State ex rel. Gubbins v. Anson

• Citation: 132 Wis. 461,112 N.W. 475
• Parties: STATE EX REL. GUBBINS v. ANSON ET AL.
• Decision Date: 20 June 1907
• Court: United States State Supreme Court of Wisconsin

132 Wis. 461

112 N.W. 475

STATE EX REL. GUBBINS

v.ANSON ET AL.

Supreme Court of Wisconsin.

June 20, 1907.

In Banc. Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Warren D. Tarrant, Orren T. Williams, and J. C. Ludwig, Judges.

Quo warranto by the state of Wisconsin, on the relation of Silas E. Gubbins, against Charles H. Anson and others. Plaintiff appeals from an order sustaining a demurrer to the complaint. Affirmed.W. J. Turner, C. F. Hunter, and John J. Cook, for appellant.

Francis E. McGovern and Roger M. Trump, for respondents.

Sanborn, Lamoreux & Pray and H. B. Walmsley, as amici curiæ.

DODGE, J.

The relator, as an elector and taxpayer of Milwaukee, seeks, by quo warranto, to test the title of the respondents to office of jury commissioners, appointed by the circuit judges for the Second judicial circuit in compliance with section 2533a, St. 1898, and claiming to exercise the functions of that office under that and following sections.

The appeal is from order sustaining demurrer to the complaint upon the ground of relator's incapacity to sue, at least without joining Attorney General, and for absence of facts to constitute cause of action. The ground of attack is upon the constitutionality of the law creating the office. The principal assault is for asserted breach of section 9 of article 13 of the state Constitution, the provisions of which, so far as germane to the discussion, are as follows: “All county officers whose election or appointment is not provided for by this Constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the Legislature shall direct. * * * All officers whose offices may hereafter be created by law shall be elected by the people or appointed as the Legislature may direct.” It is urged that these jury commissioners are county officers; that their offices have not been created, in a constitutional sense, since the adoption of the Constitution, hence that the incumbents must either be elected by the electors or appointed by some county authority; and that the circuit courts or circuit judges of the state are not county authorities. It is not contended that at the time of the adoption of the Constitution any officers known as jury commissioners existed in this state either as county officers, or otherwise; but it is contended that the selection of names to go upon the jury list for the circuit courts of the state was at that time imposed upon certain county officers, who also had various other duties, and that the creation of an officer to exercise that function is but an evasion of the constitutional restriction. This section of our Constitution was taken, substantially verbatim, from the Constitution of 1846 of New York. Const. 1846, art. 10, § 2. It had received no authoritative construction by the ultimate court of that state prior to its adoption here in 1848; but, before serious questions arose in this state upon it, it did receive exhaustive discussion and construction in an opinion by Denio, J., in People ex rel. Wood v. Draper, 15 N. Y. 533, both the reasoning and decision in which were almost at once accepted and approved by this court. State v. Hastings, 10 Wis. 525;Chicago & Northwestern Ry. Co. v. Langlade County, 56 Wis. 614, 14 N. W. 844;State ex rel. Hamilton v. Krez, 88 Wis. 135, 59 N. W. 593;O'Connor v. City of Fond du Lac, 109 Wis. 255, 85 N. W. 327, 53 L. R. A. 831;State ex rel. Harley v. Lindemann (Wis.) 111 N. W. 214;State ex rel. Williams v. Samuelson (Wis.) 111 N. W. 712. The general propositions declared in that case, and so accepted and approved, were that the purpose of this section of the Constitution was to protect in a general way the policy of local self-government in cities and counties, to the extent at least that such officers as exercised the functions of such local government at the time of the adoption of the Constitution should continue to be chosen by the locality, and from this was deduced the view that “all other county officers” in the first sentence of the above quotation meant those existing when the Constitution was adopted, and that, while the Constitution in express terms permitted other method of selection of incumbents of offices thereafter to be created, it could refer in that regard only to offices and officers different in kind from any formerly existing, otherwise the effect of the last clause would be to nullify the former by the mere creation of offices new in name, but in all practical effect mere perpetuates of the old ones. Hence was declared a limitation of the meaning of the words “offices which may hereafter be created by law” to such as were not mere substitutes or equivalents for pre-existing offices. The idea is expressed in the Draper Case as prohibition, notwithstanding mere change of name or colorable modification of functions. In People v. Raymond, 37 N. Y. 428, where part of the former duties of assessors were transferred to a newly created board of commissioners, the latter were held to merely perpetuate the old office, and that dividing duties of an old office would not justify the new one to be considered “created” after the Constitution within the meaning of that word. In Metropolitan Board of Health v. Heister, 37 N. Y. 661, a statute subsequent to the Constitution had created a board of health with the ordinary powers of such a board. Prior to the Constitution such health powers had been scattered amongst various officers, some of them being conferred upon the mayor, some upon the common council, some upon health wardens and some upon police officers, of one degree or another, and it was said that such board, if for the same municipality, must be considered as holding offices existing at the time of the Constitution, although no one officer at that time exercised all the powers, and although, perhaps, no separate officer then existed for the exercise of any of them. In Chicago & Northwestern Ry. Co. v. Langlade County, at page 626 of 56 Wis., page 849 of 14 N. W., it was said that the last clause of section 9, art. 13, “has no reference to any of the kind of offices provided for in the Constitution, but only to other kind of offices thereafter created.” In O'Connor v. City of Fond du Lac, at page 267 of 109 Wis., page 332 of 85 N. W. (53 L. R. A. 831), the clause requiring local selection of all other officers was said to apply to all local officers “according to the then known scheme for local self-government.” In State ex rel. Williams v. Samuelson, at page 716 of 111 N. W., the office permitted to be created by the Legislature were described as those the duties of which “are not such as were incident to some county office at the time of the formation of the Constitution.” State v. Hastings, supra, McCabe v. Mazzuchelli, 13 Wis. 478,State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84,State v. Cunningham, 88 Wis. 83, 57 N. W. 1119, 59 N. W. 503, and Warner v. People, 2 Denio (N. Y.) 272, 43 Am. Dec. 740, present unconstitutional attempts to withdraw from constitutional officers portions of their powers and to confer the same on others. It will thus be observed that the courts have indicated a reasonably close discrimination in recognizing as a newly created local officer one who exercised any duties which at the time of the Constitution were performed by local officers, and, while it may be that some functions were at the time of the Constitution imposed upon then existing town, city, or county officers which were so entirely incidental and casual and so without relation to the characteristics of their respective offices, or, indeed, of local government at all, that, when the Legislature might deem it best to relieve such officers of such incidental duties and confer them upon one specially created to exercise them, the latter's office may with propriety be held to be newly created, yet the line of demarcation between such a situation and that condemned by the various authorities has not as yet been drawn, and will require much nicety of discrimination in its location. In view of other reasons which seem to us sufficient, it will not be necessary in the present case to decide whether it would have been permissible to gather the various duties and functions involved in the make-up of the jury list into the hands of a newly designated county officer without subjection to that clause of the constitutional article under discussion requiring a selection by local authority. We proceed to consider those reasons.

The extent to which local self-government per se is withdrawn by the Constitution from legislative interference has been a subject of much discussion and more declamation. It has been declared and reiterated in most of the cases already cited, both with reference to the Constitution of New York and the Constitution of this state, that the Constitution addressed itself to an already organized civil government, which included, as a very important element thereof, the control of some local affairs by the towns, villages, cities, and counties existing in the state; and it has been broadly contended, not without support from dicta in decided cases, that a purpose must be inferred from the Constitution to preserve intact and to their fullest extent the functions of local government which were existent at the time of the Constitution. The trouble with this view is that the Constitution nowhere in terms restricts the Legislature from modifying or diminishing the scope of local self-government. That instrument, in the broadest terms, confers all legislative power upon the Legislature; and within that legislative power is, of course, the prescribing of the extent to which powers of government shall be delegated to subordinate political divisions of the state. Hence, in order that a court may hold invalid any attempted legislation in that respect, there must be found elsewhere in the Constitution...