266 N.W. 227 (Wis. 1936), State ex rel. Nelson v. Henry

Citation:266 N.W. 227, 221 Wis. 127
Opinion Judge:Rosenberry, C. J.
Party Name:STATE EX REL. NELSON v. HENRY.
Attorney:For the appellant there was a brief by the Attorney General, Herbert A. Naujoks, assistant attorney general, and H. H. Thomas of Madison, special counsel, and oral argument by Mr. Thomas. For the respondent there was a brief by Hale & Burke of La Crosse, and oral argument by Quincy H. Hale. A bri...
Case Date:March 31, 1936
Court:Supreme Court of Wisconsin
 
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Page 227

266 N.W. 227 (Wis. 1936)

221 Wis. 127

STATE EX REL. NELSON

v.

HENRY.

Supreme Court of Wisconsin

March 31, 1936

Argued March 3, 1936.

Appeal from part of a judgment of the circuit court for Dane county: A. G. Zimmerman, Circuit Judge.

This action was begun on November 21, 1933, in the name of the state of Wisconsin, upon relation of Earl O. Nelson against Robert K. Henry, treasurer of the state of Wisconsin, praying that a peremptory writ of mandamus issue, requiring defendant as state treasurer, to reinstate the relator in the office of deputy oil inspector in the Thirteenth inspection district comprising La Crosse county and other territory. There was a trial. The court submitted one question to the jury as follows:

"In discharging petitioner and relator, Earl O. Nelson, from his position as deputy oil inspector, on or about November 30, 1934, did the defendant, State Treasurer Robert K. Henry, act arbitrarily and in bad faith?" Answer: "Yes."

The trial court not being certain whether the verdict was properly taken in a mandamus action also made and filed findings of fact. The trial court found that in the discharge of the petitioner, Robert K. Henry acted arbitrarily and in bad faith without due cause therefor, and solely to conceal the fact that he had previously discharged and was then discharging the petitioner for political purposes, and because the petitioner was not a member of the same political party as the defendant, Robert K. Henry. Judgment was entered accordingly on September 23, 1935, from part of which the defendant appeals.

That part of the judgment which adjudges that the discharge of the petitioner on November 30, 1934, was illegal, arbitrary, and not done in good faith and without due cause therefor and that the petitioner should be reinstated as therein provided, is reversed, and the cause remanded with directions to enter judgment dismissing the petition so far as the same relates to the discharge of the petitioner on November 30, 1934.

For the appellant there was a brief by the Attorney General, Herbert A. Naujoks, assistant attorney general, and H. H. Thomas of Madison, special counsel, and oral argument by Mr. Thomas.

For the respondent there was a brief by Hale & Burke of La Crosse, and oral argument by Quincy H. Hale.

A brief was also filed by Olin & Butler, attorneys, and C. J. Mathys of counsel, all of Madison, as amici curice.

OPINION

Page 228

[221 Wis. 129] Rosenberry, C. J.

The defendant has complied with so much of the judgment as required him to restore the name of the petitioner on the pay roll of the state of Wisconsin from the date of the first discharge October 31, 1933, to the time of the second discharge. Petitioner has been paid his salary down to the time of his second discharge, December 1, 1934, so that that matter drops out of the case. The only thing that is before the court is whether or not the discharge of November 30, 1934, was valid or invalid.

This case was once...

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