Opinion
No. 354.
Argued November 25, 1974. —
Decided December 20, 1974.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT W. LANDRY, Circuit Judge. Dismissed.
For the appellant there was a brief by Franklyn M. Gimbel and Gimbel, Gimbel Reilly, all of Milwaukee, and oral argument by Franklyn M. Gimbel.
For the respondents there was a brief by Robert P. Russell, Milwaukee County Corporation Counsel, and Patrick J. Foster, Assistant Corporation Counsel, and oral argument by Mr. Foster.
This action for declaratory judgment relief was commenced by Ronald Bollhoffer, plaintiff-appellant (hereinafter plaintiff) against Michael S. Wolke, Milwaukee county sheriff and the individual members of Milwaukee county civil service commission, defendants-respondents (hereinafter defendants).
The plaintiff, Ronald Bollhoffer, a Milwaukee county deputy sheriff since 1962, brought this action seeking to have sec. 63.05(2), Stats, declared null and void under the facts alleged in the complaint and seeking an injunction against defendants enjoining them from advancing any deputy sheriff to the position of sergeant on the basis of veterans' preference points if such treatment is not afforded the plaintiff.
The complaint alleges and the answer admits that it is part of the defendants' responsibilities to provide examinations and certify those employees of the sheriff's department qualified for advanced positions within the department and that among the factors considered are the provisions of sec. 63.05(2), Stats., which gives preference points on civil service examinations to certain veterans. The plaintiff is eligible for promotion but is not entitled to nor will he become entitled to veterans' preference points. There was to be an examination given to qualify deputy sheriffs for consideration for promotion on January 27, 1973, and among those taking the examination would be individuals who would be entitled to veterans' preference points but who did not have the same amount of experience or education as the plaintiff.
The complaint also alleges that the plaintiff was a member of the United States armed forces between July, 1955, and July, 1958, and that the plaintiff received an honorable discharge. However, that term of service is not included in the statutory provisions which specify when preference points are to be granted.
The plaintiff alleged that sec. 63.05(2), Stats, as applied against him, interfered with and impaired his legal rights and privileges and violated his property rights without due process and denied him equal protection of the laws.
Following the defendants' answer, the plaintiff moved for summary judgment. The court denied the motion for summary judgment, the request to declare secs. 63.05(2) and 45.35(5), Stats., unconstitutional, the stay requested in the motion for declaratory judgment and all motions of the plaintiff.
We note at the outset that the record does not show that the attorney general was served with a copy of the proceeding in this case. 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."
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 Wn. 53, 84 P.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 A.2d 821; Gadsden v. Cartee (1966), 279 Ala. 280, 184 So.2d 360. In McCabe v. Milwaukee (1971), 53 Wis.2d 34, 191 N.W.2d 926, we deemed service on the attorney general to be jurisdictional.
The record in the case at bar fails to show service of a copy of the proceeding on the attorney general. Therefore, the trial court did not acquire jurisdiction. At the time of oral argument, counsel stated that the attorney general had been served, that the attorney general sent a letter to the trial court, and that counsel for respondent had discussed the matter with an assistant attorney general. However, in addition to not showing service on the attorney general, the record does not contain any of these alleged communications. By way of caveat, we direct that in declaratory judgment actions challenging the constitutionality of a statute or ordinance the provisions of sec. 269.56(11), Stats., be strictly complied with.
We conclude this court is without jurisdiction to entertain this appeal and it must be dismissed.
By the Court. — Appeal dismissed.