the taxable fees of the clerk of court.