131 Wis. 499 | Wis. | 1907
The questions whether the relator Rad legal capacity to commence and maintain the action and whether the facts alleged are sufficient to constitute a cause of action seem to he the ones relied upon to sustain the order complained of, so this opinion will he restrained accordingly.
The first question is ruled in favor of appellant by the statute, sec. 3466, Stats. (1898). It is there provided that/ an action may be brought against the party offending in the name of the state by a private person on his own complaint when the attorney general refuses to act, or when the office usurped pertains to a county and any person shall usurp, intrude into, or unlawfully hold any public office. True, in order for a private person to be competent to commence such an action he must have some interest in ending the claimed usurpation, but that is satisfied by his being a taxpayer of the district affected. State ex rel. Kelleher v. Fordyce, 115 Wis. 608, 92 N. W. 430. As suggested by appellant’s counsel, the-point under discussion was directly passed upon in that case. It was again passed upon very decisively in State ex rel. Weinsheim v. Leischer, 117 Wis. 475, 94 N. W. 299, this language being used:
“True, such private person, when not suing on behalf of' the public, must have some interest in the question, more than that which is common to all members of the community; but that interest certainly appears when it is shown that he is a property owner and taxpayer in the village, and hence is necessarily pecuniarily affected. . . . We can entertain no doubt but that the action is properly brought by the private relators named in the complaint, under the express terms of the statute. It is still an action by the state, but the state has, by statute, permitted it to be prosecuted by private-parties.”
Whether the office here alleged to be usurped is strictly a county office or not, it quite clearly pertains to a county, within the meaning of the law. The name of the office is-“county supervisor of assessment,” and the duties incident.
Moreover, it appears that the attorney general was hostile to the maintenance of the action from the fact that he appeared therein as one of the attorneys for the respondent at the outset and continued as one of such attorneys down to the present time. That, as it has been held, shows that an application to him to commence the action would have been entirely futile, which is equivalent to a refusal to act in the matter on behalf of the state (People ex rel. Ayres v. State Auditors, 42 Mich. 422, 4 N. W. 274; State ex rel. Lamb v. Cunningham, 83 Wis. 90, 130, 53 N. W. 35), thus rendering operative that part of sec. 3466, Stats. (1898); aforesaid, making it competent for a private person to commence the action when the attorney general refuses to act. So there was legal capacity to commence and maintain the action both upon the ground of the attitude of the attorney general in the matter and the ground that the office pertained to a county.
The first question in order respecting whether the law is valid is, Does the feature which provides that the supervisor of assessment for each county shall be elected by its board of supervisors and for a term of three years, violate sec. 4, art. VI, of the constitution, providing that “sheriffs, coroners, registers of deeds, district attorneys, and all other county officers except judicial officers, shall be chosen by the electors of the respective counties once in every two years V’ In short, is the so-called office of county supervisor of assessment a county office within the meaning of the language “all other county officers” as used in the quoted words ? If so, manifestly, the legislature acted outside the scope of its authority in providing for filling the office otherwise than by an election by the people.
Conceding for the purposes of the discussion thaf in the broad, most comprehensive meaning of .the term “county offi-
While the language of a law, whether fundamental or a legislative creation, which is plain, looking at its literal sense, ordinarily, in such sense, is to he regarded as expressing the intent of the lawmakers, that sense may he viewed broadly or restrictively, or even violated, within the limits that the reasonable meaning of words cannot be departed from, in case of their being ambiguous and such departure being necessary in order to render efficient the purpose of the lawmakers. This subject has been many times discussed in our decisions. The law in respect to the matter was declared in Rice v. Ashland Co. 108 Wis. 189, 192, 84 N. W. 189, 190, thus:
“There must be some uncertainty of sense, else the natural and ordinary meaning of the words must prevail. When there is no such uncertainty, to resort to judicial construction to extend or restrict the meaning of words and give to a legislative enactment a character other than that which its language plainly indicates, it is said, ‘would be extremely dangerous, for there would be no law, however definite and precise in its nature, which might not thereby be rendered useless.’ . . . But courts are obliged in many cases to go further. . . . It is always presumed, in regard to a statute, that no absurd or unreasonable result was intended by the legislature. Hence if, viewing a statute from the standpoint of the literal sense of its language, it is unreasonable or absurd, an obscurity of meaning exists, calling for judicial construction. . . . While courts do not, and cannot properly, bend words out of their reasonable meaning to effect a legislative purpose, they do give to words a liberal or strict Interpretation within the bounds of reason, sacrificing literal sense and rejecting every interpretation not in harmony with the evident intent of the lawmakers rather than that such tent shall fail,”
So before attempting to read the provision of the constitution in question other than in the plain literal sense thereof,
The language of a law is not necessarily free from ambiguity merely because looking thereto alone no uncertainty of meaning appears. Ambiguity, as has often been said, may as well spring from the effect that would' result by applying a law in its literal sense, as from obscurity of expression in the words themselves. This subject was thus treated in Rossmiller v. State, 114 Wis. 169, 178, 89 N. W. 839, 841:
“It is fundamental that if, giving to the words of an act fcheir literal or natural meaning, thé conólusion reached would be unreasonable or absurd, some other meaning within the reasonable scope of the words may be adopted to avoid that result, if it appears that such meaning may probably have been the one intended.”
One of the familiar principles to be applied in determining whether words of a law which are plain on their face are ambiguous nevertheless, is that it mu§t always be presumed that the lawmakers did not intend anything clearly unreasonable •or absurd. Another familiar principle is that implied repeals are not favored. Therefore, where a later enactment in its ordinary sense nullifies an earlier one to which, however, it makes no reference, ambiguity exists calling for judicial construction to the end that a meaning may be attributed to the later law, if the lawmakers so intended, which will give effect thereto without disturbing the earlier enactment. The rule on that subject has often been declared here. It was stated in Mason v. Ashland, 98 Wis. 540, 545, 74 N. W. 357, 359, thus:
“In judicial construction, one of the most familiar rules is that conflicts by implication or otherwise, between different •provisions of a statute, or between two statutes, are not favored and will not be held to exist if they may be otherwise reasonably construed. . . . When two acts or provisions are susceptible of a construction which will give operation to both •and all of the words in each, without doing violence to either,*506 it is incumbent on the court to search for some reasonable ground for such construction and not reach the conclusion that a fatal conflict exists, unless the meaning of the words and the manner of their use he such as to render it impossible to reconcile them on any reasonable theory, whereby all may be given force and effect.”
Applying the foregoing to the situation in hand it seems that we must go further, before condemning the law in question as invalid, than merely to determine that looking at the literal sense of sec. 4, art. VI, of the constitution it includes all offlcel’s who are in any sense “county officers.” It would be an extraordinary restriction upon legislative power to so tie its hands as to disable it from creating any sort of an office, however insignificant, pertaining to a county to be filled otherwise than by an election by the people. Practical construction by the uniform course of legislation since the constitution was amended into its present form condemns the idea that so drastic a restriction was intended. There is the law providing for county commissioners of equalization, sec. 1077a, Stats. (1898). Such officers have been held not to be county officers in a constitutional sense. State ex rel. Brown Co. v. Myers, 52 Wis. 628, 632, 9 N. W. 777, 778. The court there did not regard the term “county officers” as used in the constitution to necessarily include every officer whose duty pertains to a county. This language was used:
“It is, doubtless, the meaning and intent of the constitution, that certain officers shall be elected or appointed by the people of the district to which their offices appertain. But we do not think the commissioners appointed under this act axe ‘officers’ within the meaning of the constitution. They are merely appointed to do a specific act, and when that act is performed their power ceases.”
Then there is the law providing for county game wardens (sec. 2, ch. 312, Laws of 1899). They are required to be authorized by the county board and to be appointed in a particular manner, their compensation to be fixed by the county
Again if sec. 4, art. YT, includes every officer who may in any sense be regarded as a county officer, it is plainly repugnant to the spirit, and in our judgment to the letter, of sec. 9, art. XIII, of the constitution, which provides that “all county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the legislature shall direct.” That contemplates the existence of county officers whose election is provided for by the fundamental law and others to be elected or appointed as the legislature shall provide.
It is an inefficient answer to the foregoing indications of ambiguity to say that the term “all other county officers” does not admit of any other reasonable construction than the one including all officers however insignificant whose duties appertain to a county at large. The term obviously has a broad general and a narrow or particular meaning, and the sense in
In State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 107 N. W. 506, a similar question was involved. Ch. 366, Laws of 1905, provides that the place of trial of all actions authorized to be brought against any of the state officers in their official capacities shall be in Dane county., The court upon due consideration held that the term “state officers” may be construed as meaning only heads of the executive departments of the state elected by the people at large, such as governor, lieutenant-governor, state treasurer, secretary of state, attorney general, and the like, that being its particular meaning, or given its more comprehensive sense including every person whose duties appertain to the state at large, according to the legislative intention; that the exact sense in which the term is used in any particular law must often be determined by ordinary rules for judicial construction. Applying the rule that effects and consequences are to be regarded in construing a law where the words thereof will admit of either of two reasonable meanings, the court held that in the law in question the words “any of the state officers” should be restrained to heads of departments having their official residence at the state capitel, and expected to keep open office there during business hours and, generally speaking, to be there themselves; that is, that the term was used by the lawmakers in its narrow and particular instead of its broad and general sense.
In harmony with the foregoing we find it to have been held hy the supreme court of the United States that the term “county officer,” strictly speaking, “is one by whom the county performs its usual political functions; its functions of government.” One who “exercises continuously, and as a
In determining whether tbe words “all other county officers” were used in the constitution in their particular sense, the affirmative is suggested at once by the rule of noscitur a sociis. Several but not' all of the principal heads of county government required .to have their offices at the county seats and ordinarily in the building provided for that purpose are mentioned, followed by the term “all other county officers except judicial officers.” In that we have a very strong indication that minor officials not usually thought of when the term “county officers” is used were not intended to be included, but only sheriffs, coroners, registers of deeds, and the libe. Such indication is emphasized, as we shall see, with stribing significance by the conditions existing at the time of the formation of the constitution and at the time sec. 4, art VI, was amended into its present form, and the way the subject has always been treated by the legislature as we have heretofore seen.
It may be thought that the rules for the construction of legislative enactments do not apply to the construction of the fundamental law, and that the argument thus far on that account is somewhat beside the case. The authorities, however,
At the time of the adoption of the constitution there was a county system of government with the ordinary principal heads, such as sheriffs, coroners, district attorneys, county treasurers, county surveyors, registers of deeds, county commissioners, and clerks of such commissioners, who performed substantially the duties now performed by county clerks. The constitution was adopted largely with reference to that situation. In discussing a somewhat similar situation in New York, it was said that the constitution should be deemed to have been prepared and adopted in reference to existing laws upon the provisions of which in detail it depended to be set in operation. Rathbone v. Wirth, 150 N. Y. 459, 473, 45 N. E. 15; People v. Raymond, 37 N. Y. 428.
Now we find that the framers of the constitution, dealing with the existing conditions and contemplating the continuation of its general features, provided that certain of the existing heads of county governments should be elected by the people, viz., sheriffs, coroners, registers of deeds, and district attorneys, leaving the other heads to be provided for, as well as minor 'county officers, in such way as the legislature might provide, and in respect thereto sec. 9, art. XIII, which has never been changed, was adopted to cover the subject in the words heretofore quoted, viz.:
“All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the legislature shall direct.”
And contemplating that the legislature might from time to time create new county officers with duties different from
“All officers whose offices may hereafter be created by law, shall be elected by the people or appointed, as the legislature may direct.”
Following the constitutional plan in the first revision of the statutes a chapter was devoted to the subject of counties and county officers. That included members of the county board of supervisors, taking the place of the old commissioner system, and made up of the chairmen of the boards of supervisors of the several towns and the supervisors in cities as county officers; also the clerk of the board of supervisors, the clerk of the circuit court, district attorney, judges of .probate, court commissioners, sheriffs, coroners, county treasurers, registers of deeds, and county surveyors. Oh. 10, R. S. 1849. That system was continued in the revision of 1858, ch. 13, and again continued in the revision of 1878, the subject of county officers being treated-under ch. 37, the same being extended to include superintendent of schools, and all being made elective by the people. Later, in 1882, sec. 4, art. VI, of the constitution was amended so as to conform' thereto by adding after the words “district attorneys” the words “and all other county officers except judicial officers,” thus including county clerks and superintendents of schools, leaving sec. 9, art. XIII, as before, referring to certain county officers whose election was provided for in the constitution, pointing quite plainly to sec. 4, art. VI, and other •county officers whose election was not provided for, they to be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct, and leaving the legislature free to create other officers to be “elected by the people •or appointed, as the legislature may direct.” It seems quite plain that sec. 4, art. VI, from the beginning dealt with county officers in the restrictive sense, — the recognized heads of the several divisions of county government as treated in the
As argued by respondent’s attorneys, tbe constitutional provision in New York identical with our sec. 9, art. XIII, was-early held to use tbe term “county officers” with reference to officers thus known at tbe time of tbe adoption of tbe constitution, and that tbe right was reserved to create additional county offices with duties different from those of tbe officers, specially mentioned, and to provide for filling them. People ex rel. Wood v. Draper, 15 N. Y. 532, 538; People ex rel. Loew v. Batchelor, 22 N. Y. 128, 140; People ex rel. Brown v. Woodruff, 32 N. Y. 355, 364; People v. Raymond, 37 N. Y. 428; Matter of Brenner, 170 N. Y. 185, 190, 63 N. E. 133; Allison v. Welde, 172 N. Y. 421, 65 N. E. 263. Those cases and others that might be referred to are to tbe effect that tbe legislature under sucb a constitutional system as ours, so far as indicated by sec. 9, art. XIII, aforesaid, is free to create a new county office and provide for filling it by some authority other than direct action by tbe electors, so long as tbe duties of tbe office are not sucb as were incident to some county office at tbe time of tbe formation of tbe constitution.
Without further discussion we are constrained to bold that tbe term “all other county officers” was used in tbe instance-in question in harmony with tbe statutory division of officers into state, county, and town officers existing at tbe time of its incorporation into tbe fundamental law. In other words, in its particular sense — that of beads of tbe several major divisions of county government as then understood, — and without any thought of surrendering tbe legislative power mentioned in sec. 9, art. XIII, to create other county offices with duties other than those incident to those offices grouped
The last phase of tbe case mentioned we deem of special importance, since there are many important laws which might otherwise be fatally affected. True, practical construction is of no consequence where the language of tbe law will reasonably permit of but one meaning, but where it is otherwise, as we find to be tbe case here, and the legislature has consistently, and not in violation of any existing judicial construction, adopted a particular meaning reasonably attributable to the law, as shown by tbe general course of legislation covering a long period of time, sucb circumstance may well be taken as controlling. Mayor v. State ex rel. Board of Police, 15 Md. 376. In that ease it was held that a provision of a constitution may receive interpretation from long,
“Such legislation is evidence of contemporaneous acquiescence of tbe people, and tbe various departments, in tbis practical interpretation, and tbe constitution, may receive an interpretation from a long, constant, and uniform legislative -practice.”
To tbat effect are McCulloch v. Maryland, 4 Wheat. 316, and numerous cases cited in tbe note to § 476, 2 Lewis’s Sutherland, Stat. Constr. (2d ed.), where tbe same is stated as established doctrine.
It is next argued that ch. 445, Laws of 1901, is void as arbitrary class legislation, in tbat it violates tbe letter and spirit of tbe constitution in providing tbat tbe term of tbe office created shall be three years, whereas tbe term for county officers generally is two years, and it provides special and unreasonable qualifications, in tbat a person to be eligible to tbe office is required to be an elector and householder of tbe county not less than four years before tbe date of bis election, and is required to furnish a bond to tbe state of Wisconsin signed by an authorized surety company conditioned for tbe faithful and impartial discharge of bis duties.
Tbe suggestion tbat tbe three-year term of office contravenes tbe constitution as to tbe term of office of county officers is answered by what has been said, in tbat supervisors of assessment are not constitutional officers in tbe sense tbat they are specially mentioned with a special restriction as to their election and term of office.
There is not in our constitution any general provision respecting eligibility to public office. We do not find any authority, in tbe numerous cases cited, to tbe effect tbat there is any implied limitation upon tbe right of tbe legislature to prescribe reasonable qualifications for public offices, not contravening any. constitutional provision on tbe subject. Especially is tbat true where tbe office itself was not in existence
The requirement in the law in question that a candidate to be eligible shall be an elector and householder of the county for not less than four years seems reasonable and very moderate. A supervisor of assessment in order to be fairly equipped for his duties must needs have some familiarity with the county in which his duties are to be performed. The requirements prescribed by the law seem to be about as moderate a guaranty thai; he shall have such familiarity as legislative wisdom could well have devised. The substantial part of such requirements seems to be actual identification of the candidate with the people and interests of the county for a period of four years, at least, by his having been an elector and householder therein during that period.
Our attention is called to State ex rel. v. Robbins, 71 Ohio St. 273, 73 N. E. 470, holding that a law requiring official bonds to be obtained of surety companies is unconstitutional as a restriction upon the liberty to. contract. The case is quite novel and seems to stand alone, and to rest upon reasoning which we are not willing to follow. It is not suggested that
Is ch. 445 a usurpation, in that it violates the right of local self-government, taking from the various primary taxing districts of the county the right to have the subjects of direct taxation assessed therefor by officers of their own choosing ? That is the next question to be solved. Counsel for appellant maintain the affirmative, because sec. 4 provides that the county supervisor of assessment shall have full and complete supervision and direction of the work of the assessors in his-county. However, when we come to examine the precise nature of the supervision referred to we find that it does not take from the local assessors to any extent their discretion in respect to valuing property for taxation. The supervisor is required, as it seems, to assist and advise the local assessors and see that they obey the law. After the supervisor has exhausted his authority it is for the local assessor in every case, or the board of review, to exercise discretion as to valuing the property. The supervisor’s work consists wholly, as it seems, in seeing that the assessor performs his duty, not in performing the assessor’s duty for him. Sec. 4 provides that the supervisor shall annually call the assessors together for conference and instruction relative to their duties. Sec. 5 requires him to examine public books, records, and papers in his county for the purpose of obtaining knowledge respecting property assessable in the assessment districts of his county. Sec.. 6 requires him to test the work of assessors during the progress of their work, and provides that if he shall ascertain that any property has been omitted or not assessed ac
Oh. 259, Laws of 1905, was referred to on the argument as having some bearing on the question here involved, but it is considered that it does not. This action challenges the existence of the office of supervisor of assessment under the act of 1901, purporting to create it, and challenges the right of the respondent to hold and perform the functions of such an office. The act of 1905 is an independent provision imposing new duties on the supervisor of assessment. Whether the performance of such duties would violate the right of local
By the Gowrt. — So ordered.
