"The state suffers essentially by every. . . assault of one branch of the government upon another; and it is the duty of all the co-ordinate branches scrupulously to avoid even all seeming of such." (quoting In re Goodell, 39 Wis. 232, 240 (1875)
How later courts described this case
- "The state suffers essentially by every. . . assault of one branch of the government upon another; and it is the duty of all the co-ordinate branches scrupulously to avoid even all seeming of such." (quoting In re Goodell, 39 Wis. 232, 240 (1875)
Written by the judges who cited it.
The opinion
RosenberRY, C. J.
(on motion for rehearing).
Messrs. Holmes & Shuttleworth and Daniel H. Grady, Esq., who at the request of the court, consented to support the contention that ch. 315, Laws of 1943, is invalid, have filed a motion for a rehearing and a brief in support of the motion.
The character of this proceeding and the reasons why it was instituted are fully stated in
Goodland v. Zimmerman
(1943), 243 Wis. 459 , 10 N. W. (2d) 180 . The court there stated that in view of the fact that until an order of integration was entered, there would be no one qualified to commence an action in regard to the validity of ch. 315, Laws of 1943, it would proceed upon its own motion to institute such a proceeding to consider the validity of ch. 315, Laws of 1943. The court indicated that for that purpose it would, (1) retain a certified
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copy of the record in the case of
Goodland v. Zimmerman;
(2) frame, upon its own initiative and with this record as a basis, such issues concerning the validity of the enactment and subject matter of the law as are deemed to be important; (3) invite such co-operation upon the part of those who oppose and those who defend the validity of this legislation as will insure adequate presentation of the matter to this court; and (4) in case of need, order a reference of any issues of fact considered to be material in determining this matter.
To effectuate its purpose, the court entered an order dated June 17, 1943, defining the questions which it wished to have discussed. At the request of the court Messrs. Holmes & Shut-tleworth and Daniel H. Grady, Esq., consented to support the contention that the act is invalid, the attorney general upon request of the court continued to support the contention that the act is valid. For convenience those supporting the contention that the act is invalid were designated “petitioners” and those supporting the contention that the act is valid were designated “respondents.” It was also indicated that the court would receive briefs
amici curice
from all parties who were interested in the proceeding. Briefs were filed by counsel on both sides of the question and both sides of the question were supported by briefs
amici curice.
The determination of the court was announced November 9, 1943.
It is abundantly clear from the foregoing that the proceeding while in form an adversary one was not so in substance. The proceeding took the form that it did so that there might be an orderly presentation and discussion of the questions involved. While the decision is in the form of a judgment, the effect of the judgment is limited and determined by the nature of the proceeding in which it is rendered. There were no parties to this proceeding. The record in the case of
Goodland v.
Zimmerman, supra, was returned to the circuit court with directions to dismiss the action.
The proceeding instituted by order of the court dated June 17, 1943, is for the purpose of enabling the court to inform itself as to the merits of the controversy and to determine what
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course it will pursue in view of the enactment of ch. 315, Laws of 1943.
In his message to the legislature the governor said:
“It seems to me that the least we can and should do is to postpone legislation of this character until these young men return and are given an opportunity to express themselves on it.”
In their brief-counsel for petitioners urge that because the legislature enacted ch. 315, Laws of 1943, over the veto of the governor, it thereby made it imperative for the court to proceed at once with the matter of integration,- — in other words, that the court cannot accept ch. 315 in part but must accept it as a whole, including the implication that it directs the court to proceed promptly. The court must be governed in its action by the provisions of ch. 315 as enacted. The court has large discretionary power both as to the time and form of integration and the fact that the court takes the same view as the governor as to the propriety of postponing integration until such time as the men in the service return home in no way ignores a mandate of the legislature. The fact that the court is in accord rather than in disagreement with the governor as to the time of integration supports rather than impairs the soundness of its determination. The legislature and the governor were not primarily in disagreement as to the
time
of integration but as to desirability of integration at any time.
So far the rights of no parties have been affected except as the opinion of the court may be persuasive in the future consideration of the validity of reasonableness of any order of integration which may be hereafter entered. The rights of no citizen will be impaired in the slightest degree because the bar is not presently integrated.
Other matters discussed in briefs of counsel have been fully considered in the opinion filed and we see no reason for further consideration of these questions at this time.
By the Court.
— Motion denied.