State ex rel. Reynolds v. Smith
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | CURRIE |
| Citation | 22 Wis.2d 516,126 N.W.2d 215 |
| Decision Date | 07 February 1964 |
| Parties | STATE of Wisconsin on the relation of John W. REYNOLDS, Howard J. Koop and Frank P. Zeidler, Petitioners, v. Dena A. SMITH, Respondent. |
Page 215
Howard J. Koop and Frank P. Zeidler, Petitioners,
v.
Dena A. SMITH, Respondent.
Leonard F. Schmitt, Merrill, for petitioners.
George Thompson, Atty. Gen.; Lyle E. Strahan and Roy G. Tulane, Asst. Attys. Gen., Madison, for respondent.
CURRIE, Chief Justice.
The statute governing the appointment of the Director of Resource Development is sec. 109.02, Stats., and that with respect to the appointment of the Commissioner of Administration is sec. 16.003(2), Stats. Both statutes provides that the appointment is to be made by the governor 'with the advice and consent of the senate.' Under the decision of this court in State ex rel. Thompson v. Gibson (1964), Wis., 125 N.W.2d 636, the recess appointments of September 26, 1963 and October 8, 1963 of Zeidler and Koop were valid and effective when made and they would continue as de jure officers until such time as the senate acted on their appointments. The senate did so act on November 13, 1963 by rejecting the appointments. [22 Wis.2d 519] This terminated the de jure status of these two appointees. Because the legislature was in session when the reappointments of November 15, 1963 were made, they were wholly ineffectual to confer de jure status on the appointees until such time as the senate should act thereon, which the senate failed to do. Petitioners ground no claim of right to hold their respective offices on the November 15, 1963 reappointments, but rely on the further new reappointments of December 3, 1963, while the legislature was in recess. The attorney general, representing the respondent, contends that the senate's rejection on November 13, 1963 of the former appointments of Koop and Zeidler bars these December 3, 1963 reappointments from having the effect of conferring a de jure status upon the two appointees.
Thus the principal issue presented for decision is the effect of the senate's rejection of November 13th on these new reappointments of December 3rd. A subsidiary issue is whether Zeidler and Koop are entitled to payment of their salaries from November 24, 1963 to December 3, 1963 as de facto officers.
Effect of Senate's Rejection.
The attorney general's principal argument may be summarized as follows:
When the legislature creates an office and provides that it is to be filled by appointment of the governor 'with the
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advice and consent of the senate,' the action of the senate in voicing such advice and consent is an important and material part of the appointive process which is not to be by-passed or thwarted. Therefore, in order to prevent such by-passing and thwarting of the senate's part in the appointive process, once the senate has voiced its advice and consent by rejecting an appointment, this action should be [22 Wis.2d 520] held to continue in effect until such time as the senate affirmatively recedes therefrom. Sec. 17.20(2), Stats., 1 which permits the governor to appoint to a vacancy during recess of the legislature and for the appointee to immediately assume office, is an emergency measure so as to enable the wheels of government to operate. However, this statute provides for senate action on the appointment when the legislature is again in session. Such senate action should not be necessary where the senate has already acted by rejecting this same appointee to the same vacancy while the legislature was previously in session.This argument is essentially one grounded on public policy and would make a strong appeal to us were we sitting as a legislature, or had we a choice in laying down a rule of law in a situation where there was no controlling statute. However, we are here confronted with an issue of statutory interpretation, the statute being sec. 17.20(2). The only action by the senate, which is required by this statute with respect to a recess appointment, is specifically stated to be that taken 'at the next regular session.' The statutory words 'at the next regular session' were interpreted in State ex rel....
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Walberg v. State, Nos. 75--284--CR and 75--333--CR
...501, 182 N.W.2d 459; Burton v. State Appeal Board (1968), 38 Wis.2d 294, 156 N.W.2d 386. 8 See: State ex rel. Reynolds v. Smith (1964), 22 Wis.2d 516, 126 N.W.2d 215; Schoonover v. Viroqua (1944), 245 Wis. 239, 14 N.W.2d...
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City of Milwaukee v. Kilgore, No. 92-0949
...where the statute would have been drawn otherwise had the legislature been cognizant of its omission. State ex rel. Reynolds v. Smith, 22 Wis.2d 516, 521, 126 N.W.2d 215, 217 This case, however, is significantly distinguishable from Smith. In Smith, the court construed a statute dealing wit......
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Pamanet v. State, No. S
...its duties, and claiming to be such officer under color of an election or appointment.' State ex rel. Reynolds v. Smith (1964), 22 Wis.2d 516, 522, 126 N.W.2d 12 '* * * While the right to hold an office when tenure is based on a de facto status may be attacked directly, the officer's acts a......
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Joyce v. Town of Tainter, No. 99-0324
...the de facto officer doctrine may be inapplicable where an official seeks to apply it for personal benefit. See, e.g., Reynolds v. Smith, 22 Wis. 2d 516, 522, 126 N.W.2d 215, 218 (1964) ("the general rule seems to be that a de facto officer cannot maintain an action to recover the salary of......
-
Walberg v. State, Nos. 75--284--CR and 75--333--CR
...501, 182 N.W.2d 459; Burton v. State Appeal Board (1968), 38 Wis.2d 294, 156 N.W.2d 386. 8 See: State ex rel. Reynolds v. Smith (1964), 22 Wis.2d 516, 126 N.W.2d 215; Schoonover v. Viroqua (1944), 245 Wis. 239, 14 N.W.2d...
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City of Milwaukee v. Kilgore, No. 92-0949
...where the statute would have been drawn otherwise had the legislature been cognizant of its omission. State ex rel. Reynolds v. Smith, 22 Wis.2d 516, 521, 126 N.W.2d 215, 217 This case, however, is significantly distinguishable from Smith. In Smith, the court construed a statute dealing wit......
-
Pamanet v. State, No. S
...its duties, and claiming to be such officer under color of an election or appointment.' State ex rel. Reynolds v. Smith (1964), 22 Wis.2d 516, 522, 126 N.W.2d 12 '* * * While the right to hold an office when tenure is based on a de facto status may be attacked directly, the officer's acts a......
-
Joyce v. Town of Tainter, No. 99-0324
...the de facto officer doctrine may be inapplicable where an official seeks to apply it for personal benefit. See, e.g., Reynolds v. Smith, 22 Wis. 2d 516, 522, 126 N.W.2d 215, 218 (1964) ("the general rule seems to be that a de facto officer cannot maintain an action to recover the salary of......