The State ex rel. Hartung vs. City of Milwaukee.

in the name of the attorney general; and the first question. in the case is whether such an action can be maintained.

The remedies in equity by way of injunction in case of a public nuisance were well understood at common law, and were twofold, viz.: (1) In case the threatened public nuisance threatened also to invade private rights and inflict a special and peculiar injury to any person, such person might maintain an action in equity to enjoin its establishment or continuance; (2) in case the nuisance was purely public, the remedy was by bill or information in equity on behalf of the people, instituted by the attorney general or other proper law officer of the state. Thus, so far as the threatened nuisance was private in its aspect it was prevented in a purely · private action; and so far as it was public it was prevented in a purely public action. Wood, Nuisances (3d ed.), §§ 777, 819. This was entirely logical, and the doctrine has been expressly or impliedly approved by many of the American. courts which have had occasion to treat the subject. Attorney General v. Railroad Cos. 35 Wis. 425 (see pages 533 et seq.); People v. Vanderbilt, 26 N. Y. 287; People v. Equity G. L. Co. 141 N. Y. 232; Georgetown v. Alexandria C. Co. 12 Pet. 91; District Attorney v. L. & B. R. Co. 16 Gray, 242; 2 Story, Eq. Jur. §§ 922, 923; Baines v. Baker, 1 Ambl. 158; Angell, Watercourses (7th ed.), § 565; 2 High, Inj. (3d ed.), § 1554; Ang. & D. Highways (3d ed.), § 280; State v. Carpenter, 68 Wis. 165; Hunt v. Chicago H. & D. R. Co. 121 Ill. 638; 3 Am. & Eng. Ency. of Law (2d ed.), 481, and cases cited in notes. We have been referred to no case, however, which holds that this action on behalf of the public may be maintained by a private relator without the presence of the proper law officer of the state. It is true that the expression is frequently used that the information may be filed either by the attorney general ex officio, or upon the relation of a private person. District Attorney v. L. & B. R. Co., supra; State ex rel. Little v. D. & S. E. R. Co. 36 Ohio St. 434. But

The State ex rel. Hartung vs. City of Milwaukee.

this does not mean that a private relator may prosecute alone, and without the presence of the proper law officer of the state. It simply means that a private person, especially interested perhaps, may make the sworn relation upon which the attorney general or other proper prosecuting officer of the state founds his action.

It seems quite probable that the trial court, in making the order allowing the action to proceed in the name of the state upon the relation of a citizen, relied upon what was said in the case of State ex rel. Lamb v. Cunningham (known as the "Gerrymander Case "), 83 Wis. 90. Careful consideration of that case, however, demonstrates its inapplicability to the present case. That case was an action brought in this court, and clearly within its original jurisdiction, because it affected "the sovereignty of the state, its franchises or prerogatives, or the liberties of its people." In the Railroad Cases, 35 Wis. 425, it was, in substance, held that the writ of injunction, as given to this court by the constitution, being classed with mandamus, habeas corpus, quo warranto, and certiorari, was a quasi prerogative writ, and that all of such writs were given to the supreme court for prerogative uses only. Being thus classed with mandamus as a prerogative writ as given to this court, and the law being quite well settled that mandamus to enforce the performance of public duties may be sued out by any citizen if the attorney general refuses to appear (Merrill, Mandamus, §§ 229, 230), it was held in the second Gerrymander Case (83 Wis. 90), that this court would entertain an information for injunction to restrain a public officer from enforcing a law which interfered with the liberties of the people, at the suit of a private relator acting in the name of the state, upon permission obtained from the court. But it by no means follows that the same rule applies to injunctions sued out of the circuit court. It has been already held in this very matter that such a case as this is not one within the criginal

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The State ex rel. Hartung vs. City of Milwaukee.

jurisdiction of this court, because it does not affect either "the sovereignty of the state, its franchises or prerogatives, or the liberties of its people." In re Hartung, 98 Wis. 140. Hence it is a case within the jurisdiction of the circuit court or court of general jurisdiction. The circuit court is given by the constitution the same writs which are given to the supreme court; but, as pointed out in the Railroad Cases, they are given to the circuit courts as an appurtenance to their general jurisdiction, and the writ of injunction, as given to the circuit court, is not a prerogative or jurisdictional writ, but is the order of a court of equity, made in the progress of a suit, and is taken by the circuit court simply with the powers and uses of the English court of chancery. Therefore it seems clear that the rule adopted in this court with reference to the quasi prerogative writ of injunction as given to this court has no necessary application to the purely equitable writ of injunction possessed by the circuit courts, to be used according to the powers and uses of the court of chancery. Nor do we deem it in any view desirable to extend the rule to such cases. Hence it follows that this action was never in fact an action on behalf of the state, because the state has never been represented by its proper law officer, and the court has no power to authorize a private relator to act pro hac vice as such officer.

It has not been necessary to discuss or decide in this opinion whether the attorney general or the district attorney is the proper officer to file such an information as is now before us, in the circuit court. The constitution provides that the powers and duties of the attorney general shall be prescribed by law. Const. art. VI, sec. 3. His general duties are laid down in sec. 163, Stats. 1898. It is made his duty to appear and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and all such civil cases as may be sent or remanded by that court to any circuit court, and to appear for the state in any court in any cause

Schug vs. The Chicago, Milwaukee & St. Paul R. Co.

or matter, civil or criminal, in which the state or the people may be interested, whenever requested by the governor or either branch of the legislature. He is also required to perform all other duties imposed on him by law. Sec. 3236, Stats: 1898, gives the attorney general power to commence an action in the name of the state in any circuit court against a corporation, and obtain an injunction restraining the corporation from assuming or exercising any franchise, liberty, or privilege, or transacting any business, not authorized by its charter. By sec. 752, Stats. 1898, the district attorney is required to prosecute or defend all actions, applications, or motions, civil or criminal, in the circuit court of his county, in which the state or county is interested or a party. Whether in the present case the attorney general or the district attorney was the proper public officer to file and prosecute the information is an interesting question, but it was not argued, and, as it is not necessary to the decision of the case, we refrain from expressing an opinion upon it.

The view taken of the case makes it necessary to dismiss the appeal. As it was not an action brought by the state, but by a private party, an effective appeal could not be taken without the giving of an undertaking. None was given in this case. Stats. 1898, secs. 3049-3052. By the Court.- Appeal dismissed.

SCHUG, by guardian ad litem, Appellant, vs. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Respondent.

February 27 — April 4, 1899.

Railroads: Injury to boy trespassing on track: Contributory negligence: Gross negligence: Court and jury: License to use track as foot-way. 1. Plaintiff, a bright, intelligent boy ten years of age, had, with two other boys, been running westward along a railroad track at a place where it was unlawful for them to be. Just before reaching

Schug vs. The Chicago, Milwaukee & St. Paul R. Co.

a street he attempted to cross the track and was struck by a locomotive coming from the east at an unlawful speed, the bell on which had not been rung, though its whistle was sounded immediately prior to the accident. The boy knew that it was dangerous to walk along or get upon the track, and had been cautioned by his parents not to go around trains. He testified that although he knew the train came along about that time he had not thought of it until just before he was struck. It appeared that from the street a man could be seen on the track nearly 1,100 feet to the east; but there was no evidence that either of the boys was actually on the track after the train approached where they could be seen from the engine, or that the engineer or fireman saw any of them, or that their clothing was such as naturally to attract attention. In an action for the injuries sustained. held, that a nonsuit was properly granted. DODGE and WINSLOW, JJ., dissent, being of the opinion that the question whether defendant's servants were guilty of gross negligence should have been submitted to the jury.

2. The fact that a railroad track, at a place where it was protected by fences and cattle-guards and where it was unlawful, under sec. 1811, R. S. 1878, for persons to walk, was frequently used by pedestrians does not show that such use was licensed by the company, in the absence of evidence that it acquiesced in or invited the trespass.

APPEAL from a judgment of the circuit court for Winnebago county: GEO. W. BURNELL, Circuit Judge. Affirmed.

For the appellant there were briefs by Eaton & Weed and Henry Fitzgibbon, and oral argument by H. I. Weed and M. H. Eaton. They contended, inter alia, that the plaintiff by reason of his age could not, as a matter of law, be held guilty of contributory negligence. Ewen v. C. & N. W. R. Co. 38 Wis. 613; Townley v. C., M. & St. P. R. Co. 53 Wis. 626; Hemmingway v. C., M. & St. P. R. Co. 72 Wis. 42; Whalen v. C. & N. W. R. Co. 75 Wis. 654; Swift v. S. I. R. T. R. Co. 123 N. Y. 645; Bottoms v. S. & R. R. Co. 25 L. R. A. 784, and cases in notes; Johnson v. C. & N. W. R. Co. 56 Wis. 274, 279; S. C. 49 Wis. 529, 531; Heddles v. C. & N. W. R. Co. 74 Wis. 239; Me Voy v. Oakes, 91 Wis. 214; Carmer v. C., St. P., M. & O. R. Co. 95 Wis. 513; Mowrey v.