State ex rel. Thompson v. Gibson

• Decision Date: 10 January 1964
• Citation: 22 Wis.2d 275,125 N.W.2d 636
• Parties: STATE ex rel. George THOMPSON, Attorney General, Plaintiff, v. John GIBSON et al., Defendants, Charles F. Smith, Intervening Defendant.
• Court: Wisconsin Supreme Court

Page 636

125 N.W.2d 636

22 Wis.2d 275

STATE ex rel. George THOMPSON, Attorney General, Plaintiff, v. John GIBSON et al., Defendants Charles F. Smith, Intervening Defendant.

Supreme Court of Wisconsin.

Jan. 10, 1964.

George Thompson, Atty. Gen., Lyle E. Strahan, Deputy Atty. Gen., Roy G. Tulane and Robert D. Martison, Asst. Atty. Gens., Madison, for plaintiff.

Leonard F. Schmitt, Merrill, for Gibson, Morton, Jankowski, Otto, Phillips, Koop, Zeidler, Lucey, Adamany, Melli and Branstable.

Geisler & Kay, Madison, for Hidde.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, for Otto.

Wm. J. P. Aberg and Carroll Metzner, Madison, for Rahr and Smith.

Jasper, Winner, Perina & Rouse, Madison, for Keliher and Knutson.

DIETERICH, Justice.

The issues before this court are as follows:

I. Whether an appointment by the governor to an office which is unoccupied due to death or resignation of the incumbent is valid and effective when made where the appointment was made while the legislature was 'adjourned' and has not been acted upon by the senate.

II. Whether an appointment by the governor to an office occupied by an incumbent holding over after expiration of his term is valid and effective when made where:

(1) The incumbent had been duly confirmed by the senate, and the appointment of his successor was made after the August 6th adjournment, and thus not confirmed.

(2) The incumbent had been duly confirmed by the senate, and was also holding over after expiration of his term pursuant to a specific 'holder clause' in the statutes pertaining to the office, and where the appointment of his successor was made after the August 6th adjournment.

(3) The incumbent, although confirmed by the senate, was past retirement age and a participating employee in the Wisconsin retirement fund, and where the appointment of his successor was made after the August 6th adjournment.

III. Whether an appointment made during adjournment is valid and effective when made where the incumbent had never been confirmed by the senate, but whose term of office was to end in 1967.

Wisconsin Constitution.

Article IV.

Sec. 11. Meeting of legislature. 'The legislature shall meet at the seat of government at such time as shall be provided by law, once in two years, and no oftener, unless convened by the governor, in special session * * *.'

Wisconsin Statutes (1961).

Sec. 14.22. 'Appointments subject to confirmation. Whenever the governor is authorized to make any appointment to office by and with the advice and consent of the senate, and the legislature is not in session at the time such office should be filled, he may make appointment thereto, subject to the approval of the senate at the next succeeding session of the legislature, and all such appointments shall be as valid and effectual from the time when so made until twenty days after such meeting of the legislature as if he possessed the absolute power of appointment.'

Sec. 17.03. 'Vacancies, how caused. Any public office, * * * shall become or be deemed vacant upon the happening of any of the following events:

'(1) The death of the incumbent.

'(2) His resignation.

'(3) His removal.

'(4) His ceasing to be an inhabitant of this state; * * *

'(5) His conviction by a state or United States court of and sentence for treason, felony or other crime of whatsoever nature punishable by imprisonment in any jail or prison for one year or more, or his conviction by any such court of and sentence for any offense involving a violation of his official oath, * * *

'(6) The decision of a competent tribunal declaring void his election or appointment or adjudging him insane.

'(7) The neglect or refusal of any person elected or appointed or re-elected or reappointed to any office to take and file his official oath or to execute or renew his official bond * * *

'(8) The neglect or refusal of any officer in office to execute and file an additional bond, when lawfully required, in the manner and within the time so required or prescribed by law.

'(9) The death or declination in writing of any person elected or appointed to fill a vacancy or for a full term before he qualifies, or his death or such declination before the time when, by law, he should enter upon the duties of his office to which he was elected or appointed.

'(10) On the happening of any other event which is declared by any special provision of law to create a vacancy.

'(11) Upon the failure of the first annual school meeting of a school district to elect school board members for the district.

'(12) The establishment of such offices upon the creation by the legislature of a new county and a new town, unless otherwise ordered by the legislature.'

Sec. 17.20. 'Vacancies in appointive state offices; how filled; terms. (1) General. Vacancies in appointive state offices shall be filled by appointment by the appointing power and in the manner prescribed by law for making regular full term appointments thereto, and appointees to fill vacancies therein shall hold office for the residue of the unexpired term or, if no definite term of office is fixed by law, until their successors are appointed and qualify.

'(2) Interim Vacancies; terms. Vacancies occurring during the recess of the legislature in the office of any officer appointed by the governor by and with the advice and consent of the senate shall be filled by appointment by the governor for the residue of the unexpired term, subject to confirmation by the senate at the next regular session thereof if the term for which the person was so appointed has not expired. Any such appointment subject to confirmation by the senate shall be in full force until acted upon by the senate, and when confirmed by the senate shall continue for the residue of the unexpired term.'

The attorney general's position is that the power of the governor to appoint during a recess of the legislature depends upon a proper construction of secs. 14.22 and 17.20, Stats., and that under these sections, construed jointly, the governor can only appoint to fill vacancies. The respondent appointees contend that secs. 14.22 and 17.20, are separate in their application and that in the instant action the governor's power to appoint is governed by sec. 14.22, which is not restricted to vacancies.

Sec. 17.03, Stats., provides in part that any public office shall become or be deemed vacant upon the death, resignation or removal of an incumbent officeholder. The attorney general concedes that all of the interim appointments to fill vacancies as defined in sec. 17.03 were proper 'recess appointments' under sec. 17.20. That section provides that vacancies occurring during the recess of the legislature shall be filled by appointment by the governor for the remainder of the unexpired term, subject to confirmation by the senate at the next regular session of the legislature, and that such appointment shall be in full force until acted upon by the senate.

Sec. 14.22, Stats., provides that when the legislature is 'not in session at the time such office should be filled' the governor may appoint a successor, subject to senate approval 'at the next succeeding session of the legislature,' and that all such appointments are valid until twenty days after such meeting of the legislature.

In support of their contention that the governor's appointments are valid under sec. 14.22, Stats., the appointees argue that the period of adjournment--August 6 to November 4, 1963--was a time when the legislature was 'not in session' within the meaning of that statute. The attorney general also concedes that there is no practical difference between the terms 'not in session' (as found in sec. 14.22), and 'during the recess' (as found in sec. 17.20(2)). However, respondents Rahr, Charles Smith, Keliher and Knutson, contend that the legislature was 'in session' during the period of adjournment from August 6 to November 4, 1963, and that sec. 14.22 does not apply.

Sec. 11, art. IV of the Wisconsin Constitution provides in part that the legislature shall meet at the seat of the government 'once in two years, and no oftener' unless called into special session by the governor. This section, while not controlling in the instant action, is of great aid in interpreting the statutes in question, in that it clearly specifies that there is but one biennial 'session' of the legislature. ³ If there is only one biennial legislative session, then the legislature, having convened on January 9, 1963, could not, if it had terminated its session, again convene, except in special session at the call of the governor, until January, 1965. When both houses 'adjourned' on August 6, 1963, it was expressly provided that the adjournment was only until November 4, 1963, and such an adjournment did not operate to dissolve the 76th session of the Wisconsin legislature.

Sec. 17.20(2), Stats., uses the word 'recess' as opposed to the phrase 'not in session' as found in sec. 14.22, Webster's New International Dictionary (3d Ed. unabridged) defines 'recess' as a 'suspension of business or procedure (as of a legislative body, court, school) for a comparatively short time * * *' We determine that the temporary adjournment of the legislature from August 6, 1963 to November 4, 1963, constituted a recess. See State ex rel. Sullivan v. Dammann (1936), 221 Wis. 551, 555, 267 N.W. 433. Since sec. 14.22 refers to appointments made when the legislature is not in session (i. e. where there has been termination or dissolution of a session) and sec. 17.20 applies where the legislature is in recess (i. e. a temporary adjournment during the biennial session), it necessarily follows that sec. 14.22 has no application to the appointments in question and the case resolves itself to a determination of the application of secs. 17.20 and 17.03. The ordinary form of termination of a session is by sine die adjournment, although we do not here decide that there could be no other form of adjournment which...