Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1892-10-13
REASON OF
THE COURT
Opinion in the Second Legislative
Apportionment Case
Filed.
Justice WinSlOW DisSentS From
the Conclusions Found by
His Associates.
Jurisdiction, Political Action
and Other Features
Discussed.
The Document is Prepared on Be
half OF the Court BY JUS
tee CasS0day.

Friday afternoon the Wisconsin su-
Dreme court filed its opinion holding
the legislative apportionment act of
1892 void. 1t was written by Justice
Cassoday. Justice Winslow dissents
from its conclusions. The following is
the opinion in full:
Counsel Tor the defendant challenges
the jurisdiction OF this court i'll this
cause, anu supports such contention with
much learning and ability. Tie ques-
ton OF the Original jurisdiction OF power
OF this court under Sec Art. I OF lue
constitution, TO issue WritS oil nabeaS
corpus, manddmuS, Injunction, quo
WalrantO, ceruOrali, and other original
and remedial WIltS, and 10 hear and de
tcrminC the same has frequently been
considered by this court. The Attorney
General V. Blossom, l Wis, 317; The
Attorney General eX rel Basnford V.
BarstoW, 4 Wis, 56I; State eX rel At
t0Incy General v. MesSmore, IL Wis,
1l5; Cooper v. The City of Mineral
Point, 81 Wis, Isl; The Attorney Gen
eraI V. Railroad Companies, 50 Wis,
425; The Attorney General V. The City
of Eau Claire, 81 Wis, 100; State eX rel
Wood V. Baker, IS Wis, Il; State GX
rel Cash V. The Supervisors of Juneau
County, IS Wis, GOT; The State eX rel
Drake V. Doyle, 40 Wis, 1I0; Petition
of Semler, IL Wis, 522; IN re Ida Lou
iSa Pierce, H Wis, al; The State V.
The st. CroiX Boom Cor, 90 Wis, $50;
The State eX rel Attorney General V.
Cunningham, 81 Wis, 44O, S. G. 81 n.
w. Il; State eX rel Raymer V. Cunning
ham, 81 n. W. Il. Wis 1888. Most, if
not all of these cases were argued with
great learning and ability, and then
carefully considered by the persons con
sdtuting the court at the times they
We're respectively submitted; and hence
must be regarded not only as highly
persuasive, but as absolutely binding
upon us rs authority.
CONSCIOUS of the Importance of the
case at bar, we have diligently sought
the guidance of the recorded opinions
of the court in the cases cited, 50 far lis
SionS reached-and none more 50 than
the uttcrances of the late learned and
able Chief Justice Ryan. Among the
propositions 50 firmly established rs TO
require no further exposition from this
court, are those to the effect that the
constitutional clause quoted, was de-
signed to give this court original iUris-
diction Of Ill judicial questions affect
ing the sovereignty OF the state, its
franchises and prerogativCs, or the lib
critics of its people" that such preroga-
tive WritS, including Injunction, as Il
quasi prerOgatiye writ, can properly
issue only ut the suit of the state, or
the attorney general in the right of the
state; that in matters strictly publici
juriS i'll which no one citizen has any
right or interest other than that which
is common to citizens in general, Il pc
tition by Il private person for leave to
commence an action in this court in the
name of the state cannot properly be
considered until the attorney general
has been requested to move in the mat
ter and has refused or unreasonably
delayed to do so;" that in all cases in
which an exercise of such original jur-
iSdiction is sought, whether by such
private citizen or the attorney general,
leave must first be obtained from this
court upon a prima facie showing, that
the case is one calling for the exercise
of such jurisdiction; that the official
acts of the secretary of state in issuing
or publishing notices of an election of
members of the legislature under an
apportionment act, alleged to be in
valid. are purely ministerial and hence,
in The ,-tHCiSe of such original iuliS-
tlicIiOn his court may control the same
either nandamus or injunction as
the eXigenlies of the case may require
We do not understand counsel for the
defendant to question the correctness
of the decision in The State eX rel At
(Crney General V. Cunningham, 81 Wis.
40; and hence it is, in effect, conceded,
that the court has jurisdiction of the
Subject-matter of the case at bar.
The precise objection to the jurisdic-
ton here presented, is, that its exercise
has not been invoked by the attorney
general; and hence that the court is
powerlesS to consider the case at all
without his consent and cooperation.
In State eX rel Wood VS.. Baker, IS
Wis, SOL, Ryan, C. J. said: ''The
jurisdiction conferred on this court by
the constitution is of infOrmationS in
the nature of quo warranto. as sub
stituted in modern times for the
use of the ancient writ itself, and as
used when the constitution was framed
This was prerogative proceeding.
quasi criminal and quasi civil in its char
acter, according to its use, but always
claSsed with criminal informatiOns.
The mode of proceeding under this
jurisdiction might be regulated by
statute, but the jurisdiction itself could
not be defeated or abridged. II
was undoubtedly competent for tho
legislature to give a quasi civil pro
ceeding in such cases, but not to abolish
the quasi criminal jurisdiction vested
in the court by the constitution. This
appears to us to be a matter of sub