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THE GREEN BAG
ham, Secretary of State.1 In that case the supreme court of Wisconsin in the exercise of its original jurisdiction, issued an injunc tion restraining the secretary of state from carrying into execution an act commonly known as the "Apportionment Act," on the ground that it was unconstitutional, and more particularly that he refrain from giving the notices of the election of members of the senate and assembly as apportioned and . districted by said act. The main contention made before the court was that the legislative apportionment of the state into districts was not a matter of cognizance in a court at all, but was political or legislative in its character in the sense of being non-judicial. The court however held that in a case where the question arose merely as an incident to the court's jurisdiction over the conduct of a purely non-political ministerial officer acting without discretion, it was its duty to pass on the constitutionality of the statute. It is unnecessary here to consider the soundness of this view. The court also carefully con sidered whether the issues before it involved the sovereignty of the state or the liberties of the people, and because it found that they were involved it took original jurisdiction. On a proper reading of the opinions in the Cunningham case, it is not to be in ferred that the court took the view that its judicial power attached to the case because the liberties of the people were involved, thus treating the "liberties of the people" in and of themselves as an independent and distinct subject-matter of jurisdiction. Rather the implication of the liberties of the people was treated merely as a criterion of original jurisdiction as distinguished from appellate jurisdiction. The late Wisconsin case of State ex rel. Cook v. Houser 2 shows in very clear language that no such inference as above suggested can be made as to the position of that court. But the Cunningham case was in effect urged before the supreme court of Colorado 1 51 N. W. Rep. 724; 81 Wise. 440. 1 ioo N. W. Rep. 964.
as a case in which the Wisconsin court founded its power to take jurisdiction as a court, and indeed as a court of first resort, upon the fact that the essential subject matter involved was the "liberties of the people." Thus it was maintained with great boldness that jurisdiction over all questions whatsoever involving the liberties of the people is embraced in this substantive grant of power to the supreme court by the constitution. These original prerogative powers it was said are sui generis and cannot be exercised by any other tribunal in the state. The rules which affect the exercise of equity jurisdiction were said to have no application when this power is invoked. In this country where the functions of government are separated to a great extent by constitutional requirement, and legis lative, executive and judicial powers are distributed amongst distinct departments, a more revolutionary principle of law it would seem can hardly be imagined. So extra ordinary is this claim of power for the court that it is not to be wondered at when in addition it is said that this original jurisdiction which we have been considering is con current with that of the legislature. And so when it was pointed out that the constitu tion provides that "the general assembly shall pass laws to secure the purity of elec tions, and guard against abuses of the elec tive franchise" l and it was claimed that the legislature has exclusive jurisdiction over the matters therein enjoined to be done as to when and how they shall be done it was answered: "The direction to the legislature to pass laws for securing the purity of the ballot was not designed to deprive the state supreme court of any jurisdiction conferred upon it by other portions of the fundamental law. The enforcement of statutes in the premises would be merely cumulative to the general supervising power and original juris diction with which the court is clothed. It is also worthy of notice that the legislature of 1 Const. Art. VII, sec. n.
