Opinion
June 9, 1950 —
June 30, 1950.
APPEAL from an order of the circuit court for Dane county: HARRY S. FOX, Circuit Judge, Presiding. Affirmed.
For the appellants there was a brief by Kersten McKinnon of Milwaukee, and oral argument by Charles J. Kersten.
For the respondent there was a brief by the Attorney General, William A. Platz, assistant attorney general, and Robert W. Arthur, district attorney of Dane county, and oral argument by Mr. Platz.
The circuit court overruled the defendant's motion to quash an alternative writ of mandamus and granted plaintiff a peremptory writ, which was issued November 16, 1949, commanding defendant to proceed with the preliminary examination in the criminal case of State of Wisconsin vs. Milton T. Murray.
The district attorney of Dane county, upon complaint in due form, brought a criminal action in the superior court against Milton T. Murray, charging him with violation of the so-called "lobby law." The complaint alleged violation of sec. 346.245, Stats., in failing to file reports of expenditures made by the defendant in connection with his activities as a lobbyist, and violation of sec. 346.24 in entering into a contract with his employer upon a contingent-fee basis.
Upon arraignment defendant entered a plea of not guilty, was admitted to bail, and objected to the prosecution by the district attorney of Dane county upon the ground that the district attorney is without authority to conduct such prosecution.
After hearing counsel and examining briefs submitted the superior court concluded that the district attorney had no authority to prosecute and ordered the action dismissed. Application was then made to the circuit court for a writ of mandamus to compel reinstatement of the action and further proceedings upon the complaint. From an order of the circuit court directing reinstatement this appeal is taken.
Counsel for appellant contends that because sec. 346.26, Stats., provides, ". . . It shall be the duty of the attorney general upon information to bring prosecutions for the violation of the provisions of sections 346.20 to 346.27," the authority given to the attorney general to prosecute violations of this law is exclusive.
Counsel cites Wisconsin Gas E. Co. v. Fort Atkinson (1927), 193 Wis. 232, 213 N.W. 873, and Fox v. Milwaukee Mechanics' Ins. Co. (1933), 210 Wis. 213, 246 N.W. 511, to the effect that special provisions of the statutes are controlling over general provisions. There is no doubt of the existence of such rule; the question is whether it has any application to this case.
The statute places a direct burden upon the attorney general to proceed with prosecution in cases where information reaches him. There is, however. nothing in the wording of the statute which indicates any intention on the part of the legislature to deprive a district attorney of the right or duty to proceed in such case where information of a violation reaches him.
Sec. 14.53, Stats., so far as material here, provides:
"The attorney general shall:
"(1) when requested by the governor or either branch of the legislature, appear for the state and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people thereof may be in anywise interested."
Sec. 14.531, Stats., provides in part:
". . . In any criminal action prosecuted by the attorney general, he and the deputy and assistant attorneys general shall have the same powers with reference to such action as are vested in district attorneys."
District attorneys are the prosecuting attorneys of their respective counties.
This court, in State v. Peterson (1928), 195 Wis. 351, 355, 356, 218 N.W. 367, said:
"It will be seen from these statutory provisions that the legislative scheme was and is that the district attorney shall prosecute all criminal actions in the courts of his county, and that where he is not able to do so for any reason the court shall appoint some suitable person in his place to prosecute. It will also be observed from the statutory scheme that it provides for every contingency that one can think of wherein the district attorney needs aid and where it may properly be given him and in what manner it may be given. In the prosecution of criminal actions the district attorney prosecutes for public wrongs, not for private wrongs, and such prosecution should be by a public officer and not a private party. This court has from its earliest days given full effect to our statutory scheme and has declared it to be the public policy of the state."
We are of the opinion that the language quoted from sec. 346.26, Stats., evidences an intention of the legislature to impose an additional duty upon the attorney general to the end that all violations of the lobby statute should be prosecuted, and not to alter the district attorneys' duty to proceed in cases of violation occurring within the counties of their jurisdiction.
The duties resting severally upon the district attorney and the attorney general are simultaneous and compatible and create no conflict requiring strained construction.
The law has been long established that the attorney general may aid a district attorney in the prosecution of a criminal case when requested by the governor. Emery v. State (1899), 101 Wis. 627, 78 N.W. 145. The request may come from either branch of the legislature, and we see no reason why it may not be made generally at the time of enactment of a law. There is here presented no conflict between the district attorney and the attorney general on the conduct of the prosecution. The defense has no ground for objection.
By the Court. — Order affirmed.