Martin v. Smith

Decision Date02 December 1941
Citation239 Wis. 314,1 N.W.2d 163
PartiesMARTIN, Atty. Gen., v. SMITH, State Treasurer.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from an Order of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.

Reversed.This action was begun on the 27th day of March, 1941, on the relation of John E. Martin, Attorney General for the state of Wisconsin, plaintiff, against John M. Smith, State Treasurer of the state of Wisconsin, defendant. On that day an alternative writ of mandamus was issued requiring the defendant to honor certain warrants issued upon him as State Treasurer or to show cause to the contrary. The respondent made and filed his return to the writ, whereupon after the making of certain stipulations, the plaintiff moved to quash the return on the ground that it did not state facts sufficient to constitute a defense to the action. From an order overruling the motion to quash, entered on the 18th day of August, 1941, the plaintiff appeals.

The facts will be stated in the opinion.

John E. Martin, Atty. Gen., and James Ward Rector, Deputy Atty. Gen., for appellant.

R. M. Rieser, of Madison, for respondent.

ROSENBERRY, Chief Justice.

Disposition of this controversy depends upon whether Clarence A. Dykstra as President of the University of Wisconsin holds an “office of trust, profit or honor in this state”, contrary to the provisions of sec. 3, art. XIII of the Wisconsin constitution, which is as follows:

“Eligibility to office. Section 3. No member of congress, nor any person holding any office of profit or trust under the United States (postmasters excepted) or under any foreign power; no person convicted of any infamous crime in any court within the United States; and no person being a defaulter to the United States or to this state, or to any county or town therein, or to any state or territory within the United States, shall be eligible to any office of trust, profit or honor in this state.”

The information and the return are not subject to criticism because of their length but we do not find it necessary to state all of the matters alleged therein and shall state only so much thereof as is necessary to the determination of whether Clarence A. Dykstra as President of the University of Wisconsin holds an “office of trust, profit or honor” under the constitution and laws of this state.

It appears that on the 9th day of October, 1940, Clarence A. Dykstra was the duly appointed and acting President of the University of Wisconsin and had been such for some time prior thereto; that on that day he was notified by the President of the United States that he had been appointed to the office of Administrator of the Selective Training and Service Act 1940, 50 U.S.C.A. Appendix § 301 et seq., an office of profit and trust under the United States. His appointment was confirmed on October 15, 1940, by the Senate of the United States, and on October 17, 1940, he qualified for said office and entered upon the discharge of his duties as such officer; that on the 26th day of October, 1940, the Board of Regents met and adopted a resolution permitting President Dykstra to accept the invitation of the President of the United States to become Director of Selective Service for such temporary period of time as may become necessary in the existing national emergency, it being understood that President Dykstra will continue to be in executive charge of the affairs of the University as President of the University and that any salary paid to him by the federal government, less expenses, will be refunded to the University. The resolution further provided for a committee with administrative authority to act under the direction of the President during the interim.

In accordance with the understanding had with the Board of Regents at the time of his appointment, President Dykstra has continued to act as President of the University, visiting Madison upon several occasions in the discharge of his duties, all in accordance with the understanding had with the Board of Regents; that no other person has claimed to be President of the University of Wisconsin nor has any other person received the salary of the President during the period in question; that the name of Clarence A. Dykstra was certified to the proper officials of the University of Wisconsin for the month of October, 1940, and his salary as President was duly paid; that his name was again certified on the November payroll, the payroll was audited by the Secretary of State and two warrants were drawn upon the State Treasurer for payment of the salary due for the month of November, 1940, one warrant for $62.50, payable to the Treasurer of the Teachers Insurance and Retirement Fund, was paid by the State Treasurer. The other warrant, dated December 5, 1940, was recalled by the Secretary of State and held by him until March 19, 1941, when the warrant was again sent to the State Treasurer for payment. Payrolls of the University of Wisconsin for the months of December, 1940, and January and February, 1941, in accordance with the usual custom, carried the name of Clarence A. Dykstra as President of the University of Wisconsin, but the Secretary of State refused to allow the amount certified to be due the said Clarence A. Dykstra in either of the said payrolls until March 19, 1941, when amounts certified as due were allowed and the several warrants drawn, payable to Clarence A. Dykstra in accordance with the payrolls and certified. It is further alleged:

“The said defendant, John M. Smith, as Treasurer of the State of Wisconsin, notwithstanding that the said warrants were presented to him for payment on March 19, 1941, refused and still refuses to honor them or either of them notwithstanding the fact that ample funds are appropriated and monies are in the state treasury sufficient in amount for the purpose of paying the same. The said John M. Smith does not base his refusal to honor the warrants upon the form thereof or upon any claim that monies sufficient for that purpose are not held by him as State Treasurer. His refusal to pay is based upon the claim that as President of the University of Wisconsin the said Clarence A. Dykstra was an officer of the State of Wisconsin; that by acceptance of the office of Administrator of the Selective Service Act, the said Clarence A. Dykstra vacated his office as President of the University of Wisconsin by reason of the provisions of Article XIII, section 3 of the Wisconsin Constitution, and that, consequently the said Clarence A. Dykstra is not entitled to payment of the salary attached to the position of President of the University of Wisconsin for the period in question.”

By the return, the respondent made certain admissions and denials, among other things, denying that Clarence A. Dykstra has been President of the University of Wisconsin since October 17, 1940. He admits that Clarence A. Dykstra performed some of the functions of President and alleges that out of a total of 107 days that elapsed since October 17, 1940, and prior to February 1, 1941, Clarence A. Dykstra spent 106 days in Washington, D. C.; that during that time the functions of the office of the President of the University were performed by the committee set up by the Board of Regents; and as a further reason for his refusal to honor the warrants in question, the respondent alleges:

“1. That said Clarence A. Dykstra has been the duly elected President of the University of Wisconsin, an instrumentality of the State of Wisconsin, created pursuant to and by direction of the Constitution of the State of Wisconsin, and as such was up to the 17th day of October, 1940, the duly qualified President of the University of Wisconsin; that the duties and responsibilities of said office of President of the University of Wisconsin are set forth in Section 36.12 of the Statutes and in addition said President of the University of Wisconsin is required by the By-Laws of the Board of Regents (Section 3, Chapter 4 thereof) to perform and carry out the following additional and further official duties.

Section 3. The President of the University shall be the executive head of the institution and shall hold his position at the pleasure of the Board of Regents. He shall generally manage and direct the University, carry out the policies and duties as set forth by the Board of Regents, and as President of the University by authority of the Board of Regents and subject to its approval shall make and enforce such rules and regulations as may be necessary or incident thereto and shall make appointments or accept resignations of personnel with rank less than that of associate professor and shall recommend to the Board of Regents the appointment of personnel with a rank equal to or greater than associate professor. The President of the University shall at each meeting of the Board of Regents present a report on actions taken by the administration of the University including appointments, resignations and regulations since the last meeting of the Board of Regents.’

“2. That the University of Wisconsin is what is commonly known as a Land Grant College, and as such receives as part of its income, large sums of money from the Federal Government, and as such is subject to the provisions of what is commonly known as the Morrill Act [7 U.S.C.A. § 301 et seq], of the Government of the United States concerning the establishment and conduct of military training at Land Grant Colleges. Moreover, the University of Wisconsin has likewise elected to take advantage of and come under the provisions of the National Defense Act and particularly Sections 40-47C of such Act, [39 Stat. 191; 41 Stat. 776] referring to the Reserve Officers Training Corps, and is now subject to all of the rules and regulations prescribed by the War Department of the United States for the government thereof, by reason of such acceptance, and conducts both the regular and the advance courses of instruction in a Department of...

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