202 Wis. 69 | Wis. | 1930
The first question presented is whether or not the court should grant leave for the commencement of the action. The situation presented by the facts in this case is certainly novel. The governor having appointed counsel upon the petition of an elector, the one accused of a violation of the act seeks a dismissal of the action before it is begun. If the circuit court was without power to dismiss the action, then it acted in excess of and beyond its jurisdiction and it is within the constitutional power of this court, in the exercise of its general superintending control granted by sec. 3 of art. VII of the constitution, to restrain the circuit court. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081. If the situation is as stated, then by the authority of State ex rel. Kellogg v. Gary, 33 Wis. 93; State ex rel. De Puy v. Evans, 88 Wis. 255, 60 N. W. 433; State ex rel. Att'y Gen. v. Circuit Court, 97 Wis. 1, 72 N. W. 193; Petition of Inland Steel Co. 174 Wis. 140, 182 N. W. 917; State v. Fischer, 175 Wis. 69, 184 N. W. 774, and other cases, it is considered
The next question involves the merits of the case. In State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N. W. 895, we had occasion to consider the provisions of ch. 12, Stats. (Corrupt Practices Act). The act is there outlined and it is not necessary to restate it here.
Was the court without jurisdiction to enter the order of May 29, 1930? By the statute, ch..260, remedies in courts of justice are divided into (1st) actions and (2d) special proceedings. An action is defined as “an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Every other remedy is designated as a special proceeding. The distinction between actions and special proceedings is pointed out in Deuster v. Zillmer, 119 Wis. 402, 97 N. W. 31, and State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046. While the term special proceeding is used in sec. 12.22, the procedure provided for is that appropriate to an action and the remedy prescribed falls within the statutory definition of an action. The word proceeding is undoubtedly used in the same general sense it is used in title XXV in the Statutes, to wit, “Proceedings in Civil Actions in Courts of Record.” It is provided by sec. 262.01 that a civil action in a court of record shall be commenced by the service of a summons. No summons has ever been served in this matter. It is very skilfully argued in this case, however, that the filing of the petition with the governor is the commencement of a proceeding; that the statute contemplates but a single special proceeding which shall be initiated by the elector’s petition and terminated by judgment, and that the circuit court obtained jurisdiction of such special proceeding when the governor found on the 3d day of April, 1930, that there was probable
It is further argued in support of the order of May 29th that the petition of Henry A. Huber filed in the circuit court for Dane county should be treated as a petition for a writ of mandamus on the theory that the attorneys appointed by the governor are public officers and may be compelled to perform their duties as such. It is considered that this contention is answered by the provisions of the statute itself. Sec. 12.22 does not limit the time within which the elector may file a petition with the governor, the county judge, or the attorney general. That is left to the determination of the elector himself. The judgment sought being one in the nature of ouster, the right to enter a complaint would certainly expire with the term of office of the person accused of the violation of the act. The time within which the gov
A consideration of all of these matters resulted in the conclusion announced in the mandate already filed.