State ex rel. Haven v. Sayle

Winslow, C. J. We have no doubt that the trial court was right in holding that the mayor and holdover aldermen constituted a de facto canvassing board. They were in undisturbed possession of the office, assuming in good faith to exercise, and in fact exercising, all its functions, and no one even questioned their title. Hence their canvass was valid and a recount may properly be had. State ex rel. Dunn v. Noyes, 87 Wis. 340, 58 N. W. 386; In re Woolcott. 163 Wis. 34, 157 N. W. 553. We are further of opinion that the provisions of the charter are not affected by the provisions of sec. 10.42, Stats., and hence that the de facto board was the de jure board as well. Sec. 10.42 first appeared in its present shape in ch. 385, Laws 1915, which was purely a revision law having for its object not a change in the law in any respect, but simply to revise all the general laws of the state relating to local elections and embody them in a single new chapter. Prior to this act the section in question had been sec. 925 — 268 of the Statutes, first appearing as sec. 268 of ch. 326, Laws 1889 (the general city charter law). It declared simply that the council of each city should meet at a certain time and canvass and declare the result of the annual municipal election. It did not apply to cities acting under special charters, but only to those organized under the general law. When in the course of the topical revision of the statutes now in progress it was decided to group all the statutes relating to elections in ch. 10; this section and others relating to municipal elections were collected together by ch. 385 before mentioned, and the words “except as otherwise provided by law” were prefixed to the section, in order to make it clear that it applied, as before, to cities acting under the general charter only. Hence the mayor and holdover aider-men constitute the proper canvassing board of the city of Madison; and this not only for the regular muhicipal election, but also for a referendum election such as the present, [163] because the charter provides for the holding of special elections and the making of returns in the same manner as annual city elections, and, furthermore, sec. 1565a-, Stats., governing license referendum elections, specifically provides for the canvassing of returns as in case of other city elections. The respondents challenge the right of the attorney general to bring this action without authority from the governor. Strictly speaking, probably this question should be raised by demurrer, but inasmuch as it has been fully briefed and argued without objection it seems proper to consider it now.' As pointed out in State v. Milwaukee E. R. & L. Co. 136 Wis. 179, 116 N. W. 900, the powers of the attorney general are limited by statute, and he must find authority in the statute when he sues in the circuit court in the name of the state or in his official capacity. The appellant relies on sec. 3236 of the Wisconsin Statutes, which authorizes the attorney general to bring action in the name of the state to restrain a corporation from exercising any franchise, liberty, or privilege not authorized by its charter, or to restrain individuals from exercising corporate rights, privileges, or franchises not granted to them by law. We cannot regard this section as applicable. Its purpose is to prevent usurpation, i. e. the exercise of corporate powers which have never been granted. Here the power to make the canvass ha-s been granted, and the only question is which city officials are empowered to exercise it. Were the case within the original jurisdiction of the supreme court, i. e. were state officers charged with violation of law, and were the attorney general filing an information in equity in this court to restrain such act, the suit might be entertained simply by obtaining leave of court, but this results from the grant of prerogative jurisdiction to this court by the constitution, as explained in the case of Att’y Gen. v. [164] Railroad Cos. 35 Wis. 425. See, also, Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164. While the action is .publici juris it is purely of local concern and the remedy in the lower courts is ample, hence it is not within the original jurisdiction of this court as that jurisdiction has been defined. Turning to the general duties of the attorney general as to actions in the lower courts, we find that “when requested by the governor or either branch of the legislature” he is to appear for the state and prosecute or defend actions in those courts in which the state is interested. Sec. 14.53, Stats. 1917. No such request appears in the present case, nor are we referred to any other section giving him authority on his own motion to commence such an action as the present on behalf of the state in the circuit court. Our conclusion is that such an action as the present, if brought by the attorney general in the circuit court, must be brought on request of the governor or one branch of the legislature. Other points are made by the appellant, but are not deemed well taken and are overruled without discussion. It follows that the in junctional order was rightly dissolved as to the mayor and holdover aldermen, but as to the newly elected aldermen it should have been retained in force, and the order appealed from must be modified accordingly. By the Court. — Order modified as indicated in the opinion, and as so modified affirmed, without costs.