Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1892-10-14
CROUNDSOF
DISSENT.
Justice WinsioW Files His Or IN
ion in the Apportiomtl1
CASE.
Believes he Suit Could be Brought
only by the Attorney
General.
Dangerous Infringement on the
Discretionary Powers of
the Legislature.
Review Of the Apportionment Ac-
ton of the Constitutional
Convention.

Saturday Justice J. 3. Window, of
the Wisconsin supreme court filed his
the other four members Of the court in
the legislative apportIonmenU case. 1t
Is here given i'll 1uIl:
l cannot agree with my colleagues
upon either OF the questions which are
presented i'll this action
First, as to the jurisdiction of the
court to entertain The action. The action
Is an action III equity for an injunction
attempted To be brought by the mere
relation of Il private citizen to redress
Il purely public wrong Gf in fact there
be any wrong without the presence Of
the attorney general. The reIator Suf-
felS no private or individual wrong
different from that in which The public
shares, and he assumes to maintain an
action on behalf of tie people, who
have never placed i'll his hands any
commission for that purpose.
; That Il private citizen ever possessed
any such power to take upon himself,
unDiddcn, the task OF rcdreSSing the
wrongs Of the public by an action Tor
! injunction, at least until the rendering
OF this decision, | most. StrenuouSly
, deny. Not that Il public wrong cannot
be prevented by an injunction III equity;
sucn power has long been vigorously
maintained by the courts of England
and America; but it has always been
maintained with equal viSor that the
remedy must be invoked by the state,
(, through the attorney general, its chosen
law officer, and that Il private citizen
could not of his own motion, constitute
| himself the Self-electeu champion of
the people and stride into the
legal arena declaring i am the
state" and challenge public officials
to justify their acts. The authorities
on the subject of the action i'll equity
by Injunction to prevent wrongs of Il
purely public nature, were fully and eX
haustively reviewed by Chief Justice
Ryan i'll Attorney General V. Railroad
Companies, 80 Wis, 42o, and l could
not hope to add anything to that eX-
Ceedingiy luminous discussion of the
authorities even had | the time at my
disposal to attempt the task. 1t is
true that the exact point here under
discussion was not in issue in that
case, because the action was there
brought by the attorney general; but
the review of tie authorities there
made, shows that the question is not
open to discussion 1t is there treated
us L settled question. The learned
chief justice says, on page 526: 'We
cannot state the rule better than by
taking it from the excellent work OF
Mr.. Brice, 50 recently given to the pro
| feSSlon Under many circumstances,
the court of chancery has, on puDlic
grounds, jurisdiction to prevent cor
pOrationS acting i'll various ways, or
contrary to the intent for which they
| have been created. The public, how
ever, must be represented in al appi-
cations relating to such matters, and
| this is done by the Intervention of the
! attorney general. No single person,
| whether member of the corporation
| in question o1not, is able on his own ac-
count, and of his own motion, to call
| upon the court to interfere for his
special protection" Again, on page
521, he quotes with approval the Ian
gudge of kindersley, Y. C.. as follows:
whenever the interests of the public
are damnitied by company establish
ed for any particular purpose by act
OF parliament, acting illegally and in
! contravention of the powers conferred
| upon it, l conceive it is the function of
the attorney general tc protect the in
terests OF the public by information.
Also on page 543 he quotes with
approval the following language Of
the supreme court of Pennsylvania,
in the case of the Buck Mountain
Coal Company vs.. Lehigh Company, 80
Pa. ST., 81: 1T is plain, therefore,
that a private individual may not, in
the absence of special right or special
authority. yindicate the public for
breach ofduieS owing to her alone. .
1t may not be out OF place to add that
we have no doubt but the remedy by a
bill for an injunction, sued out on the
part Of the commonwealth, by the at
torney general, would lie against a
company to compel them to observe
their charter obligations" The chief
justice further says, on page 529: The
jurisdiction is now clearly defined As
having two branches; one on behalf of
the state for public wrong, and the
other on behalf of private persons, for
private wrong, arising from excess or
abuse Of corporate franchises Relief
against public wrong is confined to in
formations by the attorney general
The language of Chief Justice Gibson,
of Pennsylvania, in the case of Com
monWealth VS.. Burrell, Barr. 81, IS
especially happy upon this point. He
says: The commonwealth has her own
chosen officers for the protection of her
own rights (and the rights of the whole
community are what constitute public
rights or the rights of the common
wealthy, and as she has not explicitly
allowed her office to be assumed by any
one who may please to try his hand Al
the business of prosecution as self-con-
sttuted locumtenens, we dare not as
sumo the power to allow it," It seems
entirely clear to me that according to