State ex rel. Nelson v. Henry

• Decision Date: 31 March 1936
• Citation: 266 N.W. 227,221 Wis. 127
• Parties: STATE EX REL. NELSON v. HENRY.
• Court: Wisconsin Supreme Court

221 Wis. 127

266 N.W. 227

STATE EX REL. NELSON

v.HENRY.

Supreme Court of Wisconsin.

March 31, 1936.

Appeal from part of a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Judge.

Reversed.

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.

James E. Finnegan, Atty. Gen., Herbert H. Naujoks, Asst. Atty. Gen., and H. H. Thomas, Special Counsel, of Madison, for appellant.

Hale & Burke, of La Crosse, for respondent.

Olin & Butler and C. G. Mathys, all of Madison, amici curiæ.

ROSENBERRY, Chief Justice.

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 before in this court and was reported in (1934) 216 Wis. 80, 256 N.W. 714. The case came up on a motion to quash the petition and an order quashing the petition was reversed and the cause remanded. Thereupon the petition was amended so as to set up two causes of action one relating to the discharge of October 31, 1933, and the other relating to the discharge of the relator on November 30, 1934. Return was made to the amended petition and upon the issue thus made there was a trial.

The facts in relation to the second discharge are as follows: Under date of November 26, 1934, the defendant notified the petitioner that pursuant to section 16.24 he was discharged. The grounds assigned were briefly: (1) Insubordination; (2) failure and neglect of duty; (3) refusal to obey instructions; (4) negligence in the performance of duties; (5) carelessness and negligence in obtaining information; (6) failure to co-operate. The petitioner was given an opportunity as required by statute to explain, the director of the bureau of personnel was notified, and the requirements of the statute were in all respects complied with. Although the court in its formal findings of fact found that the discharge was “in bad faith, without due cause therefor,” this finding must be considered as something in the nature of a legal conclusion for the reason that during the course of the trial the following proceedings were had: After the relator had presented his evidence in support of the petition and when the defendant was introducing proof in support of his contention that the petitioner was discharging for just cause, the court made the following statement:

“The court might say at this time for the benefit of you gentlemen, and also the jury, and it might shorten the matter somewhat, that the only issue that will be submitted to the jury here is as to whether this man was discharged unarbitrarily and not in good faith; that will be the only issue; and in connection with that the court will say to the jury, in effect, that there was sufficient reason demonstrated by the evidence and the record herein to enable the State Treasurer to have discharged this man, for good cause, sufficient in law, providing he did so unarbitrarily and in good faith. Now that is the law.”

In its instructions to the jury, the court charged the jury as follows:

“And in your consideration of the answer to this question you are to assume that sufficient reason has been given and proven to make the removal and discharge of Nelson valid and conclusive,--if not made arbitrarily and in bad faith for reasons other than those or any of them set forth by the State Treasurer in his notice of discharge given to Nelson.”

This charge to the jury was given pursuant to a statement made during the course of the trial to the effect that it would so charge the jury. The statements of the court made during the course of the trial and in its instructions to the jury were made advisedly. A careful review of the evidence offered leads to the conclusion that it was the duty of the court, which the court in effect performed, to direct the jury that the existence of a just cause was established by the evidence so that no question in relation thereto for the jury existed under the evidence. No useful purpose would be served by setting out the evidence in detail. It is held that upon the record it appears that at all times there existed in fact a just cause for the discharge of the petitioner as of November 30, 1934. While most of the evidence in the case was directed to proof of the fact that the discharge of the petitioner was made for political reasons, the court submitted no...