State ex rel. Milwaukee Cnty. v. Buech

• Decision Date: 04 May 1920
• Citation: 177 N.W. 781,171 Wis. 474
• Parties: STATE EX REL. MILWAUKEE COUNTY ET AL. v. BUECH, SHERIFF OF MILWAUKEE COUNTY.
• Court: Wisconsin Supreme Court

171 Wis. 474

177 N.W. 781

STATE EX REL. MILWAUKEE COUNTY ET AL.

v.BUECH, SHERIFF OF MILWAUKEE COUNTY.

Supreme Court of Wisconsin.

May 4, 1920.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Mandamus by the State of Wisconsin, on the relation of Milwaukee County and John B. Kozik, to compel Robert Buech, as sheriff of Milwaukee County to reinstate John B. Kozik as deputy sheriff and to properly place and certify his name on the pay roll. Judgment for relators, and defendant appeals. Affirmed.

Mandamus to compel the defendant, as sheriff of Milwaukee county, to reinstate the petitioner, John B. Kozik, in his office as deputy sheriff and to properly place and certify his name on the pay roll. The petition alleges that John B. Kozik was duly appointed deputy sheriff of Milwaukee county on the 1st day of January, 1917; that defendant, Robert Buech, was elected to the office of sheriff of Milwaukee county in November, 1918, and entered upon the duties of his office on the first Monday of January, 1919, and thereupon appointed petitioner, John B. Kozik, as deputy, effective from and after that date; that the said Kozik filed his oath of office and executed to the said Robert Buech a bond in accordance with the statutes, and did thereafter make and execute an additional bond in the manner and form as provided by chapter 220 of the Laws of 1919. It alleges the passageof chapter 259, Laws of 1917, creating what are now known as sections 16.31 to 16.44, Stats., providing for the creation of a civil service commission in all counties of the state containing 200,000 inhabitants or more; that a civil service commission was duly appointed and organized in Milwaukee county, the adoption of rules and regulations for the purpose of carying out the provisions of said act, the passage of an ordinance by the county board of Milwaukee county adopting a classification and salary standardized plan for compensation of offices and employments in the county classified service, providing for the establishment of procedure and regulations, and providing effective employment control, in compliance with the provisions of said act; that said civil service act and the rules and regulations of said civil service commission and the employment standardization ordinance became effective January 1, 1919; that Kozik, prior to the time said civil service law became effective, had been appointed as deputy sheriff for a definite term, and that when said act became effective in said county Kozik was in the service of said county for a definite term, and that he continued to hold his office after the expiration of said definite term under and pursuant to the terms of the act, and that he took an examination for the purpose of retaining his position as such deputy sheriff as required by the act, and that he continued to act as deputy sheriff until the 1st day of April, when defendant preferred charges against him before the civil service commission and suspended him from office; that upon the trial of such charges before the civil service commission it was determined that the charges were not well founded, and it was ordered that said Kozik be reinstated to his said position as deputy sheriff; that Kozik then presented himself for duty, but defendant refused to recognize the authority or order of the commission to reinstate said Kozik, and did on the 9th day of May file further charges against said Kozik upon trial of which Kozik was again exonerated, and it was ordered that he be reinstated with full pay from and after his first suspension on the 2d day of April, 1919, and that defendant refuses to so reinstate him; that the petitioner, Milwaukee county, ever since said 2d day of April, 1919, has been without the service of said Kozik as deputy sheriff of said county by reason of the wrongful and unlawful conduct of said defendant, Robert Buech.

The defendant moved to quash the alternative writ, which motion was overruled. He then made return to the alternative writ in which he denied that Kozik continued to hold his position as deputy sheriff under said civil service act after the expiration of said definite term, denied that for the purpose of retaining his position as deputy sheriff the said petitioner, Kozik, ever took or passed the examination provided by the terms and provisions of said civil service act, denied that he wrongfully or unlawfully suspended said Kozik, or that he refused to recognize any valid order or any valid determination of the civil service commission, or that he wrongfully or unlawfully refused to place the name of Kozik on the pay roll of Milwaukee county, and further alleged that said Kozik never took or passed for the purpose of retaining his position as such deputy sheriff, the examination, or any examination, provided for by the civil service law, and never became entitled to retain his position as deputy sheriff after the 6th day of January, 1919, under and by virtue of the civil service law, and that whatever right or title he had to the office of deputy sheriff on or after the 6th day of January, 1919, arose out of and was based upon the appointment of said Kozik as deputy sheriff on the 6th day of January, 1919, and that such appointment carried with it the right of discharge of said Kozik by defendant.

The return further alleged that said civil service act is unconstitutional and void, in conflict with and violative of the state Constitution and of the Fourteenth Amendment of the Constitution of the United States, and that all the acts and doings thereunder alleged and set forth in the petition of relators herein were void, and were done and performed without jurisdiction, and that neither of the relators herein have acquired any rights thereunder. It is also alleged that there is a misjoinder of relators herein, and that the said relators have neither a common nor joint interest in the subject-matter of the petition, and that Milwaukee county has no interest in the subject-matter thereof.

The issues thus formed were tried before the court, resulting in findings of fact and conclusions of law, upon which judgment was entered granting the peremptory writ as prayed for by relators. From the judgment so entered the defendant sheriff appealed.

Curtis & Mock, of Milwaukee, for appellant.

W. C. Zabel, Dist. Atty., and William L. Tibbs and D. W. Sullivan, Asst. Dist. Attys., all of Milwaukee, for respondents.

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

Section 16.43, Stats. (civil service law in question) provides:

“All persons included within the classified service of any county, at the time sections 16.31 to 16.44, inclusive, go into effect therein, appointed for a definite term, shall be required to take examinations under said sections as soon as practicable after the expiration of such definite term, except persons who have been on the pay rolls of such county continuously for the four years immediately preceding the date upon which said sections go into effect in said county; and except that all such persons being in service and on the pay roll of said county less than four years preceding such date shall, in order to retain their offices or positions, be required to take a noncompetitive examination, and shall retain their offices or positions, unlessupon such examination they be found and determined by said board to be insufficiently qualified.”

The first question to be considered is whether Kozik's right to the office of deputy sheriff is by virtue of this section or by virtue of his appointment thereto by the sheriff on January 6, 1919. It is the contention of the sheriff that, if his title to the office is derived through and by virtue of this section, then his appointment thereto is a legislative appointment, and void, under the principle governing the decisions in Cole v. President and Trustees of Black River Falls, 57 Wis. 110, 14 N. W. 906;State ex rel. Hamilton v. Krez, 88 Wis. 135, 59 N. W. 593;O'Connor v. City of Fond du Lac, 109 Wis. 253, 85 N. W. 327, 53 L. R. A. 831;State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 110 N. W. 177, 11 Ann. Cas. 560. It is therefore necessary to determine at the outset the source of Kozik's title to the office. If derived through and by virtue of the section of the statutes quoted, it will be necessary to consider whether his title thereto is void as resting upon legislative appointment; otherwise not.

[1] The original theory of the petitioner seemed to be that the provisions of this section were effective to continue him in office, and that his title thereto was referable to this legislative enactment rather than to his appointment of January 6, 1919. Section 16.43 deals with persons included within the classified service who are appointed for a definite term. It provides that, unless they have been on the pay roll of such county continuously for the four years immediately preceding the date when the law takes effect, they shall be required to take noncompetitive examinations after the expiration of such definite term, and they shall retain their offices or positions unless, upon such examination, they shall be found and determined by said board to be insufficiently qualified. The contention of Kozik was that he was appointed for a definite term ending on January 6, 1919, and that he continued to hold his office thereafter unless upon the noncompetitive examination it was found and determined by the civil service commission that he was insufficiently qualified therefor. In order to be within this provision of the Statutes, he must have been appointed for a definite term. Kozik was appointed under the provisions of section 723, Stats. 1915, which provides: “Every deputy shall hold his office at the pleasure of the sheriff.” In view of this provision, it seems plain that Kozik was not appointed for a definite term, for which reason his office was not comprehended within the provisions of section 16.43. His appointment, therefore,...