In this case, this Court follows the construction given by the
highest court of the state to the provisions of the state
constitution in regard to its jurisdiction of cases in which the
state is a party or which are brought by the consent of the state
on the relation of an individual.
Where the relator has no authority to sue except by consent of
the state, and he is a mere agent for calling judicial authority
into activity for protection of general public rights, and not for
redress of individual wrongs, the state is the real party plaintiff
and the relator has no power without its consent to prosecute error
to this Court.
Where, in such a case, the state does not consent that the
relator prosecute error, the writ will be dismissed; the case is
not within Rev.Stat., § 709 (Judicial Code, § 237), and this Court
has not jurisdiction.
The fact that this Court has authority under § 237, Judicial
Code, to decide a legal question in a case where jurisdiction
exists does not give it power to decide that question in a case
where jurisdiction does not exist.
Where jurisdiction does not exist, this Court will not pass upon
the questions involved so that, in future cases involving those
questions, the state court may be guided by the views expressed by
this Court thereon.
Writ of error to review 148 Wis. 456 dismissed.
The facts, which involve the jurisdiction of this Court of a
writ of error to review the judgment of a state court against a
relator who is not the agent of the state, and who has without
authority of the state sued out the writ of error, are stated in
the opinion.
Page 231 U. S. 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, who 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 Wis. 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,
Page 231 U. S. 618
Sec. 3.) This clause gives full jurisdiction to the state
supreme court over any question
quod ad statum reipublicae
pertinet, affecting the 'sovereignty of the state, its
franchises or prerogatives, or the liberties of the 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 no 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.' "
Page 231 U. S. 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 nature of the power possessed by it as a matter of
original jurisdiction to hear and determine the case made by the
petition.
It said, 148 Wis., p. 500:
"This transcendent jurisdiction is a jurisdiction reserved for
the use of the state itself when it appears to be necessary to
vindicate or protect its prerogatives or franchises or the
liberties of its people. The state uses it to punish or prevent
wrongs to itself or to the whole people. The state is always the
plaintiff, and the only plaintiff, whether the action be brought by
the Attorney General or against his consent, on the relation of a
private individual, under the permission and direction of the
court. It is never the private relator's suit. He is a mere
incident. He brings the public injury to the attention of the
court, and the court, by virtue of the power granted by the
constitution, commands that the suit be brought by and for the
state. The private relator may have a private interest which may be
extinguished (if it be severable from the public interest), yet
still the state's action proceeds to vindicate the public
right."
Contrasting the authority thus possessed by virtue of its
original jurisdiction with the ordinary processes for the redress
of private wrongs, the court said:
"These propositions, if correct, and we believe they are,
demonstrate very clearly that there can be no such thing as a
taxpayer's action (as that action is known in the circuit courts)
brought in the supreme court within the original jurisdiction.
"
Page 231 U. S. 620
Referring to such a taxpayer's suit, the court observed (p.
501):
"The taxpayer himself is the actual party to the litigation, and
represents not the whole public, nor the state, nor even all the
inhabitants of his municipality, but a comparatively limited class
-- namely, the citizens who pay taxes. In short, he sues for a
class. No such thing is known in the exercise of the original
jurisdiction of this court. In actions brought within that
jurisdiction, the state is the plaintiff, and sues to vindicate the
rights of the whole people."
Applying these doctrines, it was said (p. 501): "The
Bolens case [this case] cannot therefore be held to come
within the original jurisdiction of this Court if it be a mere
taxpayer's action."
After further pointing out the distinction between the right of
an individual to sue in a trial court to enforce an individual
right or redress a wrong, and, if aggrieved, to prosecute error or
appeal, and the difference between the exertion on such error or
appeal of authority to review, and the extraordinary power exerted
when original jurisdiction was invoked, the court came to consider
the merits of the petition. In doing so, it declared that, because
of the public nature of the controversy, it would confine attention
solely to those matters which were addressed to the invalidity of
the statute as a whole. In passing upon questions of that
character, propositions which asserted the statute to be repugnant
to both the United States and state constitutions were analyzed and
held to be without merit. The petition was dismissed.
From this statement it is apparent that the motion of the state
to dismiss is well founded for the following reasons: (a) because,
accepting the interpretation affixed by the court below to the
state constitution, and the resulting ruling as to the scope of its
own original jurisdiction, it follows that the state was the only
real plaintiff below,
Page 231 U. S. 621
since the relator had no authority to sue but by the consent of
the state, and as its mere agent for the purpose of calling into
activity judicial authority, not for the redress of individual
wrong, but for the protection of general public rights; (a) because
the suit, having been brought by the consent of the state, in its
behalf, the relator had no power, without the consent of the state,
to prosecute error, and thus to implead the state without its
consent; (c) because, as the relator did not resort to the methods
provided by law for the enforcement of his individual rights, if
any, but elected solely to resort, by the consent of the state, to
a jurisdiction given only for the redress of general public wrongs,
he may not, by means of a writ of error, directed from this court,
transform the nature of the proceedings, and secure at the hands of
this court, under the guise of an appellate proceeding, the
exertion of authority to originally determine alleged grievances
which were not passed upon by the court below and are not within
the scope of Rev.Stat. § 709. The argument that if, asserting his
individual grievances, the case had been brought in a trial court,
and had been carried to the supreme court of the state from an
adverse decision upon a federal question, the judgment or decree of
the supreme court would be here reviewable, hence the decision in
this case, to save circuity of action, should be now reviewable,
amounts but to saying that, because there is authority to decide a
legal question in a case where there is jurisdiction, there must
also be power to pass upon the same question when it arises in a
case over which there is no jurisdiction. Under the ruling below,
no individual right of the relator was denied, and because it may
be inferred that if, in the future, a case asserting individual
rights in due course of procedure comes to the court below, that
court will be controlled or persuaded by the opinions expressed in
this case, furnishes no ground for the exertion by this court in
the
Page 231 U. S. 622
present case of a jurisdiction which it does not possess.
Indeed, whether the case be considered in the light of the absence
of any assertion of individual right or grievance on behalf of the
relator or be looked at from the point of view that the suit was
one under the state law which could only be brought by the
permission of the state and for the protection of its governmental
authority, the state being therefore the real party plaintiff, or
if it be tested by the want of authority on the part of the relator
by means of a writ of error to implead the state under the
circumstances disclosed without its consent in this court, the want
of jurisdiction is so conclusively shown by previous decisions as
to leave no room for controversy (
Smith v. Reeves,
178 U. S.
436).
Dismissed for want of jurisdiction.