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STATE WISCONSIN ON RELATION BOLENS v. FREAR

January 5, 1914

STATE OF WISCONSIN ON THE RELATION OF BOLENS
v.
FREAR, SECRETARY OF STATE OF THE STATE OF WISCONSIN



ERROR TO THE SUPREME COURT OF THE STATE OF WISCONSIN

White, McKenna, Holmes, Day, Lurton, Hughes, Van Devanter, Lamar, Pitney

Author: White

[ 231 U.S. Page 617]

 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

The Attorney General of the State of Wisconsin by direction of the Governor of the State moves to dismiss on the ground that the State is the real party in interest, because Bolens, the relator, personally, was in the court below the mere agent of the State, devoid of all authority to prosecute this writ of error and thereby to implead the State in this court without its consent. Indeed, the motion to dismiss in a strict sense is a motion to quash the writ of error on the ground that no writ was ever sued out, and that in effect there is no judgment below to which the writ could be directed since the State, which was the party plaintiff and the officers of the State who were the defendants, both acquiesced in and have executed the judgment.

The decree to which the writ of error is directed was rendered on a demurrer to the petition filed in the Supreme Court of Wisconsin by Bolens, as relator, asking the court as a matter of original cognizance to enjoin the putting in force of a state law creating a new system of state taxation described as "progressive income taxation." 148 Wisconsin, 456. We accept a statement contained in the argument of the plaintiff in error concerning the nature of the original jurisdiction of the court below:

"The Constitution of the State of Wisconsin confers original jurisdiction upon the Supreme Court of the State to issue writs of injunction and other original and remedial writs and to hear and determine the same. (Art. VII,

[ 231 U.S. Page 618]

     Sec. 3.) This clause gives full jurisdiction to the state Supreme Court over any question quod ad statum reipublicoe partinet, affecting the 'sovereignty of the State, its franchises or prerogatives or the liberties of its people.' Such action is to be brought originally in the state Supreme Court and may be instituted by the Attorney General, acting on his own initiative or acting on the petition of a citizen; or if he refuses to act on the petition of a citizen, then the citizen may on notice apply to the Supreme Court for permission to bring the action for the State in the name of the Attorney General, and the Court may refuse or grant such permission."

Further, we adopt a statement in the argument for the plaintiff in error as to the grievances which it was deemed required judicial redress and the steps taken which were exacted by the state statute as prerequisite to obtain an exertion by the court of its original jurisdiction:

"Harry W. Bolens presented his petition to the then Attorney General of Wisconsin, setting up that the Wisconsin Income Tax Law, Chapter 658 of the Laws of Wisconsin for 1911, is wholly null, void and of none effect for that it violates numerous sections of both state and Federal Constitutions, most of these objections being set out in detail, followed by an omnibus allegation; and praying that for the wrongs complained of and for the protection of himself and all others similarly situated, and for the protection of all the taxpayers of the State against the threatened invasion of their rights and liberties, and forasmuch as all said persons are remediless in the premises without the interposition of the state Supreme Court, that the Attorney General move the Court for leave to bring the action designed 'so as fully to protect and secure the said rights and privileges guaranteed to the people of this State by the Constitution of the United States and the amendments thereto and the Constitution of the State of Wisconsin and the amendments thereto."

[ 231 U.S. Page 619]

     The Attorney General refusing to comply with the request, the Supreme Court, on motion of the relator, ordered the petition to be filed without prejudice to thereafter considering whether there was jurisdiction to entertain it. Subsequently the court overruled a demurrer challenging its original jurisdiction and moreover held on a demurrer addressed to the merits that the petition stated no ground for the relief which was prayed. The court in so doing defined the ...


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