Opinion
March 13, 1942 —
March 26, 1942.
ORIGINAL ACTION. Petition of state of Wisconsin, on the relation of the State Central Committee of the Progressive party of Wisconsin and J. K. Kyle, chairman thereof, asks the exercise of original jurisdiction to grant declaratory relief. The allegations of the petition are that the Progressive party is a political party existing under the statutes of Wisconsin; that its affairs are managed by the relator, State Central Committee, elected pursuant to sec. 5.20, Stats.; that relator, J. K. Kyle, resides in Whitewater and is chairman of this committee; that the committee has authorized commencement of the action; that a controversy has arisen in a matter of state-wide importance, involving the construction of secs. 6.32 and 10.04 (6), which statutes affect the rights, status, and legal relations of relators and the defendants; that sec. 6.32 (1) provides in substance that not more than two election inspectors, nor one of the clerks of election, nor one of the ballot clerks shall be members of the same political party, but each one shall be a member of one of the two political parties which cast the largest vote in the district at the last preceding general election, the party having the largest vote being entitled to two inspectors, one clerk, and one ballot clerk, and the party receiving the next largest vote, being entitled to the remainder of the officers. "The basis for such division shall be the vote of each party for its presidential elector receiving the largest vote, or for its candidate for governor," at the last preceding general election. Sec. 10.04 (6), Stats. (applicable to the city of Milwaukee), provides:
"(6) In each precinct not more than one of said inspectors, nor more than one of said ballot clerks, so nominated, shall be of the same political party, and such inspectors shall be chosen from the 3 dominant political parties as shown by the returns of the last preceding general election in such precincts, and such ballot clerks shall be chosen from the 2 dominant political parties as shown by the returns of the last preceding general election in such precinct."
That the last general election in the state of Wisconsin was held November 5, 1940; that at this election Orland S. Loomis was the duly nominated candidate of the Progressive party for governor of the state of Wisconsin; Francis E. McGovern was the duly nominated candidate for the Democratic party, and Julius P. Heil, the duly nominated candidate for the Republican party; that Orland S. Loomis received the highest number of votes, both in the city and county of Milwaukee, with Julius P. Heil receiving the second-largest number of votes and Francis E. McGovern receiving the third-highest number of votes; that prior to the last general election there were persons in Wisconsin who referred to themselves as Socialists and were so referred to by others, but that there was no political party known as the "Socialist Party" organized or existing under the statutes of Wisconsin; that there was no state central committee or any Socialist organization or party in 1940 and there were no Socialist party candidates for any state offices or for president; that there was an independent candidate for president, Norman Thomas, reputed to be Socialist but not nominated by the Socialist party according to Wisconsin statutes; that this candidate had his name placed in the Independent column of the ballot and was described after his name as an Independent Socialist; that there is a group or association referred to by its members as the "Socialist Party of Wisconsin" of which the defendant, Kiefer, is known as chairman; that at the same general election, Franklin D. Roosevelt, Democratic candidate for president, received the highest number of votes, both in the city and county of Milwaukee; Wendell L. Willkie, Republican candidate, had the next-highest number of votes, and Norman Thomas, Independent, the third-highest number of votes; that the respondent, Board of Election Commissioners of the city of Milwaukee, in interpreting secs. 6.32 (1) and 10.04 (6), Stats., have now ruled and continue to rule that notwithstanding the facts above set forth, the Progressive party is not entitled to the appointment of any inspectors, clerks of election, or ballot clerks in the city of Milwaukee, and that it is not one of the three dominant political parties, and that the organization committee referred to as the Socialist party is entitled under the sections named to the appointment of inspectors, clerks of election, and ballot clerks as a dominant party, and has determined that election inspectors in all precincts in Milwaukee where any votes were cast for Norman Thomas should be chosen from the Socialist group as one of three dominant political parties, and that in no case can the Progressive party be treated as a dominant political party; that the Board of Election Commissioners has purported to appoint two thousand two. hundred persons as election officers for the city of Milwaukee for the ensuing election to be held April 7, 1942, and has failed to appoint as such any member of the Progressive party; that it has appointed four hundred forty persons as members of the Socialist party as such election officers on the basis of its interpretation of the statutes, and threatens to continue making such appointments on such basis including appointments for the September primary and November election in 1942; that this decision has become widely known and may be followed by administrative officers and local town and city officers in the appointment of election officials throughout the state. This court is asked to declare the proper construction of the statutes referred to in the petition. It is alleged that the attorney general has been requested to commence this action and has declined to do so, but that he has indicated his view that the action should be commenced and prosecuted by petitioners and has given his consent thereto.
Upon filing the petition and upon oral argument this court determined to take original jurisdiction in the matter for the purpose of determining whether the petition states a cause of action for declaratory relief. Since that time petitioners have asked leave to amend the petition as follows:
(1) To include allegations that because of the large number of such positions and appointments vacancies have occurred since 1942, and are continuously occurring by reason of death, incapacity, and resignation or retirement due to war work, etc.; that it is important that these vacancies be filled according to law; that the rights of the public and political parties involved should be determined as long as possible in advance of the fall primaries; that the defendant threatens to fill all such vacancies with members of the Socialist party in accordance with its previous ruling; that the remedy at law is inadequate because of the number of such appointments and the delay incident to settling any final or authoritative decision reasonably in advance of the September primary.
(2) In addition to purely declaratory relief, petitioner asks equitable relief to restrain a continuance of appointments from the Socialist party as such to the offices of election inspector. In the event that the court should hold that quo warranto or mandamus is available and an adequate remedy, petitioner seeks leave to commence quo warranto against one or more of the members appointed from the Socialist party. It is alleged that request has been duly made upon the attorney general to bring an action of quo warranto against some one or more of such appointees but that the attorney general has declined, and consented to prosecution in the name of the state at the instance of petitioners, any form of action which may be proper to determine these questions. The prayer of the petition is sought to be amended in conformance to the foregoing.
For the plaintiff, John E. Roe, Harold M. Wilkie, and Lyall T. Beggs, all of Madison.
For the defendants, Walter J. Mattison, city attorney, Omar T. McMahon, assistant city attorney, William F. Quick, and Edwin W. Knappe, all of Milwaukee, and Anna Mae Davis of Madison.
When this court took original jurisdiction of this cause solely to determine whether the petition viewed as a complaint stated a cause of action for declaratory relief, it expressed the view that while the subject matter of the litigation considered generally so importantly affected the franchises and rights of citizens as to warrant the exercise of original jurisdiction, it was in grave doubt whether the facts alleged were sufficient to state a cause of action for declaratory relief. The attention of counsel was called to the case of McCarthy v. Hoan, 221 Wis. 344, 346, 266 N.W. 916, in which the following statement was made:
"At the outset, we are confronted with the question whether any ground for declaratory relief is alleged or shown. It is our conclusion that it is not. The statute was not enacted in the interest of any party or any citizen or group of citizens, but merely constitutes a device to secure honest elections. This being true, neither plaintiff's rights nor those of the political group of which he is a member are in controversy, and plaintiff seeks merely to vindicate a public right to have the laws of the state properly enforced and administered."
In the McCarthy Case, supra, plaintiff sued as a private citizen seeking a construction of sec. 10.01, Stats., dealing with the same subject matter as this action. The statement of the court was, of course, directed principally to the question whether plaintiff had any standing to bring the action. Since, in the view of the court, neither he nor the political group of which he was a member had any rights under the statute, it was held that he had no standing to vindicate in his own name, a public right to have the laws of the state properly enforced and administered. On this point, of course, the situation here is quite different in that, (1) plaintiffs have applied to the attorney general to commence action in the interests of the public; (2) the attorney general has refused to commence such an action; (3) the attorney general has consented that plaintiff prosecute this action in the name of the state of Wisconsin; (4) the action is prosecuted in the name of the state of Wisconsin.
It would seem under the doctrine of the Income Tax Cases, 148 Wis. 456, 134 N.W. 673, 135 N.W. 164, that for the purposes of this action, we must consider the state to be the real party and to have the interest in the proper enforcement its laws which was held lacking in the McCarthy Case. However, it does not follow that the McCarthy Case has no bearing upon the present controversy. In directing our attention, not to plaintiff's standing to bring this action, but to the question whether this is a proper case for declaratory relief, we may not overlook the express holding in the McCarthy Case that sec. 6.32, Stats., has for its purpose, not the distribution of offices among political parties in proportion to their voting strength and the creation in them or their rights, but merely the maintenance of honest and uncorrupted elections; that the division of election officials among the predominant political parties is a mere device to insure vigilance in this direction by those who have an important political stake or motive.
Hence, the only matter of great public concern is that elections be honestly conducted and that the devices contrived by the legislature to secure this result be not so distorted as to defeat the purpose of the legislature.
We are unable to discover any allegation remotely intimating that interpretation of the sections of the statutes referred to in the complaint is necessary in order to avoid danger of a dishonest or corrupt election. In fact, from what the court judicially knows, the contrary affirmatively appears. Upon analysis this controversy has a very narrow scope, both legally and geographically, especially in view of the decision of this court in State ex rel. Milwaukee C. Rep. Comm. v. Ames, 227 Wis. 643, 278 N.W. 273. In the Ames Case, this court interpreted sec. 6.32, Stats., and clearly indicated the scope and meaning of that section. While the decision was by a divided court, and there are allegations in the complaint indicating that, if necessary, a reconsideration of that decision will be asked, it is necessary to point out that constructions of statute, even though arrived at by divided opinion, are generally adhered to, at least where they have survived subsequent sessions of the legislature, and the legislature itself has accepted the interpretation of the court by not amending the statute. This is a very strongly established judicial policy and the particular construction has survived two sessions of the legislature. Milwaukee County v. City of Milwaukee, 210 Wis. 336, 246 N.W. 447, and Estate of Siljan, 233 Wis. 54, 288 N.W. 775.
This interpretation, so far as material in the present controversy, certainly diminishes the need for declaratory relief. The Ames Case, supra, has answered at least one of the important questions in this case. It has determined that under sec. 6.32, Stats., the Progressive party, having had no presidential candidate or presidential electors in the last general election, is not presently to be treated as a dominant party in the state of Wisconsin. Hence, all of the allegations of the complaint which emphasize the refusal of defendants to recognize the Progressive party, or to respect its claim to be a dominant party, are mere allegations that defendant is following the statute as construed by the court.
That leaves in the case solely the question whether the Socialist party is for any purposes under either sec. 6.32 or 10.04 (6), Stats., entitled to be considered a dominant political party. The practical scope of the inquiry is further narrowed when judicial notice is taken of the fact that the Socialist party, whatever its standing as a political party under the statutes, has practically no voting strength outside of Milwaukee county. As a state-wide proposition, the Democratic and Republican parties under the rule in the Ames Case are, at least until the next general election, the two dominant parties, with practically no exceptions throughout the state. The same thing applies in Milwaukee county, except for one office, and that is the office of inspector. Sec. 10.04 (6) provides for appointments of inspectors from three dominant parties instead of two. As to ballot clerks, the rule in sec. 10.04 (6) is the same as in sec. 6.32.
Hence, the only question that we are asked to decide is one in which relators have certainly no private interest, and in which the public can have no great concern so far as the securing of honest elections is concerned, because, assuming an erroneous interpretation by election commissioners, it only means that a third political group is given inspectors in addition to the two dominant groups. This cannot be said to increase the chances of a dishonest election.
Further than this, there is no present emergency or present need for action, nor will any action that we can take at this time make any substantial contribution to the public interest. The officers of election have already been appointed for the period in question. None of the appointees to these offices is a party to this action. Nothing that is decided here will be binding upon these appointees, nor operate to change the practical situation in regard to them.
It is set forth in the requested amendment to the petition that vacancies frequently do, and will occur, and that as to these the interpretation of the Board of Election Commissioners indicates that they will continue to interpret the statutes was they have in the past and that an authoritative interpretation is necessary to correct this possible difficulty. It appears to us that to grant relief for this reason would be to answer a purely hypothetical question, and to give legal advice that this court refused to give in State ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N.W. 627, and Riebs Co. v. Mortensen, 219 Wis. 393, 263 N.W. 169.
For the foregoing reasons we hold that there should be no declaration in this case. We are also of the view upon reconsideration that we were in error in assuming original jurisdiction of the cause, even for the limited purpose of determining whether declaratory relief could be given. As pointed out before, the matter is not one of state-wide concern and there is no present or pressing emergency that justifies the extraordinary intervention of an original action. It was pointed out in In re Exercise of Original Jurisdiction, 201 Wis. 123, 229 N.W. 643, and in Petition of Heil, 230 Wis. 428, 284 N.W. 42, that this court will only entertain original jurisdiction in exceptional cases. This is not such a case.
We are asked by the petitioner in case declaratory relief is refused to retain jurisdiction for the purpose of granting equitable relief, or of entertaining an action in the nature of mandamus or quo warranto.
In view of the foregoing conclusions, we think that we ought not to go further in this case than the purposes for which jurisdiction was originally entertained. This, especially in view of our conclusions as to the propriety of entertaining the case in the first place. Further than this, we have not before the court proper persons to an action to try title to any of the offices involved, and these persons should not be foreclosed from putting forth such objections as they may have to assumption of original jurisdiction of such an action.
Action dismissed.