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

brook made an argument for the relator,
Adams county. He discussed the matter
of the original jurisdiction of the court,
holding that the exact question here pre-
sented is in measure new in the juris-
pru. ence Of the country. The relator he
said, Is seeking TO invoke the original
juris fiction of this court to the end that
judgment may be rendered enioining
the secretary of state from performing a
ministerial duty upon the ground that
the law which commands the perform
ance of this act is unconstitutional
The use Of the writ of iniunc-
ton for the purpose sought is
practically new to the courts and the
bar. In the able discussion of the subject
in the railway cases (35 Wis, 500 Chief
Justice Ryan very forcibly and clearly
points out the benefcent purposes to which
in the exercise OF its original jurispiction
this court may put this writ. It is suf
fcient to refer to that opinion for dis
cussion of the subject. The spirit of the
prophet seems to bave moved him when,
near the close Of his mastery discussion
he concludes ''And we have lily expressed
ourselves and lily applied the authorities
quoted If we have not already made it
apparent that we consider this juris iiction
of this court a necessary and most salutary
one for the preservation of public right
and public authority"
Col Birds Powerful Argument.
Col Geo. w. Bird also spoke in behalf
of the reIator, but ne began by insisting
upon the questions of the merits of the
case being heard at this time. The court
thereupon took a recess till 3 p. N. IL or
der to attend the funeral of the late J. e.
Gregory. Upon reassembling it announc-
ed that for the purposes Of this argument
The court would consider the motion of
Gen. Bragg to dismiss in the nature OF a
demurrer and would hear all proceedings
which might belong to such.
The doctrine that the relator need haye
40 individual interest in the subject mat
ter where the question involved is one of
public right is thoroughly established by
this court, said Col. Bird. In State
ex rel. Drake VS.. Doyle, secretary of
state, 40 Wis, 1876, it was contended that
the relator had ceased to have any interest
in the matter and therefore could no longer
maintain the writ. The court held that
the fact as to his interest was not at all
material and said: SO far as the private
right of the relatOr is concerned, it is now
well settled that this court would not
assume original jurisdiction to enforce
it, But, as Said in Attorney General VS..
Railroad Cos, In a government like
ours, public rights Of The states and pri-
vate rights Of the citizens often meet, and
may we'll be involved in single litigation.
So it may be in the exercise of the original
jurisdiction of this court. The preroga
tive writs can issue only at the suit of the
state or the attorney general ia the right
of the state They may go on
the relation of private person, and
may involve private rights. And the
question before US is not upon the private
right of the relator, and is Independent of
the accident that there is a relator Ia the
case. The question on which the exercise
of jurisdiction must turn is whether the
subject matter of the writ is one auod ad
statum reipublicae pertinet: one effectiug
the sovereignty of the state, its franchises
or perogitlves. And on this question
there appears to US to be no room for
doubt
In that case this court, continued Col
Bird, interposed to control the action Of
the secretary of state by mandamus, as it
is sought here to have it interpose to
control the acton of the same officer by
Injunction. There the secretary refused
to discharge his duty under valid stat.
ute. Here he threatens to act in q matter
of great public concern under an invalid
statute. In the former case this court
interfered to compel him to act
under the valid statute. and
upon the same principle will inter
fere to restrain him from acting under a
void statute. In both cases the question
involved is one of public right appealing
strongly to this court and ITS original ju-
risdiction. The language of the court in
that case is peculiarly appropriate as ap,
plying to this. It Is there said:
Whether the respondent be right or
wrong in his view, and that is for this
court, rot for him to determine.
It is very certain that it concers the state
at large. that one of its principle Off
Ger executes his office in positive and de-
hberate disregard of public statute defn-
ing its duties. Such case, when pre-
sented. is one eminautly calling for the
exercise of our original jurisdiction; one,
with or without reiator, eminently fl TO
be presented to the court for adjudication
The writ OF mandamus, IN such 8 case,
emineuty serves It's function as preroga-
tire writ
We therefore submit, said the colonel.
that under these authorities and the well
established rule in this state. whether or
not either of the REALTORS have any in3i-
vidual interest in the subject matter of