Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1892-10-13


king: with I'll humility your majesty
viii best be advised IN this matter by
your MajeSty's counsel. learned in the
law. now standing before YOU Bacon
responded to the effect. that II was for
the king, and not for the court. to de
clare his prerogativeS. l CampbellS
Lives of Chief Justices, pages 1908
Of course in later years no such inter
ference would be allowed. even in
England. 1t might be interesting to
inquire. whether the higher rank of
the lord chancellor. in matters prerog-
ative, did not give him the discretion
airy right to modify and change
the forms of petitions. pIeadings
and Writs in his own court,
which had been prescribed by
himself or his predecessors,
without the consent or even AGAINST
the protest Of the attorney general,
but it is unnecessary. Wisely, govern
mental powers in this country are III
vided between three separate, indie
pendent and coordinate departments
each with powers circmnscribed and
limited by fixed constitutional provis-
ions. ordained and established by the
people themselves in their sovereign
capacity; and hence no such despotic
interference is permissible. 1t was
suggested on the argument by the
learned counsel for the defendant, that
this court possessed the combined pow
ers Of the court of kings bench and
the court Of equity, presided over by
the lord high chancellor. But this
court has repeatedly disclaimed for
itself, and for all subordinate tribunals
in the state any and all perogative
powers exercised by the chancellor, as
keeper of the great seal and as the
representative of the king, except in
sOfar as the same may be incidentally
connected with powers and jurisdic-
ton which are strictly judicial and
conferred upon the judiciary by the
constitution itself. Ruth VS. Ober-
Drummer, 40 Wis, 23S; HeisS VS.. Muir
ply, 10 Wis, 216; Dodge VS.. Williams,
rs Wis, 20; Webster vs.. Morris, 66
Wis, 391; estate of Hoffen, 20 Wis,
SD; VIII of Fuller, 10 Wis, 431. The
same may be said Of every other of
ticr of the state, including the attOl-
ney general. The constitution provideY
that: The powers, duties and com
penSatiOn of the treasurer and attor-
ney general shall be prescribed by
law" Sec. 3, Art. 6. The statute
provides that it shall be his duty to
appear for the state and prosecute or
defend all such civil cases as may be
sent or remanded by that court to
any circuit court; and whenever re-
quested by the governor or either
branch of the legislature to 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 any wise interested" He is
also required ''tO perform all other du-
ties imposed upon him by law"
Sec. 1853, r. S. There are also several
specific duties and powers imposed
upon him by the statute, not material
here. 1t will be observed that his du-
ties in this court are thus prescribed
directly, while in other courts and
before other officers lie is required to
act whenever requested by the gov
e1nOr or either branch of the Iegisla-
ture." 1t was suggested that the
clause of the statute quoted gave to
the governor a sort of perogatiye CON
troll over the conduct Of the attorney
general; but mmlifestIy such control
could not be exercised in opposition to
The dutie.- imposed upon the attorney
general by the legislature Besides
the purpose Of the clause of the stat
ute quoted was to impose otherwise
md9finable duties upon the attorney
general, and not to enlarge the powers
of the governor. Whatever peroga-
tive powers the governor may have,
they can only be such as are incident
to his office and vested in him by the
constitution. All perogative powers not
authorized by constitutional provision
are held in reserve by the people
themselves. We must hold that the re-
fUsal of the attorney general to bring
or consent to the bringing of this suit
did not prevent this court from
rightfully taking jurisdiction of the
same, upon the relation Of Il private
citizen in the name of the state. This
ruling relieves any attorney general
from the charge Of preventing a suit
from an alleged invasion of the sover-
eighty Of the state or the franchises and
liberties Of its people. The present
attorney general certainly has the right
to exercise the judgment and discretion
vested in him by law in the prosecution
of suits in this court as we'll as other
courts.
?. 1t is contended, that this is a mere
political action to effect a political
object" and therefore cannot be main
tanned. We may not understand what
is here meant by a political action"
We readily perceive that the determine
ton of an action may have a political af-
feet, and in that sense may effect a pOlit-
ical object; but that would not neces-
sarily make the question determined 4
political instead of a judicial question
The determination by the court of the
validity of an act of the legislature in
organizing county, town or municipal
ity, or establishing a new form of town
and county government, would undOubt-
edly, have political effect, but no law
yer at this date, would contend that the
question determined was therefore po-
litical and not judicial. In the ATTORNEY
General eX rel BashfOrd V. Barstow,
supra, the late Senator Carpenter con-
tended with much learning and ability,
that the question involved was purely
political but the court held, that it was
strictly a judicial question: and the