State ex rel. Sullivan v. Boos

• Decision Date: 06 March 1964
• Citation: State ex rel. Sullivan v. Boos, 23 Wis.2d 98, 126 N.W.2d 579 (Wis. 1964)
• Parties: STATE ex rel. Michael T. SULLIVAN, Appellant, v. Robert E. BOOS, County Auditor of Milwaukee Co., Respondent.
• Court: Wisconsin Supreme Court

Page 579

126 N.W.2d 579

23 Wis.2d 98

STATE ex rel. Michael T. SULLIVAN, Appellant, v.Robert E. BOOS, County Auditor of Milwaukee Co., Respondent.

Supreme Court of Wisconsin.

March 6, 1964.

Schmus & Panosian, West Allis, for appellant.

Robert P. Russell, Corp.Counsel, C. Stanley Perry, Milwaukee, for respondent.

FAIRCHILD, Justice.

1.The auditor's standing to question constitutionality.Relator argues that the county auditor is a ministerial officer, without authority to withhold his signature because of his doubts concerning the constitutionality of an ordinance or statute which appears on its face to require the particular disbursement.The ordinance in question, on its face, appears to require the payment demanded by relator.Sec. 252.071, Stats., on its face, appears to authorize adoption of the ordinance.It is not claimed there was any procedural defect or insufficiency in the appropriation of money for the payment, nor that funds are unavailable.Clearly the auditor has no discretion to approve or disapprove the policy of increasing the salary.These things being true, it is relator's position that a peremptory writ of mandamus should issue, without determining the constitutional questions.

Conceding the clarity of the auditor's duty to pay if we may look no further than the ordinance, or the statute, the question is whether the character of the auditor's official position and duty place him in the category of a public officer who is permitted to question the constitutionality of an ordinance or statute which appears to impose the duty.

In Fulton Foundation v. Department of Taxation¹we said:

'The general rule is that state agencies or public officers cannot question the constitutionality of a statute unless it is their official duty to do so, or they will be personally affected if they fail to do so and the statute is held invalid. * * *'

We also recognized that there is a further exception where the question raised is of great public concern, particularly where the circumstances are such that there is little likelihood that a taxpayer or other person whose interests are affected would take the steps required to get a determination of the question.²

In deciding that a particular officer could raise the constitutional question, this court has readily found in statutory language an implication of duty to determine the lawfulness of the act or expenditure.Thus in mandamus actions to compel the state director of budget and accounts to make disbursements, the director was permitted to challenge constitutionality because his statutory duties were deemed to include passing on the legality of the purpose of the expenditure.³A city treasurer directed by resolution to make a disbursement was held entitled to challenge, in a mandamus action, the legality of the payment because the resolution indicated that it was conditional upon the lawfulness of the payment.⁴The state treasurer was entitled to challenge, in a mandamus action, the legality of an expenditure, because of a statute which required her to pay such sums only as are authorized by law to be so paid.⁵A mayor was entitled, in mandamus, to challenge the validity of a resolution of the council requiring the mayor to execute a conveyance because the city charter charged him with the responsibility of taking care that the laws of the state are duly observed and enforced.⁶

Courts frequently permit an officer who controls the disbursement of public funds to challenge the validity of a statute or ordinance which appears to require payment, upon the theory that he has a personal interest to protect, in that he may be held liable if he permits the disbursement of public funds in what proves to be an unlawful manner.⁷

We have not overlooked the fact that this court has held, on occasion, that a particular officer may not defend against mandamus by challenging the validity of a statute, and has explained that the particular duty was ministerial and not discretionary, or ministerial and not quasi-judicial.Thus the secretary of state was not permitted to defend against mandamus to compel him to publish a law by claiming that the governor's approval of it was not valid.It was said his duty was purely ministerial, but it was also stated that the secretary of state was not 'in his official capacity or personally affected by it.'⁸Where mandamus was brought to compel a city clerk to sign city bonds pursuant to an ordinance which was regularly adopted, it was held his duty was purely ministerial and not discretionary, and he could not raise the question of the validity of the ordinance in defending the mandamus action.⁹It was held that a city clerk, required by resolution of the council to sign a conveyance, could not defend a mandamus action by questioning the validity of the resolution, although the mayor, as previously pointed out, because of a duty to enforce the laws, could do so.¹⁰

We must now look at the nature of the duty and responsibility of the auditor.

The office of county auditor in Milwaukee county is filled by appointment by the county board.He has general direction over the accounts of the county, and must file a bond.Sec. 59.72(3),Stats. Sec. 59.81(3) requires that he countersign all orders and warrants drawn upon county funds, and the treasurer shall make no payments without the auditor's signature.

Sec. 59.84, Stats., creates a procedure for formulation of a budget, in the assembling of which, the county auditor is to participate.Subsec. (12) provides:

'No payment shall be authorized or made and no obligation incurred against the county except in accordance with appropriations duly made.No payment shall be made or obligation incurred against any appropriation unless the county auditor first certifies that there is a sufficient unencumbered balance in the appropriation and that funds therefrom are available or will be available to make the payment or to meet the obligation concerned when it becomes due and payable. * * *'

The subsection goes on to provide that every payment made in violation of sec. 59.84 shall be illegal and all county officers who knowingly authorize or make the payment shall be liable to the county.

Although it might be possible to construe the auditor's duty under this language as only to enforce compliance with budget and appropriation procedure, we think that the tenor of these statutes, taken together, sufficiently suggests that the auditor has a high degree of responsibility for lawful expenditures, so that the term 'appropriations duly made' in sec. 59.84, Stats., must embrace fundamental lawfulness as well as compliance with budgeting and appropriation procedures.This interpretation is in line with the interpretations previously noted, that various statutory language imposes upon an officer a duty to determine lawfulness.There is the further element that sec. 59.84 suggests a real possibility of personal liability on the part of the auditor if he participates in making unlawful payment of county funds, believing the payment to be unlawful, and the still further element that if the auditor is not in a position to protect the public treasury by reviewing the fundamental lawfulness of expenditures it may be unlikely that questionable ones will be reviewed.

We note that in 1959, Milwaukee county sought mandamus in an original action in this court to compel the present auditor to transfer certain funds to purchase office equipment for a county executive.The auditor demurred, and argued that the law providing for a county executive was invalid.We determined that it was valid in part and granted mandamus.Evidently it was assumed by all parties at that time that the auditor could properly challenge the constitutionality of a statute as a defense in mandamus.¹¹

We conclude that the auditor has the standing in the instant action to challenge the validity of the ordinance which increases the salaries, and of the statute which appears to authorize the ordinance.

2.The constitutional questions.Three constitutional provisions control the setting of compensation for circuit judges.They are as follows:

Sec. 7, art. VII: '* * * Every circuit judge shall * * * receive such compensation as the legislature shall prescribe.'

Sec. 10, art. VII: 'Each of the judges of the supreme and circuit courts shall receive a salary * * * they shall receive no fees of office, or other compensation than their salary * * *.'

Sec. 26, art. IV: '* * * [N]or shall the compensation of any public officer be increased or diminished during his term of office. * * *'

The last named provision is found in the article dealing with the legislature.The term 'public officer' as there used has been interpreted by this court as including only 'such officers as receive a fixed salary payable out of the public treasury of the state.'¹²As stated in a 1915 decision, ¹³'* * * it is beyond question that he[a circuit judge] was a public officer.'In Milwaukee County v. Halsey, ^13athis court said that if an expense allowance granted by the legislature to all circuit judges then in office be deemed 'compensation,'the act would be invalid on its face by reason of sec. 26, art. IV, Wis.Const.The fact that supreme court justices had always accepted the prohibition against mid-term increases as applying to them is documented in the 1909 decision in State ex rel. Bashford v. Frear.¹⁴The issue in that case was the interpretation of the word 'term' where a justice succeeded to the unexpired term of someone else, but the applicability of sec. 26, art. IV, to a justice or judge as a public officer was unquestioned.Two proposed constitutional amendments to exempt officers with long terms from the prohibition against mid-term increases have recently been defeated at the polls.Jt. Res. 11, 1961, rejected in 1961, would have exempted public officers, other than members of the legislature, whose terms of office were four...