State ex rel. Reynolds v. Smith

• Decision Date: 07 February 1964
• Citation: 22 Wis.2d 516,126 N.W.2d 215
• Parties: STATE of Wisconsin on the relation of John W. REYNOLDS, Howard J. Koop and Frank P. Zeidler, Petitioners, v. Dena A. SMITH, Respondent.
• Court: Wisconsin Supreme Court

Page 215

126 N.W.2d 215

22 Wis.2d 516

STATE of Wisconsin on the relation of John W. REYNOLDS Howard J. Koop and Frank P. Zeidler, Petitioners, v. Dena A. SMITH, Respondent.

Supreme Court of Wisconsin.

Feb. 7, 1964.

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. 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 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 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. Thompson v. Gibson, supra, to mean when the legislature reconvenes after recess. To hold that a rejection by the senate of the appointee to the same vacancy, to which the governor has reappointed him after the legislature has recessed, constitutes a standing rejection that carries over and automatically bars the appointee from assuming office, would be to read something into the statute by implication. No only is the statute complete and operative without this, but the reading of such a provision into it by implication would conflict with the words 'at the next regular session.'

We are of the opinion that to adopt the construction urged by the attorney general would be an act of unjustifiable judicial legislation, and would violate the firmly established doctrine that 'a casus omissus' does not justify judicial legislation. See Rusk Farm Drainage Dist. v. Industrial Comm. (1925), 186 Wis. 232, 202 N.W. 204, and 50 Am.Jur., Statutes, pp. 221 to 223, sec. 234. This self-imposed rule of judicial restraint is equally applicable even where the omission was a mere oversight on the part of the legislature and where the statute would have been drawn otherwise had the legislature been cognizant of its omission. Du Pont v. Mills (1937), 39 Del. 42, 196 A. 168, 119 A.L.R. 174.

The attorney general advances the further argument in support of its contention, that the rejection by the senate on November 13, 1963, of the appointments of Zeidler and Koop, carried over and prevented them from becoming de jure officers when reappointed December 3, 1963. This is that such rejection constituted a removal from office so as to make applicable sec. 17.16(10), Stats., which provides, 'A person lawfully removed from office shall be ineligible to appointment or election to fill the vacancy caused by such removal.' A reading of entire sec. 17.16, Stats., convinces us that this statute has no application to the termination of the right of an appointee, who was appointed pursuant to sec. 17.20(2), Stats., to fill a vacancy during the recess of the legislature, to continue to occupy the office to which appointed. This is because this statute deals with removals from office by affirmative action of the appointive power, and requires the entry and filing of an order of removal. It clearly does not embrace the creation of a vacancy in office occasioned by action of the senate in rejecting a...