Mineral Point tribune. (Mineral Point, Wis.) 1869-1938, 1892-02-13


restrained
Col Birds Powerful Argument.
Col. Geo W. Bird also spoke in behalf
of the relator, bat be began BY insisting
upon the questions Of the merits Of the
case being heard at this time The court
thereupon took recess till p. N. in or
der to attend the funeral Of the late J c..
Gregory. Upon reassembling it announe-
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.
After paying touching euloqy to the
memory of Mr. Gregory, Col. Bird
launched forth into powerful argument.
He maintained that the question involved
Is one Of public right aud therefore the
relator is not required to have an indi-
vidual or private interest separate from the
general public in the subject matter and
relief sought; but any citizen of the state.
whether having a private Interest or
not, may be relator. Numerous
citations were made on that point, and 10
the laymau it seemed TO have oaen pretty
well disposed o. In fact. Col Birds
argument was chock full Of meat in the
form OF authorities, to give which would
take columns Of space.
The doctrine that the relator need have
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
ez rel Drake We. Doyle secretary of
state, 40 Wis, 185, it was commended 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 al all
material and said So far as the private
right Of the relator Is concerned. it is now
we'll 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-
yate rights Of the citizens often meet, and
may well be involved in a 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 in 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 thore 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 quod ad
statum reipubIicae pertinet one effectiug
the sovereignty of the state, its franchises
or perogitIves And or this question
there appears to us to be no room for
doubt.
In that case this court, co ntinued 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 action of the same officer 10y
There the secretary refused
to discharge his duty under a valid stat.
ute Here he threatens to act in matter
Of great public concern under an Invalid
statute In the former case this court
interfered to compel him to act
under tle valid statute. and
upon the same principe will inter.
fere to restrain him from acting under a
void statute In both cases the question
involved is one of public rigdt appealing
strongly to this court and IT'S original ~
risdietion, The language of the court 10
that case is peculiarly appropriate as APP
plying 10 this 1t Is there said:
Whether the respondent be right or
wrong in his view, and talt is for this
court, rot for him to determine,
it is very certain that it c1ncars the state
at large, that one Of It's principle Off
Ger executes ms office in positive and de
hberate disregard Of a public statuts dehn-
ing its duties. Such a case, wa N pre-
scented, is one eminsntly calling for the
exercise Of our original jurisdiction; one.