State ex rel. Rosenhein v. Frear

| Wis. | Feb 24, 1909

Per Curiam.

The foregoing covers all matters of any possible moment stated in the bill. The court takes the application for leave to use the original jurisdiction of the court, deciding the preliminary question of judicial power, and passing beyond that, further matters being regularly reached, to and deciding the question of propriety of granting the application, resting the result on the sufficiency of the bill in all' respects as if it were challenged upon general demurrer.

The court is of the opinion:

First. If the secretary of state -and state treasurer were-about to take such action as to disburse state moneys for illegitimate purposes, it would be within the competency of' this court, in the exercise of its original jurisdiction, to entertain an equitable action to prevent it on the initiative of’ a taxpayer, the attorney general refusing, on proper request, to act in the matter.

Second. Sound judicial policy precludes the court from considering the question of the constitutionality of a legislative act unless a decision respecting its validity is essential to-the determination of some controversy calling for judicial solution.

Third. The legislature has very broad discretionary po-wer-to investigate any subject respecting which it may desire information in aid of the proper discharge- of its function to-make or unmake written laws, or perform any other act delegated to it by the fundamental law, state or national, and to proceed, with that end in view, by a duly authorized committee of one or both branches of the legislature and to incur reasonably necessary expenses, payable out of the public funds.

Fourth. The workings of the primary election law for the selection of party candidates for the office of United States senator, including the conduct, legitimate or illegitimate, of persons voted for, or voting at such election, as bearing on the policy of retaining or amending such law or the advisory force of its result in the given case, is a proper subject for legislative inquiry independently of whether the law is valid or not. Such expenditure is not to be regarded as incurred in. the administration of an unconstitutional law.

Fifth. The result of the second and fourth points in this opinion is that no emergency is now presented requiring the court to determine whether the primary election law so affects the absolute discretion conceded by counsel to have been lodged with the members of the legislature by the national constitution respecting the election of United States senators as to be invalid, and therefore the court leaves such question undetermined and without intending to cast any doubt whatever upon the validity of the law. The same is true as to whether the law infracts the right of public assembly and consultation for the public good guaranteed by sec. 4, art. I, of the state constitution.

Sixth. In any event, the resolution cannot be regarded as a mere attempt to administer a void law, because it is broad enough to cover the field of legislative inquiry respecting the policy of such laws, regardless of whether the particular one is valid or not.

Seventh. A legislative investigation duly authorized in the course and in aid. of ordinary legislative business does not create a debt within the meaning of sec. 8, art. VIII, of the state constitution, requiring, upon the passage of any law creating a state debt, the question to be taken by yeas and nays, three fifths of all the members elected to the house in which, the taking occurs being present, and the vote to be entered upon the journal. The term “debt” as used in such section refers to matters of the sort mentioned in the preceding sec. 6, not to mere ordinary legislative expenses.

Eighth. The act appropriating money to defray the expenses of the investigation does not violate sec. 2, art. YI, of the constitution, making the secretary of state the state auditor, because it requires the expense accounts to be audited as provided by sec. 127, Stats. (1898), which'provides for the auditing of like expenses by the secretary on a certificate of the chairman of the committee of the facts to which the legislative fee bill is to be applied in the given case. Uo auditing authority, strictly so called, is thus conferred upon the chairman of the committee.

Ninth. The purpose of the investigation being to obtain information for legislative guidance, it is public, not private.

Tenth. A legislative investigating committee charged with the duty of gathering and reporting information for legislative guidance is not a judicial tribunal 'within the meaning of the constitution.

Eleventh. A legislative investigation, regularly instituted, for the purpose of securing information for legislative guidance, is within the domain of public purpose and general interest, as distinguished from a mere political party purpose and interest, though it may have political aspects and be dominated by members of one political party.

The foregoing covers all matters of moment suggested by the bill, and the result is that such bill does not state facts sufficient to constitute a cause of action for the interference sought, and therefore the application must be denied.

The application is denied.