State ex rel. Hazelton v. Turner

• Decision Date: 06 November 1918
• Parties: STATE EX REL. HAZELTON v. TURNER, CIRCUIT JUDGE, ET AL.
• Court: Wisconsin Supreme Court

168 Wis. 170

169 N.W. 304

STATE EX REL. HAZELTON

v.TURNER, CIRCUIT JUDGE, ET AL.

Supreme Court of Wisconsin.

Nov. 6, 1918.

Mandamus by the State of Wisconsin, on the relation of G. W. Hazelton, against W. J. Turner, Circuit Judge, and another. Writ denied.

This is an action of mandamus, brought in this court to compel the defendant W. J. Turner, as circuit judge, to revoke an order terminating the authority of the relator to act as court commissioner in and for Milwaukee county, and also to revoke an order appointing the defendant Max Nohl court commissioner in said county in place of relator. The facts in the case are set forth in the return to the writ:

Prior to May 27, 1905, the relator held the office of court commissioner in Milwaukee county. On this date he held the office pursuant to an appointment which created a term to expire the first Monday of January, 1906. On May 27, 1905, he received and accepted the office of United States commissioner for a term of four years from the last-named date. Thereafter the relator received successive appointments to these two offices. On September 18, 1913, defendant Judge Turner appointed the relator to the office of circuit court commissioner; no term being stated. The relator claims the right to the office under this appointment. At the time of this appointment Judge Turner was holding office under a term which expired the first Monday in January, 1915. The relator, after his first appointment, May 27, 1905, to the office of United States commissioner, received, accepted, qualified, and served under successive reappointments to said office, each for a term of four years; the last being dated May 10, 1917. The claim that the relator, by holding the federal office, had vacated his office of circuit court commissioner, was called to the attention of the defendant Judge Turner in December, 1917. The defendant Nohl had been circuit court commissioner; his term expiring January 7, 1918. The defendant Nohl applied to Judge Turner for appointment to fill the vacancy alleged to exist by reason of relator's acceptance of the federal office. The defendant Judge Turner was in Florida at the time, and after some communication with the relator appointed the defendant Nohl to fill the office formerly occupied by relator, and which he regarded vacant on account of the acceptance by relator of the federal office. The appointment which was made in Florida was duly filed, and the defendant Nohl qualified and entered upon the duties of his office. A question being raised as to the validity of the appointment made by Judge Turner while out of the state of Wisconsin and in Florida, Judge Turner, after his return to the state and while in Milwaukee county, reappointed the defendant Nohl, and the latter again accepted and qualified.

The relator demurred to the return, and the issues before the court raise questions of law.G. W. Hazelton, of Milwaukee, in pro. per.

Doerfler, Green, Bender & McIntyre, of Milwaukee (Walter H. Bender, of Madison, of counsel), for defendants.

KERWIN, J. (after stating the facts as above).

The contention on the part of the relator is: (1) That the defendant Judge Turner was in error in his conclusions to the effect that under the state Constitution the relator's acceptance of the federal office vacated the state office; hence the appointment of the defendant Nohl was unauthorizedand void. (2) That the appointment of defendant Nohl was void, because made by defendant Judge Turner while he was without the state of Wisconsin. (3) That the office of relator could not be abbreviated, nor could he be deprived of it without notice and hearing.

[1] I. We see no escape from the proposition of law that the acceptance by the relator of the office of United States commissioner operated to vacate ipso facto his office of circuit court commissioner. The constitutional provision particularly lays down the rule which governs this case as follows:

“No member of Congress, nor any person holding any office of profit or trust under the United States (postmasters excepted), * * * shall be eligible to any office of trust, profit or honor in this state.”

This language is clear, and leaves no question for consideration as to the incompatibility of the offices. Section 3, art. 13, Constitution of Wisconsin. Nor can there be any question but what the office of court commissioner is an office of profit or trust under the United States. It is clearly an office. In re Appointment Revisors, 141 Wis. 592, 124 N. W. 670. It is equally clear that it is an office of both profit and trust, and is an office under the United States. United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463;United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482;United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; U. S. Comp. St. Anno. 1916, § 1333, p. 2189.

The relator seems to rely upon United States v. Berry (D. C.) 2 McCrary, 58, 4 Fed. 779, and State ex rel. Wheeler v. Nobles, 109 Wis. 202, 85 N. W. 367; but a careful examination of these cases shows that they are distinguishable from the instant case and not controlling on the question now before us. Foltz v. Kerlin, 105 Ind. 221, 4 N. E. 439, 5 N. E. 672, 55 Am. Rep. 197; Throop on Public Officers, § 39;...