State ex rel. Fugina v. Pierce
209 N.W. 693
Wis.
1926
Check Treatment

The following opinion was filed June 21, 1926:

Eschweiler, J.

Upon the first objection urged by defendant to these proceedings, namely, that this court ought *3not to exercise its original jurisdiction in quo warranto, we are of the opinion that the situation presented, namely, an application by the attorney general of the state of Wisconsin under ch. 294, Stats., to inquire into the right or title of one acting as .a county judge in this, state, though a proceeding which might have been brought in the first instance in a circuit court of the state and subject to review here, still is one in which this court has ample warrant and prеcedent to assume original jurisdiction. In State ex rel. Att’y Gen. v. Messmore, 14 Wis. 115, just such an original action by quo warranto against one acting as judge of the circuit court for the Sixth circuit was entertained by this court. In State ex rel. Finch v. Washburn, 17 Wis. 658, a similar proceeding was had here to determine which .of two persons was the county judge in Winnebago county; and again in State ex rel. Ryan v. Boyd, 21 Wis. 208, to determine who was the county.judge of Outagamie county; and -it was аgain done in State ex rel. Richter v. Chadbourne, 162 Wis. 410, 413, 156 N. W. 610, involving the office of county ‍​​​‌​‌‌​​​​‌​‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌​​​‌​‌‌‌​‌‌‌​​​​​‍judge of Fond du Lac county.

The other question presented is .as to the construction that should be given to that certain рhrase hereinafter quoted in sec. 253.02 (formerly sec. 2441) providing for the eligibility to election or appointment of county judges in any county of this state having a population of more than 14,000, to the effect that no person shall be eligible who, at the time of his election or appointment, is not “an attorney of a court of record.”

.While this statute by its language provides that such qualification shall exist at the time of election or appointment, still there can be no question but that such qualification is a continuing .one; that is, it must subsist during the entire term of office. A holding to the same effect as to residence was made in State ex rel. Att’y Gen. v. Messmore, 14 Wis. 163, 170, construing the provision of sec. 7, *4art. VII, Const., that “every circuit judge shall reside in the circuit from which he is elected.” This is so plainly a personal and continuing qualification of one entitled to be an incumbent of the office that a reasonable interpretatiоn of the statute requires the conclusion that the existence of such qualification cannot be limited merely to the time of election or appointment, but must subsist at the time of taking office and during the continuation of such occupancy. It has been so held as to a judge of the superior court, required, under the cоnstitution of Washington, to “be admitted to practice in the courts of record of this state,” and where the suspension for one year from his office as attornеy was held to disqualify such person for that period to hold such judicial office. State ex rel. Willis v. Monfort, 93 Wash. 4, 159 Pac. 889, L. R. A. 1917 B, 801. The same was held as to a county attorney in Brown v. Woods, 2 Okla. 601, 39 Pac. 473.

At the time his qualification to hold and сontinue to occupy the office of county judge of Buffalo county was challenged by the attorney general by the present application for a writ on April 15, 1926, the defendant Pierce was in possession of certificates showing his proper admission to practice in the supreme court and courts of record оf Minnesota and in the United States district court for the Western district of Wisconsin, the certificate issued by this court on November 12, 1924, having been on March 9, 1926, withdrawn, canceled, and revoked as above stated. Then if the language of the statute, “attorney of a court of ‍​​​‌​‌‌​​​​‌​‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌​​​‌​‌‌‌​‌‌‌​​​​​‍record,” should be construed as covering and including one whо is an attorney of record and entitled, therefore, to practice in the courts of record of Minnesota and in the United States district court for Wisconsin, thеre is no disqualification shown. If, on the other hand, the phrase should be construed as limited to courts of record of this state, then the respondent, by reason of the revocation of *5his right so to practice in this state, was not, at the time of this challenge (the sole period now being passed upon), qualified to hold such office.

’ As a general proposition, Wisconsin statutes are to be construed and considered as relating to people and institutions within the state of Wiscоnsin; as intra-territorial and not etctra-territorial. Such subject was discussed in McMillan v. Spider Lake S. M. & L. Co. 115 Wis. 332, 336, 91 N. W. 979, holding that the right of action given by the very general and broad terms of the death statute nevеrtheless excluded from its benefits a nonresident alien widow of a deceased resident of Wisconsin; and this was so held notwithstanding the provision of sec. 15, art. I, of the сonstitution declaring that “No distinction shall ever be made by law between resident aliens and citizens, in reference to the possession, enjoyment or descеnt of property.” The same general doctrine is recognized in Anderson v. Miller Scrap Iron Co. 169 Wis. 106, 116, 170 N. W. 275, 171 N. W. 935, in discussing the right to have adjusted, under the Wisconsin workmen’s compensation act, liability for injuries occurring in Michigan to the employee of a Wisconsin employer.

As pointed out in 2 Lewis’ Sutherland, Stat. Constr. (2d ed.) § 513, legislative acts are deemed to refer to persons and things within the state and within the power of the legislature; and so in Endlich, Interp. of Stats. § 169, it is said as a general rule, statutes aré to be read as though words to that effeсt were inserted.

In denying a motion to admit one, theretofore admitted to practice by the supreme court ‍​​​‌​‌‌​​​​‌​‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌​​​‌​‌‌‌​‌‌‌​​​​​‍of the state of Illinois, to practice bеfore the bar of this court, it was said in In re Mosness, 39 Wis. 509, after mentioning the well established practice to permit, as a matter of courtesy, a nonresident attorney to appear on special occasions as an attorney in this state, that attorneys are such gwoN-officers *6of the state that they are within the general rule that ex-' ecutive, legislative, and judicial functions, independently of statutory regulations, must be performed by residents, and that this wa§ especially so as to attorneys, and that our courts cannot have a nonresident bar. Page 511.

In State v. Russell, 83 Wis. 330, 53 N. W. 441, a distinguished lawyer of St. Paúl was- appointed to assist in the prosecution of a murder case undеr a statutory provision that trial courts may in their discretion appoint counsel to assist the district attorney in felony cases. There were no qualifying terms in that statute as to the term “counsel,” any more than are found in the statute now under consideration as to a court of record. It was there held that neither our laws or courts reсognize any attorneys' at law but those of this state, except by rule of comity or as a matter of favor; that assistant counsel for district attorneys must be attornеys at law of this state, citing, at page 333, In re Mosness, supra, and holding such appointment void, and the conviction obtained through his assistance was reversed.

We think that both by analogy аnd reason that decision must control here, and ‍​​​‌​‌‌​​​​‌​‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌​​​‌​‌‌‌​‌‌‌​​​​​‍that an attorney of a court of record, as the phrase is used in sec. 253.02, supra, must and ought to be construed as meaning an attorney of a court of record of this state, one over whom, as such attorney, this state, through its courts and legislature, has control both as to his admission tо the bar and his continuance in the right to practice. See, also, People ex rel. Hughes v. May, 3 Mich. 598, and State ex rel. Duffel v. Marks, 30 La. Ann. 97.

Attention has been called by the industry of cotinsel on both sides to a large number of varying exрressions used as to the statutory qualifications in this state for the holding of judicial office in specially 'created courts such, as county and municipal, and as tо the use or omission o.f the term “of this' state” in connection with the oft-recurring phrase *7in the various statutes of “courts of record.” But the very fact of such vast variety prevents any of such instances aiding us in our present consideration.

The view we have taken clearly denies respondent’s contention that his right to practice in the courts of record of the state of Minnesota meets' the requirements of sec. 253.02, supra.

While in many respects the judgments of the United States district court in this state are on the same footing as are judgments of our state courts, so far as our residents and their property are concerned, by force of our own or federal statutes, yet they are ;also clearly not courts of record of this state although courts of record within the state.

It follows that defendant’s demurrer to the petition must be overruled, and, there being no possible issue of facts to be ‍​​​‌​‌‌​​​​‌​‌‌‌​‌​‌‌​​‌‌‌‌​​‌‌​​​‌​‌‌‌​‌‌‌​​​​​‍presented, it necessarily requires that the matter be now closed and determined as was done on the second hearing in State ex rel. Att’y Gen. v. Messmore, in 14 Wis. 163, 179.

By the Court. — Let judgment of ouster be entered against defendant.

A motion for a rehearing was denied, without costs, on September 17, 1926.