State ex rel. Reynolds v. Sande

• Decision Date: 13 October 1931
• Citation: 205 Wis. 495,238 N.W. 504
• Parties: STATE EX REL. REYNOLDS, ATTY. GEN., v. SANDE, MAYOR, ET AL.
• Court: Wisconsin Supreme Court

205 Wis. 495

238 N.W. 504

STATE EX REL. REYNOLDS, ATTY. GEN.,

v.SANDE, MAYOR, ET AL.

Supreme Court of Wisconsin.

Oct. 13, 1931.

Original mandamus proceeding by the State on the relation of the Attorney General, John W. Reynolds, against George E. Sande, Mayor, and others. On respondents' motion to quash alternative writ.––[By Editorial Staff.]

Motion granted.

Original action brought in this court praying for peremptory writ of mandamus to compel the common council of the city of Neenah to cast their ballots for a duly qualified person for the position of judge of a court under and by virtue of the provisions of chapter 392, Laws of 1931.

The petition shows the cities of Neenah and Menasha are municipal corporations; that their limits are contiguous with a total population of more than eighteen thousand persons; the property within the two cities is of an assessed valuation exceeding $30,000,000.

Chapter 392 was enacted July 1, 1931, entitled, “An Act to create the municipal court of Neenah–Menasha.” In general, provision is made for a court of record, with judge, clerk, court reporter. The court to sit alternately in the two cities in quarters to be furnished by the councils of said cities.

Section 5 provides for the election of the first judge by the councils of Neenah and Menasha and for subsequent elections of such judge by the electors of Neenah and Menasha; section 6 provides that whenever a vacancy shall occur in the office of the municipal judge, the Governor shall appoint to fill such vacancy until a successor is elected and qualified; section 7 requires the selection of one as judge who is a qualified elector of either of said cities and a practicing attorney of the state of Wisconsin; denies him the privilege, while holding said office, of engaging in the practice of law; section 9 delegates the fixing of the salary to the councils as well as subsequent increases thereof. In other sections, provision is made for calling in the county judge of Winnebago county, the municipal judge of the city of Oshkosh, or the circuit judge, to hold court in the event of sickness or absence of the judge.

As to jurisdiction, the act provides for exclusive original jurisdiction to hear, try, and determine criminal actions arising within the cities of Neenah and Menasha which would otherwise be cognizable by justices of the peace; exclusive original jurisdiction of prosecutions for the violation of the ordinances and charter provisions of the cities of Neenah and Menasha. Section 24 confers powers and jurisdiction in civil actions within the county of Winnebago both in law and in equity, including actions for divorce and annulment of marriages concurrent with and equal to the powers and jurisdictions of the circuit court for Winnebago county, “where the value of the property in controversy or the amount of money claimed, or sought to be recovered, after deducting all payments and offsets, shall not exceed fifty thousand dollars and also of all actions for the foreclosure of mortgages or in proceedings under chapter 289, statutes of 1929, in which the amount claimed does not exceed the sum aforesaid, although the value of the property to be affected by the judgment exceeds that sum. * * *” Section 26 is as follows: “The municipal court and judge thereof shall have power and jurisdiction equal to and concurrent with the circuit court and the several justices' courts within the county and cities of Neenah and Menasha to enter judgment by confession.” Section 27 covers the matter of the change of venue from the municipal court to circuit court in Winnebago county, or to the municipal court at Oshkosh, and further provides: “Nothing herein contained shall be construed as abrogating the right to the change of venue provided for by section 261.03 of the statutes and when such change of venue shall be made it shall be by the municipal court direct to the proper county for the trial of the action.” Other sections make provision for change of venue in certain instances, apparently from justices outside of the cities of Neenah and Menasha; and section 32 provides: “A change of venue may be taken from any other justice court in the county to the municipal court, in any civil action or proceeding upon consent of both parties or their attorneys, and when so taken proceedings shall thereafter be had in the municipal court in like manner as if originally commenced therein”; section 33 governs appeals from justices' courts in criminal cases; sections 34, 35, and 36 provide for appeals; section 40(b) provides for the issuing of writs, orders, and process throughout the state according to rules of pleading and procedure applicable in the circuit court. Other sections of the act provide for details which are immaterial to the question raised.

An alternative writ having been issued, the respondents moved to quash it for the reason that no facts are shown that the relator is entitled to have a writ of mandamus as prayed for, and for the further reason that a writ of mandamus is not authorized by law, and that chapter 392, Laws of 1931, is unconstitutional and void.

John W. Reynolds, Atty. Gen., and Benton, Bosser & Tuttrup, of Appleton, for petitioner.

Mitchell & Krueger, of Oshkosh, for respondent Mrs. Helen K. Stewart.

John W. O'Leary, City Atty., of Neenah (John C. Thompson, of Oshkosh, of counsel), for other respondents.

FAIRCHILD, J.

[1] The sole question to be determined is the constitutionality of chapter 392 of the Laws of 1931. The particular proceeding asks for the relief provided for in section 5 of the act governing the selection of a judge pending the regular election, and this section places upon the common councils of the cities of Neenah and Menasha the responsibility for this election. The Legislature has no authority to provide for the selection of a judge in this manner. The concrete proposition which presents itself here was considered in Re Burke, 76 Wis. 357, 45 N. W. 24, where the matter of the appointment of a judge for the municipal court of Ashland was under consideration. The act in that instance (Laws 1889, c. 94) became effective March 15, 1889, and provided for the election of a judge on the first Tuesday of the following April, at which time the judge was elected to take office the first Monday of January 1890. Two days after the election, the Governor appointed the successful candidate judge of said court to hold office until the first Monday in January, 1890. It was there claimed on the authority of State ex rel. Attorney General v. Messmore, 14 Wis. 163, that the Governor had no authority to make such appointment. The court there said: “For the purposes of this application, it will be assumed that he had not. It should be observed, however, that this application is not necessarily ruled by the Messmore Case, for the appointment in that case was to the office of circuit judge, and the case was decided upon certain constitutional provisions which may not be entirely applicable here.”

Section 10, article 13 of the Constitution refers to other offices than that of circuit judge, and reads: “The legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this constitution.”

The action of the Legislature with relation to vacancies mentioned in the section just quoted appear in section 17.03, Stats., and is confined to death of incumbent, resignation, removal, ceasing to be an inhabitant of the state or district, conviction and sentence for certain offenses, when the position is declared vacant by reason of void election, insanity of the incumbent, neglect or refusal to file official oath, or on the happening of any event which is declared by law to create a vacancy. Mr. Chief Justice Dixon in State ex rel. Attorney General v. Messmore, supra, writing for the court, said: “The clause which gives the legislature power to declare the cases in which any office shall be deemed vacant, * * * clearly confers no authority by direct act to declare a particular office vacant. The legislature can only by general laws declare under what circumstances existing offices shall be deemed vacant.”

[2] In the absence of proper legislation, an attempt to provide for the selection of the judge otherwise than by an election by the qualified electors of the jurisdiction to be served is void. Article 7, § 2, Const. Wis.

Since the invalidity of section 5 of the act in the respect above indicated would not affect the validity of the enactment as a whole, but merely postpone the time for the coming into operation until a proper election could be held, and since the enactment must be held to be void for reasons hereafter set forth, no further discussion of this provision is required, nor do we deem it necessary to consider the objection to the validity of sections which may affect the rights of parties in case an appeal be taken from judgments formerly within the jurisdiction of a justice of the peace to the Supreme Court.

[3][4] If all the sections are given their full meaning, then the Legislature has attempted to create a court with jurisdiction within the limits of the county of Winnebago, and the plain language of the act indicates that they had in mind the creation of an inferior court because the nature and extent of the powers and duties imposed under the wording of the act makes this court an inferior court as distinguished from a municipal court. When the process of such a court may be sent throughout the state, that court is an inferior court notwithstanding the act creating it calls it a municipal court. French v. L. Starks Co., 183 Wis. 345, 197 N. W. 726. A court characterized by the powers conferred upon it by the Legislature rather than by the name applied to it; both are important when questions of interpretation are being considered; but the name will not, in and of itself, limit or increase...