State ex rel. Buell v. Frear

• Citation: 131 N.W. 832,146 Wis. 291
• Parties: STATE EX REL. BUELL v. FREAR, SECRETARY OF STATE.
• Decision Date: 01 June 1911
• Court: United States State Supreme Court of Wisconsin

146 Wis. 291

131 N.W. 832

STATE EX REL. BUELL

v.FREAR, SECRETARY OF STATE.

Supreme Court of Wisconsin.

May 2, 1911.

Opinion Filed June 1, 1911.

Mandamus by the State, on the relation of C. E. Buell, against James A. Frear, Secretary of State. Judgment for relator.

This is an original action of mandamus brought by C. E. Buell, chairman of the state civil service commission, to compel James A. Frear, as Secretary of State, to audit a bill for services as commissioner in favor of said relator, and to issue a warrant on the State Treasurer for the payment of the same. The respondent, appearing by the Attorney General, has moved to quash the alternative writ of mandamus, for the reason, as stated in the motion, that “neither the petition herein nor said alternative writ states facts showing that the relator is entitled to a writ of mandamus as prayed.”

In this case it is decided:

(a) Chapter 363 of the Laws of 1905, regulating “appointments to, and promotions in, the civil service of this state * * * according to merit and fitness, to be ascertained as far as practicable by examinations,” and providing for the appointment of a civil service commission and granting it authority for carrying into effect the provisions of the act, contains in its provisions a proper, general scheme, and is an appropriate exercise of the legislative function to regulate the civil service of the state.

(b) The authority conferred on such commissioners by the provisions of this act is therein properly restricted to the exercise of the administrative functions of making reasonable rules and regulations and of exercising such other administrative powers as are appropriate, under and pursuant to law, for carrying the legal regulations of the civil service into effect.

(c) The general and dominant provisions of the act form a complete and proper system of regulation of the subject. If any of the minor provisions are unconstitutional, a matter not now decided, they do not affect the question of the constitutionality of the law in its general features.F. C. Winkler and Glenway Maxon (Olin & Butler, of counsel), for relator.

L. H. Bancroft, Atty. Gen., and Russell Jackson, Deputy Atty. Gen., for respondent.

PER CURIAM.

The motion to quash the alternative writ is denied, and the alternative writ is made peremptory. The Secretary of State is commanded to proceed to audit the relator's claim and to issue to him a warrant upon the State Treasurer for the payment of the amount found due him upon such audit. No costs are allowed to either party.

An opinion will be filed in the near future more fully expressing the court's views upon the questions arising in this proceeding.

Opinion.

SIEBECKER, J.

By section 2 of chapter 363, Laws 1905, it is enacted that: “Appointments to, and promotions in the civil service of this state shall be made only according to merit and fitness, to be ascertained as far as practicable by examinations, which so far as practicable, shall be competitive. * * * No person shall be appointed, transferred, removed, reinstated, promoted or reduced as an officer, clerk, employee or laborer in the civil service under the government of this state, in any manner, or by any means, other than those prescribed in this act.” This declares the purpose of the Legislature, is evidence of the objects of the provisions of this act, and evinces an intent to change the previously existing practice and method of selecting persons for the state civil service. An examination of the context of the act shows that it embodies a legislative endeavor to remedy existing evils in the civil service and to promote efficiency in the administration of state affairs. It was a well-known and recognized fact that the former system of selecting persons for the public service had brought about a practice which largely disregarded the elements of skill and fitness of the servant for the service and omitted consideration of meritorious, faithful, and deserving service of the servant. It established a political practice of bestowing positions in the public service on persons who were chiefly interested in promoting their personal political interests, and those of their superiors, through whom they secured appointments and expected future preferment. These practices produced in their many obnoxious features a deplorable state of inefficiency, and the uncertainty of tenure in the service tended obviously to demoralize public service. The object of this statute is to correct some of these evils, and to place the public service on a basis of fitness and efficiency, through recognition of skill and proficiency upon entrance into the service and of experience and merit in securing promotions, and by giving security of continuance in the service. The various provisions of the act are well calculated as the means for carrying these legislative objects and purposes into effect, and constitute an appropriate scheme for correcting existing evils and for improving the civil service, thereby promoting good government.

[1] The act is assailed by the respondent upon the ground that it abridges the privileges and immunities of the citizens of the state, in that it creates arbitrary and unlawful discriminations between different classes of citizens as regards the right to enter upon and continue in the public service. This contention seems to be founded on the idea that any citizen is guaranteed the unqualified right to enter the public service regardless of his skill and fitness for the service.

[2] The privilege of holding a public office is not in its nature of the class of rights which are guaranteed by the Constitution as the natural and inalienable rights of every citizen. It has never been treated as a natural right in our governmental system. It is in its nature a privilege which is extended to the citizens of the state upon such conditions and terms as the people in their sovereign capacity may determine. As is stated in Conner v. Mayor, etc., of New York, 5 N. Y. 283 (opinion, page 295): “Public offices * * * are not incorporeal hereditaments, nor have they the character or qualities of grants. They are agencies. With few exceptions, they are voluntarily taken, and may at any time be resigned. They are created for the benefit of the public, and not granted for the benefit of the incumbent. Their terms are fixed with a view to public utility and convenience, and not for the purpose of granting the emoluments during that period to the office holder.” In State ex rel. Tesch v. Von Baumbach, 12 Wis. 310, this court, at an early day in the history of this state, speaking of the people's power concerning public offices, of their right to create constitutional offices, and of the legislative power concerning them, states: “As to all such (constitutional) offices and public trusts, to which the people, in the exercise of their paramount authority, have impliedly declared who shall be eligible, either by prescribing special circumstances which shall qualify, or by reserving to themselves or to the appointing authorities a certain freedom of choice there are very obvious reasons for holding that eligibility is in the nature of a constitutional right, and that the Legislature possesses no power of exclusion not given by the Constitution; but it is manifest that those reasons cannot be applied to a mere statutory office which the Legislature may create or abolish at will, and concerning which the Constitution contains no express provisions.” It is furthermore declared that public offices omitted from specific constitutional regulation “are subjected to the discretion of the Legislature, which represents the sovereign power of the state, and can make such rules as it deems wholesome and proper for the maintenance of good government.” See, also, State v. Douglas, 26 Wis. 428, 7 Am. Rep. 87;State v. Samuelson, 131 Wis. 499, 111 N. W. 712;State v. Anson, 132 Wis. 461, 112 N. W. 475;Fordyce v. State, 115 Wis. 608, 92 N. W. 430. In the case last cited (opinion, page 614 of 115 Wis., page 432 of 92 N. W.) this court declares: “The right to hold office under our political system is not a natural right but exists only and by virtue of some law expressly or impliedly creating or conferring it. It may be controlled by the Constitution, but, when that instrument does not prescribe the qualifications, it is the province and the right of the Legislature to declare upon what terms and subject to what conditions the right shall be conferred. * * * In offices created by the Legislature, the right of the Legislature to demand such additional qualifications as the nature of the particular office may reasonably require follows legitimately from the rule laid down in the Von Baumbach Case.” We refer to these expressions in former adjudications of this court at length to show that the power to create public offices and the right to prescribe the terms and conditions upon which they may be held by citizens rests with the people in their sovereign capacity, that no natural right thereto exists, and that no such right is guaranteed or conferred on the citizen by the Constitution. Shaw v. Marshalltown, 131 Iowa, 128, 104 N. W. 1121, 10 L. R. A. (N. S.) 825. In our system of government no official power is vested in any of the individuals composing the state, and such power can only be exercised when it has been bestowed by the people through their governmental agencies in parceling out its official functions. The very conception of an office as a bestowal of a part of the function of a state necessarily implies that its functions are to be administered by individuals who possess the qualifications to exercise and perform them. To accomplish this, the state must obviously possess the power to ascertain the existence of such qualifications before selecting the officer, and to prescribe regulations to carry such power into effect. We have shown that, when this is not done by the people...