216 Wis. 80 | Wis. | 1934
The position of the relator is that he was a duly and permanently appointed and qualified deputy oil inspector under the civil service'law on October 31, 1933; that at that time the state treasurer discharged him for the expressed reason that the department was reorganized; that the civil service law provides that an officer permanently appointed to a position under that law cannot be removed “except for just cause which shall not be religious or political;” that the reason for the attempt to remove him was political;
The position of the respondents is that ch. 461, Laws of 1933 (hereinafter referred to as ch. 461), abolishing the office of state inspector of illuminating oils and creating in the treasury department of the state a bureau in charge of the state supervisor of inspectors under the general charge of the state treasurer, impliedly discharged all deputy oil inspectors and effected a reorganization of the oil inspection department of the state; that it does not appear that the relator became an oil inspector after that act went into effect, because the petition does not state that he was appointed as such by the state treasurer, or that he qualified as such by filing the oath and giving the bond prescribed by sec. 168.04; that permitting the relator to remain in performance of the duties of an oil inspector was in effect at most only a new original appointment; that under the civil service act original appointments 'are only temporary, and that appointees thereunder may be removed within six months for any reason satisfactory to the appointing officer, and that all the statutes require to effect removal is a notice from the appointing officer that the appointment will not be made permanent, and that the notice of discharge given the petitioner was equivalent to such notice.
The motion to quash the alternative writ of mandamus is in effect a demurrer and admits the allegations of fact contained in the petition. The petition alleges as a fact that the cause of the petitioner’s removal was political. If in fact the cause of the removal was political, and as matter of law the relator was a permanently appointed deputy oil inspector at the time he was removed, the removal was illegal and he is entitled to reinstatement. The first question for determination therefore is whether the relator was holding the office of deputy oil inspector on October 31, 1933.
We do not perceive that placing oil inspection under the bureau effected a removal of any of the personnel of the oil inspection force. The provision that the newly-created inspection bureau and supervisor of inspectors should “succeed to all powers and duties imposed by law, . . . upon the state supervisor of inspectors of illuminating oils and the oil inspection department,” merely imposed those duties upon the new bureau and the new officer. Those duties had to be performed by somebody. The officers, other than the supervisor, performing those duties must of necessity by force of their office continue to perform them else those duties would not be performed. The organization of the oil inspection department would of necessity continue until changed by the officers of the new bureau authorized to make changes. Unless otherwise indicated therein the act must be construed as contemplating and intending that the existing personnel would continue in their positions unless and until reorganization should abolish or change the duties of their positions. It is alleged that no material change has been'made in the existing organization and that the personnel has not,been reduced; that another person was put in the relator’s position; that this other person was appointed to perform and'is performing precisely, the same duties that the petitioner was performing in precisely the same territory in which the petitioner was operating. These allegations of fact imply that there was in fact no reorganization of the department that abolished any of the duties the relator was'performing or the office he was holding.
“All employees now employed in the department and bureaus affected by this act shall be eligible to appointment in the bureau created thereunder and shall be given preference in such employment and appointment.”
It is urged that the reference to preference to appointment under the new act implies intent of removal by the act. We do not so regard the provision. In view of the necessity of the continuance of the performance of the duties imposed upon the new bureau without interruption by the officers at the time performing those duties, no new appointments would be required unless or until reorganization of the department should change the duties those officers were performing. We interpret this provision as applying only when such changes in duties and personnel were effected by reorganization as to require new appointments to be made, and it appears from the petition that no such changes have been made in respect to deputy oil inspectors. The provision by reasonable in-tendment applies to new positions created by reorganization and to positions abolished by reorganization, and provides that in such cases those occupying abolished positions shall be eligible to appointment to the new positions without the examination and certification regularly required for appointment do positions under the civil service law, and shall be given preference in making such appointment to such new positions over persons on the list for appointment through the civil service law. It must be borne in mind that ch. 461 placed several inspection departments of the state and all inspectors connected therewith under one head with manifest implied intent, and professed intent on the part of its sponsors, of working economies through reduction of personnel and expense of travel and subsistence by making one inspector perform the duties of two or more, each of whom under
That the actual legislative intent of sec. 8, of ch. 461, was to protect existing employees in their positions appears from the history of the bill that resulted in its enactment. The original bill, No. 701 A, did not contain sec. 8. A republican introduced sec. 8 as an amendment. A democrat moved to strike from the section the provision respecting giving “preference in such employment and appointment.” This proposal was rejected and sec. 8 was enacted as originally proposed. The intent of the legislature to protect existing employees against displacement for political reasons is thus clearly evidenced., This intent is further evidenced by the action of the legislature in subsequently defeating bill No. 8S, introduced in the senate by a democrat to repeal the entire civil service act. The legislature by these several actions plainly forbade the discharge for political reasons of the personnel of the several departments affected by ch. 461, and what was thus made illegal cannot be made legal by subterfuge.
The contentions of counsel for respondents stated in the second paragraph of this opinion all fall with their proposition that ch. 461 removed the relator from the office. If, as
By the Court. — The order of the circuit court is reversed. No costs allowed.