Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1892-10-07
Leave Asked to Put in all Answer
iii tie Gerr, nlander
Case.
Senator Villas Addresses the Court
and Submits the Docu-
Inpnt.
Mollon is Iahen Under Advise
lntnt and Finally
Denied.

The SUI RENE court room was agalu
crowded t,rIu;Iy morning when, under
the ruling OF. the court III the appor-
tionlnent case, the secretary OF state
WAS TO have an opportunity to ASK
leave to put III an answer. Senator
! Villas, representing the secretary, Was
present, us WAS also Col. Bird anu
Gen. EStaDrooA. At 10 O'Clock Sena-
tor Villas arose and, addressing the
court, said:
Il consider it my duty, under all the
circumstances OF this case, to prepare
and submit an answer. Perhaps il
l had had the opinion of the court be-
fore NE, or if l could have been au-
! tnoritatively advised of the extent to
which it goes and its limits, L might
have felt that there was 40 occasion
to further attempt to present the case
OF the legislature. In the words which
the chief justice used i'll his reply to the
inquiry l had the honor to address to
the court Oh Tuesday, there were init
nations OF Il view by the court which
, would render answer unnecessary and
useless But L could not be author
lied 10 assume that those limitations
would become the permanent judS
ment Of The court, L0r that L correctly
understood what might be intended.
L could not So deal with the legislature,
nor with the interests of the people,
which ale concerned in this case.
I'm endeaVOring to determine the
course TO be pursued, it is necessary to
consider what conclusions the court
may have arrived at, and OF course, i'll
the absence of amy authoritative express
sion, [ can only deal with the argument
OF the learned counsel for the relatOr.
/ II | understood their position there was
concurrence i'll the idea that they Were
inviting this court TO review the dis
: cretion OF the legislature, which to ME
appears al illegal and Il dangerous as
sumption. Ii THAT be the position,
! then upon What basis is the legislative
discretion to be reviewed! Is it To be
/ done only on the basis OF such facts
as the COURT can take judicial notice
OF? l took that to be, possibly, the
intimatiOn OF the court, with reference
to the propriety and possibility of re-
ceiymS an answer, that the legislative
discretion can be reviewed only upon
facts Of which the court may take
judicial notice. Then we have this eX-
traordinary position, that the constitu-
ton of the state has committed dis
cretlon to the legislature and not given
the power of appeal from it, and yet
the court will review that discretion;
and still further, that the court will
review that disc& lion on less foun-
| dation Of facts than those which were
before the legislature itself, that is
upon such facts only as the court can
take judicial notice of, while the legiS-
lature, being invested by the consti-
! tuition with u discretion to be used
for the public good, might pursue such
inquiries dis i'll its judgment would lead
to Il wise exercise of that discretion.
Therefore it seems to me il
cannot be that the argument
can be approved OF adopted,
that the court can review the IegiSil-
tive discretion at all; and still less the
further position which IS pressed IN
the brief OF REALTORS counsel, especially.
with great force, as L once pointed out
to the court, in the very able and adrOit
brief Of my learned friend Nh. Greene,
that the court would determine the in
validity of the act of the legislature Dy
determining that it had Intentionally
and therefore Wilfully departed from
| the constitution in the exercise of this
discretion, that it had not exercised Me
discretion with which it was invested
according to the principles which the
constitution contemplated should cC1
troll the exercise of the discretion Wen,
! if that idea can be entertained, then as
SuredIy it seems to me that an answer
! is necessary. Because, that this court
would charge the legislature with inten.
tional violation of the constitution,
without making amy inquiry into thu
facts which may have influenced its
determination, would seem to be carry
ing the assertion OF judicial power be
You'd warrant which can be found for
it anywhere. 1t is aSSuredly Il fact, 9
fact which l meant Gf the argument
had proceeded as l supposed was its
natural order) to have reinforced by
numerous citations Of authority. [
think it is q fact that there is no author
ity whatever in the books that the court
can review the exercise of the diScre-
ton of the legislature (conStitutiOnally
committed to it, and | have not under
stood this court to take that view at
all III the former opinion. The court
found a positive mandate or prohibit
ton and found that positive prohibition.
with respect to which the constitution
gave the legislature no discretion. VIC
lated and crossed in repeated former
instances by the legislature So it was
held unconstitutional. 4 perfectly nat
ural position to take after the iurisdic-
ton to inquire was aScertained.
"Now upon this idea present by the
answer which / offer and ask leave to
file OIL behalf of the secretary of state
representing the legislature, such facts
as illustrate what the legislature might
properly consider in the exercise of
the discretion with which the consti-
tuition invests it, and such facts as
must exculpate the members of that
body from the accusation of Intentional
willfulneSs in departing from the con-
stituion.
BY agreement between counsel, the
anwer is to be presented without formal
motion. subnittd to the court, and by
agreement also with my learned friend
Col. Spconer yesterday, to whom l