McCabe v. City of Milwaukee

Wisconsin Supreme Court

McCabe v. City of Milwaukee

191 N.W.2d 926, 53 Wis. 2d 34, 1971 Wisc. LEXIS 934

CourtWisconsin Supreme Court

DecidedNovember 30, 1971

Docket190

StatusPublished

Cited by14 cases

This text of 191 N.W.2d 926 (McCabe v. City of Milwaukee) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCabe v. City of Milwaukee, 191 N.W.2d 926, 53 Wis. 2d 34, 1971 Wisc. LEXIS 934 (Wis. 1971).

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Opinion

Hanley, J.

We note at the outset that it does not appear that the attorney general was served with a copy of the proceeding in this case or that he was cognizant of the institution of the action. Whenever a declaratory judgment action is brought challenging the constitutionality of a statute or ordinance, the attorney general must be served with copies of the proceedings, as required by sec. 269.56 (11), Stats.:

“. . . [I]f the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.” (Emphasis supplied.)

*37 In Chicago & N. W. Ry. Co. v. La Follette (1965), 27 Wis. 2d 505, 523, 135 N. W. 2d 269, this court stated that the attorney general has the duty to appear on behalf of the people of this state to defend the statute. Moreover, since sec. 269.56 (15), Stats., directs uniformity of interpretation between the several states which have enacted the Uniform Declaratory Judgments Act, it is appropriate to note that those states which have construed the section referred to have held that service of a copy of the proceedings upon the attorney general is not only mandatory, but goes to the jurisdiction of the court to hear the action in the first instance. Parr v. Seattle (1938), 197 Wash. 53, 84 Pac. 2d 375; Cummings v. Shipp (1928), 156 Tenn. 595, 3 S. W. 2d 1062; Jefferson County Fiscal Court v. Trager (1945), 300 Ky. 606, 189 S. W. 2d 955; Pressman v. State Tax Comm. (1954), 204 Md. 78, 102 Atl. 2d 821; Gadsden v. Cartee (1966), 279 Ala. 280, 184 So. 2d 360.

We think the state as a whole is interested in the validity of city ordinances; and it is obvious that the legislature wanted to protect that interest when it provided for service of proceedings upon the attorney general.

We conclude that since the record fails to show service of a copy of the proceeding on the attorney general, the trial court did not acquire jurisdiction. We are without jurisdiction to entertain this appeal, and it must be dismissed. The trial court’s order dismissing the complaint was proper.

By the Court. — Appeal dismissed.

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Hanley, J.

We note at the outset that it does not appear that the attorney general was served with a copy of the proceeding in this case or that he was cognizant of the institution of the action. Whenever a declaratory judgment action is brought challenging the constitutionality of a statute or ordinance, the attorney general must be served with copies of the proceedings, as required by sec. 269.56 (11), Stats.:

“. . . [I]f the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.” (Emphasis supplied.)

*37 In Chicago & N. W. Ry. Co. v. La Follette (1965), 27 Wis. 2d 505, 523, 135 N. W. 2d 269, this court stated that the attorney general has the duty to appear on behalf of the people of this state to defend the statute. Moreover, since sec. 269.56 (15), Stats., directs uniformity of interpretation between the several states which have enacted the Uniform Declaratory Judgments Act, it is appropriate to note that those states which have construed the section referred to have held that service of a copy of the proceedings upon the attorney general is not only mandatory, but goes to the jurisdiction of the court to hear the action in the first instance. Parr v. Seattle (1938), 197 Wash. 53, 84 Pac. 2d 375; Cummings v. Shipp (1928), 156 Tenn. 595, 3 S. W. 2d 1062; Jefferson County Fiscal Court v. Trager (1945), 300 Ky. 606, 189 S. W. 2d 955; Pressman v. State Tax Comm. (1954), 204 Md. 78, 102 Atl. 2d 821; Gadsden v. Cartee (1966), 279 Ala. 280, 184 So. 2d 360.

We think the state as a whole is interested in the validity of city ordinances; and it is obvious that the legislature wanted to protect that interest when it provided for service of proceedings upon the attorney general.

We conclude that since the record fails to show service of a copy of the proceeding on the attorney general, the trial court did not acquire jurisdiction. We are without jurisdiction to entertain this appeal, and it must be dismissed. The trial court’s order dismissing the complaint was proper.

By the Court. — Appeal dismissed.

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191 N.W.2d 926, 53 Wis. 2d 34, 1971 Wisc. LEXIS 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccabe-v-city-of-milwaukee-wis-1971.

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