State ex rel. Hudd v. Timme

• Decision Date: 14 March 1882
• Citation: 11 N.W. 785,54 Wis. 318
• Parties: STATE EX REL. HUDD v. TIMME, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

54 Wis. 318

11 N.W. 785

STATE EX REL. HUDD

v.TIMME, SECRETARY OF STATE.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Mandamus.T. R. Hudd, relator, in pro. per., ( W. T. Vilas appearing by consent.)

L. T. Frisby, Atty. Gen., and H. W. Chynoweth, Asst. Atty. Gen., for respondent.

TAYLOR, J.

The relator asks this court to issue its writ of mandamus directing the secretary of state to audit his salary as a state senator at the sum of $500, and he bases his claim to that salary on the amendment of the constitution of the state adopted at the last general election, and commonly known as the biennial sessions amendment. The relator claims that the old provision of the constitution fixing the salary of senators and members of the assembly at the sum of $350, was abrogated by the adoption of the constitutional amendment referred to, at the moment it was adopted by the people, and that the amendment fixing the salary at $500 took effect from that date, and is the only provision of the constitution now in force fixing the salary of senators, and if they are not entitled to the sum of $500 they are not entitled to any salary.

On the part of the state the learned attorney general insists that the amendment of the constitution fixing the salary of senators and members of the assembly was a part of the plan for changing from annual to biennial sessions of the legislature, and that the salary mentioned in the amendment was clearly intended to be given only to such senators and members of the assembly as should be elected after the amendment took effect, and to those who should hold over under the second provision of the amendment, and who would become members of the legislature under the constitution as amended, and members of a legislature whose sessions were biennial instead of annual.

This amendment has been the subject of considerable criticism, because it did not provide more specifically when the new system should go into effect, and also for not declaring in express terms that the old system of things should remain in force until a legislature was elected and convened under the new. It is certain that much discussion and considerable doubt would have been prevented if these matters had been more specifically provided for in the amendment.

It is our duty to examine and construe the amendment as it has been adopted by the legislature and the people, and give it effect if we can, without interrupting the harmonious action of the government, until such time as its provisions can be carried into effect by proper action under it. That it was not expected or intended that the provisions of the amendment should go into effect, practically, immediately upon its adoption by the people, seems to us very clear, from a mere reading of its provisions. It first provides that members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November after the adoption of this amendment; secondly, that the senators are to be chosen at the same time and in the same manner as the members of the assembly, except that they shall be chosen alternately, in the odd and even numbered districts, and that all senators elected after the adoption of the amendment shall hold their offices for four years, and that the senators elected or holding over at the time of the adoption of the amendment shall continue in office till their successors are duly elected and qualified; thirdly, that the legislature shall meet at the seat of government, at such time as shall be provided by law, once in two years, and no oftener, etc.; and, fourthly, that their compensation, by way of salary, shall be $500, and cuts off certain perquisites which are now received by the members of the legislature.

In giving construction to these provisions we must look at the existing state of things at the time of their adoption, and they must be considered in connection with the proposed change. At the time of their adoption the constitution provided for annual sessions of the legislature, and for an election of members of the assembly, and of half the senators, on the same day that these amendments were submitted to and voted upon by the people. It would be absurd to hold that there was any intention, either on the part of the legislature or the people, to interrupt the regular course of government of the state by the adoption of these amendments. It is very clear, we think, that it was contemplated that members and senators would be elected as usual on the day the vote was taken on the amendment, and that the legislature would meet on the day prescribed by the constitutional provision, and the law then in force upon that subject. This is evident from the fact that the amendment provides that the senators elected or holding over at the time of the adoption of this amendment shall continue in office till their successors are duly elected and qualified. This provision clearly contemplated that the senators and members of assembly, elected the same day the vote on the amendment was taken, should remain in office until their successors should be elected at the first election under the amendment. From this fact it is evident that the amendment clearly contemplates the existence of a constitutional legislature, after its adoption, which would be composed of the senators and members chosen at such election, and not under the provisions of the amendment. This is further made clear from the third provision, which declares that “the legislature shall meet at the seat of government, at such time as shall be provided by law, once in two years and no oftener,” etc.

These provisions contemplate that there would be a constitutional law-making body in the state after the adoption of the amendment and before any legislature could be elected or convene under it. There can be, we think, no doubt but that the legislature in passing, and the people in ratifying, the amendment contemplated and intended that the old system of things should remain in full force until an election could take place under the new. Any other construction of the amendment would be in plain contradiction of its terms, and would render it impossible to put its provisions into practical effect. To hold that these amendments took effect immediately on their adoption, so as to absolutely abolish the present provisions of the constitution for all purposes, would compel us to hold that the present legislature was not a constitutional body, and that all its proceedings were absolutely void. We think no such construction is required from the language used in the amendments; and it is very clear that such was not the intention either of the legislature or the people. Fortunately we are not without authority upon a question which involves such series consequences; and we are indebted to the careful research of the learned attorney general and his assistant for presenting them upon the hearing. The question as to the time when a constitutional amendment shall go into effect, and what effect its adoption shall have upon the existing state of things, has received the careful consideration of the learned judge of the supreme court of Massachusetts, in an opinion found in 3 Gray, 601. Under the constitution of that state the judges were called upon by the governor to give their opinion upon several questions propounded to them, as to the effect which certain amendments of the constitution of that state had upon the tenure of office of certain officers in office at the time they were adopted. It appears that previous to the adoption of the amendments to the constitution of that state, in 1855, the executive councilors were not elected by the people; neither were the secretary, treasurer, auditor, or attorney general, and certain county officers. The amendments provided that these officers should thereafter be elected by the electors of the state. The first questions submitted read as follows:

“What is the effect, if any, of the third article of the amendment of the constitution this year adopted, upon the tenure of office of the present executive council? Will the said article affect the manner of the election of the next executive council? Under which system must vacancies in the council be filled? If under the old, up to what time?”

The learned judges start out with the proposition that the amendments, “so far as they are inconsistent with the previous provisions of the constitution, they vacate and annul them, but in all other respects the former provisions remain in force,” and then proceed to say:

“In answer to the first question, we are of the opinion that the third article of these amendments will have no effect whatever upon the tenure of office of the present members of the executive council. Even if no legislative action were necessary, there could be no election of councilors until the Tuesday next after the first Monday of November, 1855, and the councilors then chosen cannot enter upon the duties of their offices until the first Wednesday of January, 1856; at which time, or as soon thereafter as others are chosen and qualified in their places, the offices of the present council will cease. The present amendment contains no express repeal of pre-existing provisions of the constitution; it repeals them by necessary implication by providing another and different mode of filling these offices, but it cannot have that effect until it comes practically in operation.”

“But there is another consideration, equally conclusive, to the same result. The present provisions of the amendment cannot be practically carried into effect, and there can be no election of councilors by the people until the legislature shall have divided the commonwealth into eight districts. The terms are explicit: ‘The legislature, at its first session after this amendment shall have been adopted, shall divide the commonwealth into eight districts.’ This action of the legislature is,...