Summary
In State v. Seymour, 24 Wis.2d 258, 261, 128 N.W.2d 680 (1964), this court retained jurisdiction over a moot question because the enforcement of the gambling law involved affected many people "and if the appeal were to be dismissed and order below left standing the decision and order below would be left standing to be cited in future cases at the trial level."
Summary of this case from State ex Rel. Ellenburg v. GagnonOpinion
April 30, 1964 —
June 2, 1964.
APPEAL from an order of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Reversed.
For the appellant the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief were George Thompson, attorney general, and William A. Platz and LeRoy L. Dalton, assistant attorneys general.
No brief or appearance for the respondent.
Special proceeding by the state through the district attorney of Milwaukee county in accordance with sec. 176.90, Stats. (the Thomson Anti-Gambling Law), for revocation of the tavern license of defendant James Lloyd Seymour. The ground alleged in the petition for such revocation, was that a gambling device used for gambling was located on the licensed premises on April 8, 1963.
The petition was dated April 22, 1963. On May 28, 1963, defendant by his attorney appeared specially and moved that the proceeding be dismissed because it was not brought by the corporation counsel of Milwaukee county. Defendant relied on sec. 59.456, Stats. This statute, which is applicable to corporation counsels in counties having a population of 500,000 or more, generally gives such corporation counsel the duty to prosecute and defend all "civil actions." Sub. (5) transfers all duties of a "civil nature" from the district attorney to the corporation counsel, and further provides that:
"After May 17, 1957 the district attorney's powers and duties as to civil matters shall cease to the extent that they are herein or hereafter conferred upon the corporation counsel and the district attorney shall be relieved of the responsibility of performing such duties."
By memorandum decision dated June 24, 1963, the circuit court determined that it did not have jurisdiction over the defendant because the proceeding had not been initiated by the corporation counsel of Milwaukee county, and that the court had power only to dismiss the proceeding without prejudice upon the special appearance and motion of defendant. Pursuant to this memorandum decision an order was entered November 21, 1963, which dismissed the proceeding without prejudice. The state has appealed from this order,
Upon the calling of the appeal for argument in the supreme court on April 30, 1964, there was no appearance by defendant, and defendant was further in default in not having filed any brief. However, prior to argument counsel for defendant had informed the chief justice that in behalf of defendant he would file a motion to dismiss the appeal as moot. Such motion was filed with this court May 1, 1964, which motion recites these facts: On August 6, 1963, the state instituted another proceeding in the circuit court for Milwaukee county against defendant pursuant to sec. 176.90, Stats., which alleged the same facts as in the instant petition. On September 9, 1963, defendant entered a stipulation wherein he confessed judgment before the branch of the circuit court presided over by Honorable JOHN A. DECKER, Circuit Judge, and stipulated to the truth of the allegations of the petition. Pursuant to the stipulation, judgment was entered September 9, 1963, against defendant revoking his tavern license and enjoining the issuance of any licenses or permits to defendant pursuant to secs. 66.054 and 176.05. In accord with this judgment, defendant no longer operates a tavern and is not now the holder of any permits or licenses issued pursuant to such last-mentioned statutes.
We will first consider the motion to dismiss because of mootness. Generally, if a question becomes moot through a change in circumstances, it will not be determined by the reviewing court. Lamoreux v. Williams (1905), 125 Wis. 543, 104 N.W. 813; State ex rel. Schertz v. Spiegel (1920), 171 Wis. 260, 176 N.W. 1022; 6 Wisconsin Law Review (1930), 101. It is a well-recognized exception that a reviewing court will retain jurisdiction and decide the issue if the question is one of great public importance. Carlyle v. Karns (1960), 9 Wis.2d 394, 101 N.W.2d 92; Wisconsin E.R. Board v. Allis-Chalmers W. Union (1948), 252 Wis. 436, 32 N.W.2d 190; Doering v. Swoboda (1934), 214 Wis. 481, 253 N.W. 657.
The issues presented by this appeal are publici juris because vital to the enforcement of the Thomson Anti-Gambling Law in Milwaukee county, which has a population of slightly in excess of 1,000,000 people. Even though we have determined that we should not pass on the merits, we deem it preferable to reverse under sec. 251.57, Stats. (formerly Supreme Court Rule 32), rather than dismiss the appeal as moot. The reason for this is that if the appeal were to be dismissed the decision and order below would be left standing to be cited in future cases at the trial level. Therefore, defendant's motion to dismiss is denied.
When we turn to the merits, these two issues are presented:
(1) Was the district attorney or the corporation counsel the proper officer to institute the proceeding?
(2) If it be determined that the district attorney was not authorized to institute the proceeding, did this irregularity deprive the circuit court of jurisdiction to grant the relief demanded?
Because of the default of defendant, however, we only have before us the brief of the attorney general. A majority of the court are of the opinion, therefore, that because of this we should not decide the appeal on the merits, but should reverse under sec. 251.57, Stats., which provides:
"When a cause is submitted or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument."
By the Court. — Order reversed.