State ex rel. Nelson v. Henry
| Decision Date | 09 October 1934 |
| Citation | 256 N.W. 714,216 Wis. 80 |
| Parties | STATE EX REL. NELSON v. HENRY, STATE TREASURER, ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge. Reversed.
Action in mandamus by the state of Wisconsin, on the relation of Earl O. Nelson, against Robert K. Henry, treasurer of the state of Wisconsin, and Adam Port as supervisor of inspectors of the state of Wisconsin. From an order entered January 2, 1934, quashing the alternative writ, the relator appeals.
Earl O. Nelson petitioned for a writ of mandamus to compel his reinstatement as a deputy oil inspector of the state. From the petition and statutes referred to therein it appears in effect that in 1927 the petitioner was duly appointed and duly qualified as such deputy pursuant to the statutes then in force and continued to be and act as such until an act of the Legislature of 1933 (chapter 461) creating a “state inspection bureau” in the treasury department and transferring the state oil inspection department to that bureau went into effect; that the petitioner without interruption continued to perform the duties and receive the emoluments of deputy oil inspector from the time said act went into effect until November 1, 1933; that the petitioner as deputy oil inspector was under the state civil service act and was subject to removal by the terms thereof only for just cause which shall not be religious or political; that the civil service statutes provide that in cases of discharge the appointing officer shall, at the time of discharge, furnish in writing to the subordinate officer discharged the reason for the discharge and allow him a reasonable time in which to make an explanation; that by said act creating the state inspection bureau the officer who appoints deputy oil inspectors and to whom they are subordinate is the state treasurer; that at the time the said act went into effect the relator was performing the duties of deputy oil inspector for and within a certain specified district and receiving the emoluments of said office; that after said act went into effect he continued to perform the duties of said office for and within said district and to receive the emoluments thereof up to November 1, 1933; that on October 25, 1933, the defendant state treasurer gave to the petitioner notice of his removal from said office, to take effect on October 31, 1933, which notice gave as reason for his discharge the reorganization of the oil inspection department; that the relator was and is a Republican; that there was appointed to succeed him a Democrat; that said successor performs precisely the same duties that the relator was performing at the time of his removal in precisely the same territory in which the relator was then and had for a long period been operating; that there was no reduction of the personnel of the oil inspection department after its transfer by said act to the state inspection bureau and no reorganization of said department; that the reason for the relator's removal from his office was that he was and is a Republican and the purpose thereof was to make room for the appointment of a Democrat, and the cause thereof was therefore political. The petition prays for a peremptory writ commanding the state treasurer and the supervisor of inspectors of the state to reinstate him as deputy oil inspector for the district he was covering prior to his removal, to restore his name to the pay roll of the state if it has been stricken therefrom, and to certify the restoration to the civil service commission so that upon performance of the duties of said office he may receive its emoluments. Upon this petition an alternative writ of mandamus was issued. The defendants moved to quash the writ. The court granted the motion, and from the order quashing the writ the relator appeals.Hale & Burke, of La Crosse, for appellant.
James E. Finnegan, Atty. Gen., and Herbert H. Naujoks and Warren H. Resh, Asst. Attys. Gen., for respondents.
The position of the relator is that he was a duly and permanently appointed and qualified deputy oil inspector under the civil service law on October 31, 1933; that at that time the state treasurer discharged him for the expressed reason that the department was reorganized; that the civil service law provides that an officer permanently appointed to a position under that law cannot be removed “except for just cause which shall not be religious or political”; that the reason for the attempt to remove him was political; and that the attempted discharge was illegal and he is entitled to reinstatement.
The position of the respondents is that chapter 461, Laws of 1933 (), abolishing the office of state inspector of illuminating oils and creating in the treasury department of the state a bureau in charge of the state supervisor of inspectors under the general charge of the state treasurer, impliedly discharged all deputy oil inspectors and effected a reorganization of the oil inspection department of the state; that it does not appear that the relator became an oil inspector after that act went into effect because the petition does not state that he was appointed as such by the state treasurer or that he qualified as such by filing the oath and giving the bond prescribed by section 168.04; that permitting the relator to remain in performance of the duties of an oil inspector was in effect at most only a new original appointment; that under the civil service act original appointments are only temporary and that appointees thereunder may be removed within six months for any reason satisfactory to the appointing officer; and that all the statutes require to effect removal is a notice from the appointing officer that the appointment will not be made permanent, and that the notice of discharge given the petitioner was equivalent to such notice.
[1] The motion to quash the alternative writ of mandamus is in effect a demurrer and admits the allegations of fact contained in the petition. The petition alleges as a fact that the cause of the petitioner's removal was political. If in fact the cause of the removal was political, and as matter of law the relator was a permanently appointed deputy oil inspector at the time he was removed, the removal was illegal and he is entitled to reinstatement. The first question for determination therefore is whether the relator was holding the office of deputy oil inspector on October 31, 1933.
[2][3] Under sections 168.01 and 168.02, Stats. 1931, there existed the office of state supervisor of inspectors of illuminating oils. Section 168.03, Stats. 1931, provided for the offices of deputy inspectors and for their appointment by the state supervisor of inspectors of...
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Lengyel v. Sheboygan County, 96-0203
...284, 287-88 (1936) (writ of madamus compelling reinstatement and certification of back pay appropriate); State ex rel. Nelson v. Henry, 216 Wis. 80-89, 256 N.W. 714, 717 (1934) (mandamus lies to compel reinstatement of state employee fired for political reasons); State ex rel. Thompson v. B......
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