State ex rel. Fulton v. Zimmerman

The following opinion was filed October 11, 1926: Stevens, J. 1. The briefs present the question whether the case is one in which this court ought to exercise its original jurisdiction. The case ■ involves the right of the legislature to secure an expression of opinion by the entire electorate of the state upon a question of great public interest and of vital importance to all the.people.of the state. Nothing could more vitally affect the sovereignty of the state, its franchises and prerogatives or the liberties of its people than to deprive the people of the state of the right to express their will at the ballot box. This-right is one of the foundation stones upon which democratic government must rest. An unwarranted attempt to check the free expression of opinion, to forbid the peaceable. assemblage of the people at the. ballot box or to obstruct the freedom of elections, if successful, would result in the overthrow of all liberty [14] regulated by law. Thompson v. Mahoney, 136 Ill. App. 403, 405; Power v. Ratliff, 112 Miss. 88, 72 South. 864, 866. The case does not concern the rights of private suitors, but the right of the electorate of Wisconsin to express its will at the ballot box as well as the right to have the ballot protected from intrusion thereon of a question which it is alleged may not legally be placed thereon. The relator seeks to control the action of state officers as to a matter which affects the interests of the people of the state at large on the ground that these officers are proposing to act under an invalid and unconstitutional expression of the legislative will. Because of. the brief time that will elapse before the election there will be a denial of justice unless this court assumes jurisdiction, because otherwise there can be no final determination of this matter until after the election is held. Very clearly this is a case in which the original jurisdiction of this court can be and ought to be exercised. Income Tax Cases, 148 Wis. 456, 498, 499, 134 N. W. 673, 135 N. W. 164. 2. The demurrer admits the allegation of the answer that the entire expense to the state incident to the submission of this question to the.people will not exceed fifteen dollars. Manifestly this sum is too trifling in amount to warrant a court of equity in enjoining the submission of this question, even if it should appear that such submission will result in the illegal expenditure of that amount of the taxpayers’ money. ' 3. The relief which the relator seeks is that this court shall nullify the action of a co-ordinate branch of. the state government upon a purely political question because: First. These resolutions submit a question that is not within the scope of the legislative function of a state. Second. That, if within the legislative function of a state, the legislature has no power to submit such a question by [15] a joint resolution; that such submission must, be by-an act of . the legislature passed in the' form and in the manner prescribed by the constitution for the enactment of a law. First. The objection that the-'resolutions submit a question that is not within the scope of the functions of the state legislature is based upon the ground that the result of the referendum will not aid -the legislature of Wisconsin in the performance of its functions, inasmuch as Congress alone has the power to pass the legislation outlined in this question. In determining whether the legislature has acted outside the scope of its legislative functions we must approach that question with the deference, which is due the action of a co-ordinate branch of the state government,— with the purpose of sustaining the action taken by the legislature if possible by any reasonable construction of the action taken or by any reasonable construction of the constitution. All doubts as to the power of the legislature to act in this matter or as to the legality of the action taken must be solved in favor of the validity of the action of the legislature. The courts cannot interfere with such.legislative action unless it is clear that the action taken is contrary to some mandate of the constitution. Viewing the resolutions in this light, we have no doubt of the power of the legislature to submit this question to a vote of the people of the state. ! The federal government is our government none the less because we have a subordinate independent government of o.ur own within it. The people of Wisconsin have a right to express their will to their representatives in Congress as well as to their representatives in the legislature. The enforcement of the prohibition amendment lies within the field in which the legislature has concurrent power with Congress. The particular legislation outlined in the question submitted must be enacted by Congress because it calls for an amendment of a federal act. But it by no means follows that an expression of the will .of the voters upon this particular [16] question will not give the legislature of Wisconsin information which will aid it in the proper discharge of its duties in the exercise of its concurrent power to pass appropriate legislation to enforce the Eighteenth amendment. Second. It is not necessary to determine whether the legislature has the powrer by joint resolution to impose the duty upon the secretary of state of submitting this question to a vote of the people, unaided by any general law requiring such submission, because the legislature has by secs. 6.10, 6.19, 6.22, 6.23, 6.68, and 6.71 of the Statutes effectively prescribed every step to be taken in the submission of this question to a vote of the people. These sections are a part of the general laws of the state passed in full compliance with every mandate of the constitution prescribing the method of enacting laws. When the legislature designates the question that is to be submitted to the people, these statutes prescribe what the secretary of state shall do to carry out the will of the legislature. Sub. (8), sec. 6.23, of the Statutes expressly imposes the duty on the secretary of state .to submit such questions when their submission is directed by resolution as well as by act of the legislature. The constitution vests the legislative power in the senate and assembly-. The only limitations upon the exercise of-that power by the legislature are those found in the state and federal constitutions. Neither constitution prohibits the use of a joint resolution for the purpose of designating questions to be submitted to the people. Among the commonly recognized inherent powers of all legislative bodies is the power to express the legislative will by joint resolution.upon all matters which the constitution does not require to be adopted with the formalities prescribed as essential to the passage of a law, . Relator urges that joint resolution 74 performs the function of a law in that it prescribes the manner in which this question is to be submitted to the people, and that it is [17] invalid because the legislature did not comply with the provisions of the constitution prescribing the form and the manner of enacting a law. Even if the position of the relator be sound — a question not determined, — still it does not follow that the relator is entitled to the relief demanded. Joint resolution 42 was not repealed by joint resolution 74. Joint resolution 74 was passed for the purpose of giving force and effect to joint resolution 42. Joint resolution 42 does not attempt to perform the functions of a law, but is confined to a single function of - designating the question to be submitted. When that joint resolution was passed, ch. 6 of the Statutes made it the duty -.of the secretary of state to take the steps essential to put this question upon the ballot at the coming November election. It follows that the relator is not entitled to the relief demanded and that his demurrer to "defendants’ answer must be overruled. By the Court. — So ordered.