Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1892-02-19

case OF State ex rel. VS. Doyle 1.-The sec.
rotary of state Is a ministerial officer, au-
thorized by law to perform different con-
tingencies. If he makes mistakes of facts
in the performance Of his function, thai
action may be void, or voidable only, in
different circumstances; but he cannot ju-
Ideally determine the facts on which he
acts or refuses to act. This can only be
dore by the court, whose duty it is in
proper cases to review his action to de-
termine the facts and his official duty up
on them"
That this court will control in the exer.
else of its original jurisdiction, by man
damus or otherwise, ministerial functions
of the state officers, has been many times
decided.
We say, continued the speaker, this in
junction if granted will not restrain an
election, nor will it restrain the giving
and fling of notices of election of mem
bers of the senate ana assembly. 1t will
only restrain the giving of notices describ
ing the districts attempted to be created
by chapter 482. If granted the notices
could be given under valid unrepeaIed
laws, or under a new law should one be
enacted.
1t was maintained by Col. Spooner that
if the remedy be not afforded, there is
no remedy, in the ma ure of things; and
the prerogative writ given to the court by
the constitution, that it may, in the ex-
ercise of an original jurisdiction, protect
the liberties of the people, becomes, for
the purpose Of preser wing the right of
equal representation, the integrity of
counties, and enforcing the Safeguards OF
the constitution, absolutely impotent. For
if this notice be given, as required 10y
chapter 482, the election of representa-
tives and senators will take place in the
districts thereby attic mpted to be create d
and specified in the notices, and that will
be the end Of 1t; as the Legislature
thus elected will be prevented by
Injunction from assembling, nor will
its acts be void; and there will become
consummated, notwithstanding timely
appeal to this court, crime against
representative government. Sc there is
no remedy, if the preventive remedy which
we ask, be not afforded oy the court.
If the act were invalid only in independ
ent provisions, so that from the districts
constitationally created, lawful leglsla-
ture would be elected, the injunction per-
haps ought not to go, because there would
be a lawful Legislative tribunal created by
the constitution, to Judge of the election
of tie qualification and return of its mem
bers; but this proceeding is a challenge tc
the array, and if the contention which We
urge upon the court as to the constitution
atty of chapter 482 be sustained, it is alb
solr tely null and void.
Col. Spooner then entered into an ex
tended argument to demonstrate the juris
diction of the court-that is, that it hae
power to take cognizance of the subject IL
question. On that point Col. Spooner sale
that with all respect for the learned coun
sci who insists upon this contention, i
seems to be too absurd to admit of argu
ment 1t cannot be denied that it is {
rule so universal as to be elementary. thai
it is judicial function to determine finally
whether in given case, the Legislature
has or has not, transcribed il power I'm
der the constitution.
When counsel assert that this court ba
no right to pass upon a q uestlon as t.
whether, In the passage Of chapter 1872, the
legi stature has violated the constitution
he certainly takes upon himself the burden
of establishing an exception to the rule. L
al apportionment act sucl
an exception? The constitutions
provisions were then quotee
after which it was said that no sub ject
received more extended or careful coasid,
Grafton at the hands of the trainers of the
constitution than did the sections relating
to opportionment and re-districting tht
state into senate and assembly districts
Nc subject was more entitled to the grave
and anxious consideration of the Trainer!
of the constitution than this, for equality
in representation not only lies at the
foundation of representative government
hut is itself, in large sense, representa-
tive government. Around the exercise Of
no Legislative power is there thrown
by the constitution so many
safe guards. Manifestly it was moi
intended to be left to the legislature-pos
sibly to be swayed by partisan impulse
possibly to become the prey of politica
gamblers, to pursue its own sweet will
or caprice in apportioning and re- district
ing the members of the senate and assem-
bly,.
These provisions, so carefully framed
are not directory; they are mandatory and
they must be so held. It is true thai
courts have sometimes held statutory pro-
visions to be directory. This doctrine,
however, has its birth in necessi.
y. It is sort of judicial legis.
lation, justified only by the
necessities of the case. This court has
accurately and we'll defined the law as to
directory statutes. in the case of State vs.
Lean, 8 Wis, 27o and has well drawn