Martin v. Smith
|02 December 1941
|239 Wis. 314,1 N.W.2d 163
|MARTIN, Atty. Gen., v. SMITH, State Treasurer.
|Wisconsin 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.
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:
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:
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:
To continue readingRequest your trial
State ex rel. Spire v. Conway
...See, Boyett v. Calvert, 467 S.W.2d 205 (Tex.Civ.App.1971); Tilley v. Rogers, 405 S.W.2d 220 (Tex.Civ.App.1966); Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163 (1941); Hartigan v. Board of Regents, 49 W.Va. 14, 38 S.E. 698 In Hartigan v. Board of Regents, supra, a college professor contested hi......
Curtis Publishing Company v. Butts
...beyond that contemplated by the ruling in the case of New York Times Company v. Sullivan, supra." See also: Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163, 140 A.L.R. 1063. The case of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), cited in the Times case, held that in the......
State ex rel. McGaughey v. Grayston
... ... 1018, 64 S.W.2d 105; 53 ... A. L. R. 595; 93 A. L. R. 333; State ex inf. McKittrick ... v. Bode, 342 Mo. 162, 113 S.W.2d 805; Martin v. Smith, 1 ... N.W.2d 163 ... J ... Carrol Combs, Edwin L. Moore, Robert Stemmons, F. P. Sizer, ... James E. Sater, John H ... ...
State v. Wisconsin Tel. Co.
...to make the motion to dismiss in his official capacity and on behalf of the state and the public service commission. Martin v. Smith, 239 Wis. 314, 325, 1 N.W.2d 163 (1941). In this case we conclude the actions of the attorney general were within the general concept of his duties and author......