State ex rel. Johnson v. Nye

• Decision Date: 12 March 1912
• Citation: 135 N.W. 126,148 Wis. 659
• Parties: STATE EX REL. JOHNSON v. NYE.
• Court: Wisconsin Supreme Court

148 Wis. 659

135 N.W. 126

STATE EX REL. JOHNSON

v.NYE.

Supreme Court of Wisconsin.

March 12, 1912.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Quo warranto by the State, on the relation of Henry A. Johnson, against Ray J. Nye. From an order overruling a demurrer to the complaint, defendant appeals. Reversed and remanded, with instructions to sustain the demurrer.

This is an action of quo warranto brought to oust the defendant from the office of member of the grain and warehouse commission of Wisconsin. The complaint alleges, in substance: That on the 9th day of July, 1906, to fill a vacancy then existing, Henry A. Johnson was duly appointed by the Governor of Wisconsin to the office of commissioner of the grain and warehouse commission for Wisconsin (hereinafter called “grain commissioner”) under chapter 19 of the Laws of 1905, and acts amendatory thereof and supplemental thereto, and, immediately after his appointment and in pursuance thereof, he duly qualified as such officer, entered upon the duties thereof, and through successive appointments thereto has continued to occupy and exercise the duties of such office from said 9th day of July, 1906, up to and including the 23d day of October, 1911. That he was last appointed to said office in the month of January, 1910, for the year ending the first Monday in February, 1911, and until his successor should be duly appointed and qualified, and that the relator has been since said 9th day of July, 1906, and now is, entitled to said office. That during the year last past, and up to and including the 23d day of October, 1911, said grain and warehouse commission for Wisconsin (hereinafter called the “grain commission”) was composed of the relator Henry A. Johnson, William H. Crumption, and James A. Kernan. That, pursuant to section 1747--2, Statutes of Wisconsin,the relator has received all his appointments as such grain commissioner upon recommendation of the Board of Trade of the city of Superior. That the said James E. Kernan was appointed and now holds his office as such grain commissioner pursuant to the recommendation of the Governor of North Dakota, and said William H. Crumption, while he was not recommended by the Governor of New York for the reason that owing to a spirited contest between candidates the Governor of New York declined to recommend any one, yet his appointment as such grain commissioner was accredited to New York. That in the month of October, 1911, and, as affiant is informed and believes, on or about the 7th day of October, 1911, the Governor of Wisconsin undertook to appoint, and in form did appoint, the defendant Ray J. Nye to said office of grain commissioner to succeed said relator, and within a few days thereafter, and in October, 1911, said defendant attempted to qualify therein. That at the biennial general election held the 8th day of November, 1910, said defendant Ray J. Nye was duly elected assemblyman from the Second assembly district of Douglas county, Wisconsin, for the ensuing two years term. That pursuant to said election, and immediately thereafter, the defendant duly qualified as such assemblyman, and attended and took part as a member of the Legislature from said district during the entire biennial session held in 1911. That by virtue of said election and qualification he ever since said election has been, and now is, a member of the Legislature of Wisconsin. That in marketing, handling, and housing of grain tributary to the head of Lake Superior, the city of Superior, in Wisconsin, and the city of Duluth, in Minnesota, come in direct competition, and the facilities for marketing, handling, and housing grain in these two cities are very similar. That the yearly crop of grain grown in territory tributary to, and which can be handled at, the head of Lake Superior, varies much in quantity, depending upon the favorableness of the season and other varying conditions. That in inspecting and weighing grain the grain commissioners of Wisconsin come in direct competition with the commissioners of Minnesota, who possess similar duties and powers, in consequence of which it is impracticable and impossible for the grain commissioners of Wisconsin to exact, charge, or collect fees for inspecting and weighing grain which are substantially in excess of the fees charged by the Minnesota commission. That such competition is keen, and has at times threatened to greatly reduce the amount of fees which can be collected under chapter 19 of the laws of 1905 and amendments thereto. That, owing to all these conditions, there have been times, and the relator verily believes there will be times in the future, when the amount of fees which can be collected by said grain commission of Wisconsin was not, and will not be, sufficient to meet all the obligations of said grain commission. That in June, 1911, the time chapter 458, Laws of 1911, was enacted, there was a lack of funds in the treasury to meet the obligations of the grain commission, and was no money out of which the second hundred dollars of the grain commissioners' monthly salaries (being that part theretofore payable out of fees after all legal obligations had been paid) could be paid for the months of March, April, May, and June, 1911, and the grain commissioners had then received only $100 salary per month for the aforesaid months; but pursuant to chapter 458, Laws of 1911, $5,742.27 was transferred from the general fund to the “Wisconsin grain and warehouse fund,” and out of the fund so transferred the salaries of the commissioners for said months were early in July, 1911, paid in full. That said chapter 458 makes the present arrangement for payment of salary of grain commissioners surer and more remunerative than the law of payment as it stood prior to the enactment of said chapter, and, under conditions that are liable to confront the commission at any time, the salaries received by the commissioners will have been increased by said chapter 458. That said defendant was in January, 1911, duly constituted and appointed chairman of the finance committee of the assembly, accepted his appointment, and ever since has been and now is chairman of said committee. On July 8, 1911, pursuant to chapter 583, Laws of 1911, the defendant, by virtue of being chairman of the finance committee of the assembly, became ex officio member of the state board of public affairs, and ever since said 8th day of July, 1911, has been a member of said board. At the first meeting of said board, held as relator verily believes in July, 1911, the defendant was appointed secretary of said board. That said defendant was at the time of his appointment as grain commissioner, ever since has been, and now is engaged in the duties of the state board of public affairs. That the office of assemblyman held by defendant, and the office of member of the state board of public affairs, held by defendant as aforesaid, are each incompatible with the office of grain commissioner. That section 2 of chapter 19, Laws of 1905, in providing that, before making such appointment, the Governor shall request the Governors of North Dakota and New York and the Board of Trade of Superior, respectively, to recommend a person or persons for the appointment upon such commission, was enacted with a design to prevent appointments of such grain commissioners for political motives, and to secure grain commissioners who are expert grainmen, and a grain commission equally poised between buyer, seller, and middleman. That the Governor of Wisconsin did not before appointing said defendant grain commissioners,nor at any time, request the Board of Trade of Superior, nor the Governors of North Dakota and New York, to recommend a person or persons for the appointment. That the Board of Trade of Superior in January, 1911, by unanimous vote of its directors, recommended that Henry A. Johnson, relator, be reappointed to succeed himself. That when no appointment was made in January, 1911, the Board of Trade, through its president, notified the Governor on or about June 24, 1911, that, if for any reason Henry A. Johnson was unsatisfactory to him, the Board of Trade would like the opportunity of recommending some other person, but relator verily believes that the Governor completely ignored said request, and said Board of Trade was never given an opportunity to recommend another person. That pursuant to chapter 440, Laws of 1909, it was the duty of the Governor to make the appointment of a successor to relator in January, 1911, and in conformity to the spirit of the law it was his duty to appoint a person who is an experienced judge of grain, and although defendant is without experience which enables him to properly judge and grade grain, and is without the necessary qualifications to enable him to properly fill such office, the Governor refused to appoint a grain commissioner in January because to subserve political ends alone he wanted to appoint defendant, but did not want to appoint him until after the legislative session had adjourned, and for that reason withheld making such appointment until October, 1911. That because of the foregoing the defendant was at the time he was so appointed grain commissioner, ever since has been, and now is ineligible to hold said office, and the Governor had no power to appoint said defendant in the manner and at the time and under the conditions he so appointed him. That on the 23d day of October, 1911, defendant demanded of relator that he turn over the books and papers belonging to said office of grain commissioner, and that he be allowed to occupy said office. That the relator then and there told defendant that he was not...