146 Wis. 291 | Wis. | 1911
Tbe following opinion was filed June 1, 1911:
By sec. 2 of cb. 363, Laws of 1905, it is enacted that “appointments to, and promotions in tbe civil service of tbis state shall be made only according to merit and fitness, to be ascertained as far as practicable by examinations, which so far as practicable, shall be competitive. . . . No person shall be appointed, transferred, removed, reinstated, promoted or reduced as an officer, clerk, employee or laborer in tbe civil service under tbe government of tbis state, in any manner, or by any means, other than those prescribed in tbis ■act.” Tbis declares tbe purpose of tbe legislature, is evidence ■of tbe objects of tbe provisions of tbis act, and evinces an intent to change tbe previously existing practice and method of selecting persons for tbe state civil service.. An examination of tbe context of tbe act shows that it 'embodies a legislative ■endeavor to remedy existing evils in tbe civil service and to
The act is assailed by the respondent upon the ground that it abridges the privileges and immunities of the citizens of' the state, in that it creates arbitrary and unlawful discrimina-tions between different classes of citizens as regards the right to enter upon and continue in the public service. This contention seems to be founded on the idea that any citizen is. guaranteed the unqualified right to enter the public service regardless of his skill and fitness for the service. The privilege of holding a public office is not in its nature of the class of rights which are guaranteed by the constitution as the natural and inalienable rights of every citizen. It has never been treated as a natural right in our governmental system. It is.
“Public offices . . . are not incorporeal hereditaments; nor bave they tbe character or qualities of grants. They are agencies. With few exceptions, they are voluntarily taken, and may at any time be resigned. They are created for tbe benefit of tbe public, and not granted for tbe benefit of tbe incumbent. Tbeir terms are fixed with a view to public utility and convenience, and not for tbe purpose of granting tbe emoluments during that period to tbe office-holder.”
In State, ex rel. Tesch v. Von Baumbach, 12 Wis. 310, this court, at an early day in tbe history of this state, speaking of tbe people’s power concerning public offices, of tbeir right to create constitutional offices, and of tbe legislative power concerning them, states:
“As to all sucb [constitutional] offices and public trusts, to-which tbe people, in the exercise of tbeir paramount authority, bave impliedly declared who shall be eligible, either by prescribing special circumstances wbicb shall disqualify, or by reserving to themselves or to tbe appointing authorities a certain freedom of choice, there are very obvious reasons for bolding that eligibility is in the nature of a constitutional right, and that tbe legislature possesses no power of exclusion not given by tbe constitution; but it is manifest that those reasons cannot be applied to a mere statutory office wbicb tbe legislature may create and abolish at will, _ and concerning wbicb tbe constitution contains no express provisions.”
It is furthermore declared that public offices omitted from specific constitutional regulation “are subjected to tbe discretion of tbe legislature, wbicb represents tbe sovereign power of the state, and can make sucb rules as it deems wholesome and proper for tbe maintenance of good government.” See, also, State v. Douglas, 26 Wis. 428; State ex rel. Williams v. Samuelson, 131 Wis. 499, 111 N. W. 712; State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475; Fordyce v.
“The right to hold office under our political system is not a natural right, but exists only and by virtue of some law expressly or impliedly creating or conferring it.'. . . It may be controlled by the constitution, but, when that instrument ■does not prescribe the qualifications, it is the province and the right of the legislature to declare upon what terms and •subject to what conditions the right shall be conferred. . . . In offices created by the legislature, the right of the legislature to demand such additional qualifications as the nature ■of the particular office may reasonably require follows legitimately from the rule laid down in the Von Baumbach Qa&e.”
We refer to these expressions in former adjudications of this court at length to show that the power to create public ■offices and the right to prescribe the terms and conditions upon which they may be held by citizens rests with the people in their sovereign capacity, that no natural right thereto exists, •and that no such right is guaranteed or conferred on the citizen by the constitution. Shaw v. Marshalltown, 131 Iowa, 128, 104 N. W. 1121, 10 L. R. A. n. s. 825. In our system •of government no official power is vested in any of the individuals composing the state, and such power can only be exercised when it has been bestowed by the people through their governmental agencies in parceling out its official functions. The very conception of an office as a bestowal of a part of the function of a state necessarily implies that its functions are to be administered by individuals who possess the qualifications to exercise and perform them. To accomplish this the state must obviously possess the power to ascertain the existence of such qualifications before selecting the officer and to precribe regulations to carry such power into effect. We have shown that when this is not done by the people directly through constitutional provisions it then devolves on the legislative branch of the government to prescribe appropriate regulations for such purpose. These considerations negative
The contention is specifically made that the act is invalid in that it deprives the person exercising the power of appointment to public office of the right to employ a reasonable discretion in making a selection of persons qualified for office. Sec. 6 of the act provides: “No appointing officer shall . . . select or appoint any person for appointment, employment, promotion or reinstatement, except in accordance with the provisions of this act and the rules and regulations prescribed thereunder.” Sec. 16 provides that upon notice by an appointing officer to the commission of the existence of a vacancy
It is manifest that these provisions are a legislative expression on the subject as to what offices it was deemed appropriate that the appointing officers should have unlimited •discretion to select certain appointees who stand in close and confidential relations to them. The opinion doubtless also prevailed in the legislature that a selection from three candidates on the certified eligible list would provide a sufficient ■scope for the exercise of a reasonable discretion by the ap
“Looking at it as a matter of common sense, we are quite sure that the framers of our organic law never intended to oppose a constitutional barrier to the right of the people through their legislature to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to be appointed to such office. . . . Statutes looking only to the purpose of ascertaining whether candidates for an appointive office are possessed of those qualifications which are necessary for a fit and intelligent discharge of the duties pertaining to such office are not dangerous in their nature, and in their execution they are not liable to abuse in any manner involving the liberties of the people.” See, also, People ex rel. Akin v. Kipley, 171 Ill. 44, 49 N. E. 229; Newcomb v. Indianapolis, 141 Ind. 451, 40 N. E. 919.
We are persuaded that if the statute is administered within the limits of the provisions as therein prescribed by the legislature, it in no way infringes upon the rights of the appointing officers in making their selections and appointments to the public service.
It is also contended that the law is unconstitutional as an attempt to delegate legislative power to the commission. The-case of State ex rel. Adams v. Burdge, 96 Wis. 390, 70 N. W. 347, gives a concise statement of the principle by which this-contention must be tested:
“The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, ‘is between the delegation, of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.’ The first cannot be done. To the latter,, no valid objection can be made.”
It is claimed that the powers conferred on the commission by sec. 7, as to prescribing and amending rules; by sec. 9, relating to putting rules into effect, classifying offices, places, and employments; by sec. 12, providing for arranging all offices, positions, and employments in the classified civil service into the five classes specified in the act; by sec. 14, giving the commission the power to determine upon certain exemptions on account of the impracticability of ascertaining the merit of applicants by examinations; by
It is contended furthermore that the power to make rules, as conferred on the commission, is clearly an exercise of legislative power. The act provides that the commission shall “prescribe, amend and enforce rules and regulations for carrying into effect the provisions of this act” (sec. 7), “shall put into effect rules for the classification of the offices, places and employments, . . . shall also make rales and regulations providing for examinations for positions in the classified service, . . . appointments to, removals from, and promotions and reductions therein, and for such other matters as are necessary to carry out the purposes of this act” (sec. 9). It must be observed that in every part of the act conferring this power it is declared that the rales which the commission are authorized to prescribe and enforce are such as are necessary for the purposes of carrying into effect “the purposes of this act.” No provision of the act, directly or by implication, authorizes any rule to be made that can add to or in any way alter or amend the regulations made by the law. Only such rules are authorized as serve to provide the details for the execution of the provisions of the law in its actual administration, to fix the way in which the requirements of the statute are to be met, and to secure obedience to its mandates.
It would be impracticable at this time to attempt an analysis of the rules the commission may have adopted. Such a review is best accomplished when the validity of some particular rule or regulation is brought to the court’s attention. The purposes of this case are fully answered in finding that the power to make appropriate rules and regulations for the purpose of carrying the provisions of the statute into effect is properly conferred on the commission and restricts them to
Our attention is directed to tbe fact tbat among tbe penalties embraced in sec. 30 it is provided tbat: “If any person shall be convicted under tbis section, any public office wbicb sucb person may bold shall by force of sucb conviction be rendered vacant.” It is contended tbat tbis language was intended to include tbe offices of tbe secretary of state, tbe state treasurer, and tbe attorney general of tbe state. Tbe language employed is broad enough to include these officers as subject to tbe penalties prescribed. -It is manifest, under tbe principle of tbe decision in tbe case of State ex rel. Tesch v. Von Baumbach, 12 Wis. 310, tbat tbe legislature possesses no power to declare these constitutional offices vacant if the incumbent be found guilty of violating any of tbe provisions of tbis act, and it must be held tbat these officers are not subject to tbis specific element of tbe penalties, tbe vacation of bis office. Tbis result, however, does not affect tbe validity of tbe provisions of tbe act in its entirety.
We do not deem it necessary to discuss any other parts of tbe statute, for, as heretofore stated, tbe act in its dominant provisions makes provision for a complete general scheme and is an appropriate exercise of the legislative function to regulate tbe civil service of tbe state. Tbe validity of any of tbe minor provisions of tbe act, wbicb may be challenged on occasions when actual controversies arise, cannot affect tbe constitutionality of tbe act as a whole, and we therefore deem it unnecessary to indulge in further discussion of its provisions at tbis time.
By the Court. — Tbe motion to quash tbe alternative writ is denied, and tbe alternative writ is made peremptory. Tbe secretary of state is commanded to proceed to audit tbe relator’s claim and to issue to him a warrant upon tbe state treasurer for tbe payment of tbe amount found due him upon sucb audit. No costs are allowed to either party.