State ex rel. Anderson v. Barlow

• Decision Date: 04 June 1940
• Citation: 235 Wis. 169,292 N.W. 290
• Parties: STATE ex rel. ANDERSON et al. v. BARLOW, Com'r of Taxation.
• Court: Wisconsin Supreme Court

235 Wis. 169

292 N.W. 290

STATE ex rel. ANDERSON et al.

v.BARLOW, Com'r of Taxation.

Supreme Court of Wisconsin.

June 4, 1940.

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

Reversed.

This action was begun on April 9, 1940, by Esther Anderson and eight others, plaintiffs, asking that a peremptory writ of mandamus issue requiring Elmer E. Barlow, Commissioner of Taxation, defendant, to restore the said petitioners to their respective positions, from which they allege that they have been unlawfully separated. The Wisconsin State Employees Association was also joined as plaintiff. The defendant moved to quash the writ. From the order entered on May 1, 1940, overruling the motion to quash, the defendant appeals.

The facts will be stated in the opinion.John E. Martin, Atty.Gen., and James Ward Rector, Deputy Atty. Gen., for appellant.

Bull, Biart & Bieberstein, of Madison, for respondents.

Padway, Goldberg & Tarrell, of Milwaukee, amici curiae.

ROSENBERRY, Chief Justice.

We shall state the facts alleged in the complaint on behalf of the petitioner Esther Anderson. It will not be necessary to particularize the facts with reference to the length of employment, etc., of the other petitioners. The result is the same in all cases. While the facts vary somewhat, they present the same questions for decision.

From the petition it appears that Esther Anderson is a citizen of Wisconsin; that she had been an employee in the Wisconsin Tax Commission since May 7, 1920; that she served continuously, first as clerk, then assistant clerk, then junior clerk, and that by such service she acquired all the rights and privileges belonging to the position under ch. 16, Wisconsin Stats., known as the civil service law; that she fully and faithfully performed all of the duties incumbent upon her as such employee.

That the defendant Elmer E. Barlow was appointed commissioner of taxation on the 3d day of October, 1939, which appointment was duly confirmed on the 4th day of October, 1939, and that the said Elmer E. Barlow is now the duly qualified commissioner of taxation of the state of Wisconsin; that on the 25th day of March, 1939, the petitioner received a notice signed “Wisconsin Department of Taxation, Elmer E. Barlow, Tax Commissioner,” advising her that her services with the department would terminate on the evening of March 30, 1940; that on the 20th day of October, 1939, the defendant Elmer E. Barlow filed with the acting director of personnel a document known as a payroll, which read as follows:

“State of Wisconsin Department of Taxation

“I hereby certify that the following named persons have been employed in the Dept. of Taxation in the positions named, during the month of October, 1939, and that they are entitled to pay in the amount set opposite their respective names.

“Signed this 20th day of October, 1939.

“Elmer E. Barlow, Tax Commissioner.”

Upon said list appeared the name of Esther Anderson, Junior Clerk; that accompanying said payroll was a letter addressed to the Bureau of Personnel, signed “State Department of Taxation, Elmer E. Barlow, Tax Commissioner,” which read as follows:

“I am submitting herewith payroll for the newly created Department of Taxation of the part of the month of October, 1939, in which this department has been in existence.

“The submission of this payroll is not intended in any way to adopt or approve any of the employees. I have been unable to make a survey and determination of the employees in this department in the short period of time that I have had, as they are located in all sections of the state. I am therefore submitting this payroll conditioned that no established right of any employee is determined by the submission of the same.”

Thereafter the director of personnel duly certified the payroll and the petitioner was paid the sum set opposite her name.

On November 23, 1939, a similar payroll was filed for the month of November which was accompanied by a letter addressed to the Bureau of Personnel, signed “State Department of Taxation, Elmer E. Barlow, Tax Commissioner,” which read as follows:

“The November payroll for the Department of Taxation is being submitted, and I desire to call your attention to the fact that it has been impossible to make a complete survey of the department so as to determine the permanency of employees.

“I am assuming that the filing of this payroll does not in any way eliminate the privilege contained in the law creating this department whereby it may be reorganized and employees discharged as the interest of the department may determine. I assume it will take at least two months to complete the survey that is being made at this time which I will be glad to discuss with you or the Commissioner at any time.”

The payroll so submitted was certified and the petitioner paid the amount stated therein as due her.

That thereafter on the 12th day of December, 1939, the 18th day of January, 1940, the 20th day of February, 1940, and the 20th day of March, 1940, the defendant Elmer E. Barlow, Tax Commissioner, duly filed with the acting director of personnel a payroll similar in form and character to that described for the month of October but no communication from the said Elmer E. Barlow accompanied said payroll for December, January, February and March; that said payrolls were duly certified and the amounts designated as due the petitioner were paid; that the petitioner at all times covered by the submission of the payrolls described had all the rights of a permanent employee in the competitive division of the classified service of the state of Wisconsin, guaranteed her by the provisions of ch. 16, Wisconsin Stats.; that no charges have been filed against the petitioner or any reason assigned for her discharge.

It is further alleged on information and belief that the defendant Elmer E. Barlow requested the bureau of personnel to conduct competitive examinations for the positionof deputy supervisor of assessments; that said examination was duly conducted; that said bureau of personnel has duly certified from the list resulting from such examinations the names of eligibles and that the defendant has made appointments to said position of deputy supervisor of assessments of persons now serving therein and intends to make further appointments to such positions and that the duties assigned or to be assigned to such persons are identical with those of some of the petitioners.

It is further alleged “on information and belief, that the aforesaid discharges of said petitioner employees were illegal, arbitrary, not done in good faith, without cause therefor, were made for political reasons.”

It is further alleged that the rules of the bureau of personnel require that when a reduction in force is made permanent employees shall be laid off in inverse order to their length of service, unless cause is shown therefor; that persons have been retained in employment in the department of taxation whose length of service is less than that of the petitioner; that the employment of the petitioner was not exempt from the provisions of ch. 16 and is subject to the civil service law of the state of Wisconsin.

It is further alleged upon information and belief that a demand for reinstatement made upon the defendant would be useless and the petitioner seeks an order reinstating her in her position as an employee and the restoration of her name to the payroll of the department of taxation.

In order to present the question for decision it will be necessary to outline the background of the controversy presented by the pleadings in this case. Prior to September 6, 1939, there was in existence a state board known and designated as the Tax Commission. This tax commission was created by ch. 380, Laws of 1905, now sec. 73.01, Wisconsin Stats.1937. It was composed of three commissioners appointed by the governor and confirmed by the senate. The form of its organization was prescribed by sec. 73.02, its powers and duties were defined by sec. 73.03. Chapter 412 of the Laws of 1939, published September 6, 1939, repealed secs. 73.01 and 73.02, thus abolishing the state board known as the tax commission. Section 7 of ch. 412 provides: “The members of the tax commission at the effective date of this act shall continue to hold office and to exercise the functions, powers and duties heretofore vested in them, except as otherwise provided in this section, until the appointment and qualification of the commissioner of taxation and two or more members of the board of tax appeals, at which time the tax commission as provided for in section 73.01, statutes of 1937, is abolished.”

A new section numbered 73.01 was created which provides: “There is created a separate department of state government to be designated and known as ‘Wisconsin Board of Tax Appeals' which shall be composed of three members. The word ‘board’ as used in this section, and the words ‘board of tax appeals' used elsewhere in the statutes, refer to said Wisconsin board of tax appeals.”

The act also created a new section numbered 73.02. Subsec. (2) thereof provides: “The governor by and with the advice and consent of the senate shall appoint a commissioner of taxation, who shall serve for a six-year term.” Subsec. (3) requires the department of taxation to consist of five divisions. Subsec. (4) provides that the commissioner should appoint a single head for each division.

On behalf of the respondent it is contended that ch. 412 applies only to new positions; that the functions of employees of the tax commission continued and that the act creating the department of taxation did not separate the respondent from the state service; that she is therefore entitled to all her legal rights under the civil service law. The defendant contends that by virtue of sec. 6 of ch. 412 he was given the right to select employees of the department of taxation from the employees of the tax commission which was...