State ex rel. Heim v. Williams

• Decision Date: 13 May 1902
• Citation: 114 Wis. 402,90 N.W. 452
• Parties: STATE EX REL. HEIM v. WILLIAMS.
• Court: Wisconsin Supreme Court

114 Wis. 402

90 N.W. 452

STATE EX REL. HEIM

v.WILLIAMS.

Supreme Court of Wisconsin.

May 13, 1902.

Appeal from circuit court, Milwaukee county; Lawrence W. Halsey, Judge.

Action in the nature of quo warranto on the relation of Carl Heim against Orren T. Williams. From a judgment for defendant, relator appeals. Affirmed.

At the time of the regular spring election in April, 1897, George E. Sutherland was elected judge of the superior court of Milwaukee county for a full term of six years from the first Monday in May, 1897, under section 4, c. 67, Laws 1891, creating an additional superior judge of said court. He died in September, 1899. The governor appointed the respondent, Orren T. Williams, “judge of the superior court of Milwaukee county, vice George E. Sutherland, deceased, to execute and fulfill the duties of that trust for the residue of the term for which said Sutherland was elected, being the term of six years from the first Tuesday in May, 1897,” under which appointment the respondent has exercised and is exercising the powers and privileges of that office. More than 20 days before the 3d day of April, 1900,--the day for municipal and town elections through the state,--the relator demanded of the secretary of state, and also of the county clerk of Milwaukee county, that they give notice of an election for the office of judge of said court to fill the vacancy caused by the death of Sutherland. He also filed with the county clerk a nomination paper signed by the requisite number of electors of Milwaukee county, designating him as a candidate for that position at an election to be held on that day, and demanded that his name be placed on the official judicial judicial ballots, and that other steps be taken necessary to the holding of an election for such an office. All such demands were refused. The fact of his candidacy was unofficially commented upon and communicated to the public through the medium of the public press of Milwaukee. On the 3d day of April a large number of persons, stated in the relation at several thousand, cast votes for the relator for that office, constituting, as alleged, a majority of all the votes cast at said election for said office. The inspectors of election made return of 226 votes for him, and all others were returned uncounted as defective ballots. His demands for canvass of the votes and issue of a certificate of election were refused, but on the 2d day of May he filed in the office of the clerk of the circuit court for Milwaukee county his oath of office as judge of the superior court. By virtue of such facts the relator claimed title to said office, and, having demanded that the attorney general institute quo warranto against the sitting judge, and been refused, he brought this action in the name of the state of Wisconsin on his complaint in the circuit court for Milwaukee county, praying the ouster of Williams, and judgment that the relator is entitled to the office, and be admitted to the same. Answer being made by the defendant, the action came on for trial, and, except for proof of the title of the defendant in accordance with the facts above stated, all evidence under the relation was excluded, and verdict directed for the defendant, and judgment dismissing the action and declaring defendant's title to the office good until May 1, 1903, was entered, from which the relator appeals.

H. L. Eaton, for appellant.

Timlin, Glicksman & Conway. Geo. L. Williams, and A. H. Blatchley, for respondent.

DODGE, J. (after stating the facts).

The title of the respondent to the office he occupies is assailed on the ground that his appointment thereto by the governor, to hold for the residue of the unexpired term of his deceased predecessor, in invalid, for the reason that it, and the only act of legislature authorizing it, are prohibited by the provision of section 2, art. 7, of the constitution, requiring that: “The legislature shall provide as well for the election of judges of the municipal courts as of the judges of inferior courts, by the qualified electors of the respective jurisdictions. The term of office of the judges of the said municipal and inferior courts shall not be longer than that of the judges of the circuit courts.” The act of legislature under which the governor acted in this appointment is section 1, c. 24, Laws 1889, providing that in case of vacancy in the office of judge of the superior court of Milwaukee county “the governor shall appoint a judge of said superior court, and the person so appointed shall hold for the residue * * * of the term.” Hence the power of the legislature, if it has any, has been exercised to authorize the appointment in the present case. The question thus presented is an interesting one. It may not be easy to justify the appointment of a judge for substantially a whole term, or, indeed, for any part thereof longer than is consistent with an orderly and convenient system of elections, in view of the express command of the constitution that such judges shall be elected by the people, unless, indeed, the constitution should be deemed to have received construction in the enactment of a similar statute with reference to county judges as early as chapter 60 of the Laws of 1859, the validity of which in this aspect has remained unquestioned ever since, its general validity having...