State ex rel. Tracy v. Henry

• Decision Date: 24 June 1935
• Parties: STATE EX REL. TRACY ET AL. v. HENRY, STATE TREASURER AND DIRECTOR OF STATE INSPECTION BUREAU.
• Court: Wisconsin Supreme Court

219 Wis. 53

262 N.W. 222

STATE EX REL. TRACY ET AL.

v.HENRY, STATE TREASURER AND DIRECTOR OF STATE INSPECTION BUREAU.

Supreme Court of Wisconsin.

June 24, 1935.

Appeal from a judgment and order of the Circuit Court for Dane County; S. E. Smalley, Circuit Judge.

Affirmed.

In February, 1934, a petition was filed by Marie B. Tracy and twenty-six others, in the name of the state of Wisconsin, against the defendant, Robert K. Henry, as state treasurer and director of the state inspection bureau, for a writ of mandamus to compel the reinstatement of each of the petitioners as a deputy oil inspector under the state civil service law, chapter 16, Wis. Stats. (section 16.01 et seq.). An alternative writ of mandamus was issued on February 7, 1934. On May 2, 1934, the defendant filed a motion to quash that writ, and the court denied that motion by an order entered on July 3, 1934. Defendant appealed from that order, and it was affirmed by this court on January 8, 1935. State ex rel. Tracy v. Henry, 258 N. W. 180. On March 15, 1935, the defendant filed his return, and on March 18, 1935, the petitioners moved for judgment on the pleadings, including the return and a stipulation that defendant would not raise any question as to whether the petitioners had been duly appointed and had duly qualified as such deputy inspectors. That motion for judgment was granted by an order signed by the court on March 26, 1935, and pursuant thereto the clerk entered judgment and issued a peremptory writ of mandamus on March 28, 1935. Defendant appealed from the order for judgment, the judgment entered pursuant thereto, and the peremptory writ.James E. Finnegan, Atty. Gen., Herbert H. Naujoks, Asst. Atty. Gen., and H. H. Thomas, Sp. Counsel, of Madison, for appellant.

Joseph A. Padway, of Milwaukee, for respondents.

FRITZ, Justice.

The facts material on this appeal are substantially the same as those stated in connection with the decision reported in State ex rel. Tracy v. Henry (Wis.) 258 N. W. 180, and State ex rel. Nelson v. Henry (Wis.) 256 N. W. 714, excepting that, in so far as is material on this appeal, the following additional facts were admitted or alleged in the defendant's return: Upon the consolidation, by virtue of chapter 461, Laws 1933, of the state oil inspection department with certain other state departments as the state inspection bureau, the petitioners were permitted to continue in the civil service as deputy oil inspectors. As such inspectors they were certified on the pay roll of the state and lawfully paid for their services until the defendant, as state treasurer, at times alleged in the petition, all of which were prior to the commencement of this action, attempted to discharge the petitioners as such deputy oil inspectors, without citing any reason therefor, excepting that in some instances the notice stated that the discharge was because of the reorganization of the department. Subsequent to the decisions in State ex rel. Nelson v. Henry, supra, and State ex rel. Tracy v. Henry, supra, holding that those discharges of the petitioners were illegal, the defendant caused an investigation to be made as to the honesty, competency, efficiency, and ability of each of the petitioners to perform the duties of deputy oil inspector. Up to the time that defendant was compelled to make his return, he had completed his investigations as to fourteen of the petitioners (Alex Wilson, F. B. St. Louis, J. D. Stuart, E. B. Schickedantz, James Jondro, James J. Vennie, Oliver J. Zimmerman, John Haegele, Charles B. Collins, Christ Zelle, Louis Blegen, Morgan H. Vander Hyden, Ole J. Grinna, and Albert Gillis), who, for convenience of reference, will be referred to hereinafter as group A. In respect to thirteen of those fourteen petitioners (excepting therefrom Morgan H. Vander Hyden), the return alleged that defendant's subsequent investigations disclosed that there had existed, at the time of the original illegal discharges, a just and legal cause for discharge of each of those thirteen in group A because of grounds which the defendant specified in letters, which he sent to those petitioners on dates which were from thirteen to sixteen months subsequent to the date of the original discharge, and which he alleged to be so long prior to the date of his return that more than the reasonable time allowed by section 16.24, Stats., for a subordinate to make an explanation, had elapsed, and that, because of the failures of each of those petitioners to make such explanation, those subsequent discharges had become effective as to them. In addition, defendant alleged, in respect to James G. Vennie, who was one of those in group A, that he had been notified also that he had been suspended without pay because the district to which he had been assigned had been eliminated by division thereof and the annexation of the divisions to adjoining districts. In respect to Morgan H. Vander Hyden, the return alleged that he had been offered a position “to replace” an inspector who had entered the service after Vander Hyden had, but that the latter had requested that the offer be held open pending possible legislative action and a reorganization of the inspection bureau, and that he had not notified defendant of any definite decision.

In respect to four of the remaining thirteen petitioners (Marie B. Tracy, Robert L. Southey, Burr R. Tarrant, Sr., E. S. Nelson, C. H. Roepcke, Conrad J. Melberg, D. C. McLaughlin, Ray W. Hansen, O. C. Flugstad, Elmer B. Lindh, Wm. H. Ward, Carl Schmidt, and J. G. Christoph), all of whom will be referred to hereinafter as group B, the defendant alleged that he had also completed his investigation, and had found that there had likewise existed as to each of them, at the time of his original illegal discharge, just and legal cause for discharge, which was stated in letters sent to them on March 12, 1935, but that, prior to the time permitted for making defendant's return, there had not elapsed the reasonable time allowed by statute (section 16.24) for the making of an explanation by a subordinate and before the discharge could become effective as a matter of law. In respect to the remaining nine petitioners in group B, the defendant's return does not allege the existence of any cause for discharge, but stated that he had not completed his investigation in relation to them. As to all of those in group B, the defendant in his prayer in the return requested that the court should withhold judgment.

[1] In the order granting petitioners' motion for judgment on the pleadings, the court, in respect to all petitioners in group B, stated that it was satisfied that “they were entitled to reinstatement to their former positions in the service of the State and to all rights as such employees as of the date of the trial,” and ordered that their “motion for judgment for a peremptory writ of mandamus as prayed for in the petition reinstating” them “to their former positions in the service of the State” be granted; and, in that connection, the court further ordered, in respect to all of the twenty-seven petitioners, that they have a peremptory writ of mandamus to be issued forthwith, “directed to and commanding the said defendant, Robert K. Henry, Treasurer of the State of Wisconsin, and Director of the State Inspection Bureau, to reinstate petitioners to their former positions in the service of the State as prayed for in the petition.” As there is no allegation whatsoever showing that any legal cause ever existed in fact for the discharge of nine of those in group B, and as it appears that, as to the remaining four in that group, sufficient time allowed by section 16.24, Stats., for the making of an explanation in answer to the defendant's charges, and for a discharge to become effective under the statute, had not elapsed, all of those in group B were clearly entitled to have judgment on the pleadings, as was ordered by the court.

[2][3][4] In respect to the petitioners in group A, the court, in its order granting judgment on the pleadings, stated that, as to those petitioners, it was satisfied “that the said so-called subsequent discharges of the petitioners by the defendant do not affect the rights of any of the petitioners as to the relief they are entitled to,” and they “are entitled to reinstatement as of the date of their original discharge, and * * * to all rights of employees of the State to the time and date of the alleged subsequent discharges.” In that connection, the court said that it was of the opinion that “whatever rights any and all of the respective parties may have by virtue of any alleged subsequent discharges may be the subject of new and independent proceedings.” Upon those conclusions, the court then ordered that those petitioners were entitled to judgment for a peremptory writ of mandamus reinstating them “to their former positions in the service of the State as of the date of the alleged original discharges,” and ordered, as stated above, the issuance of such a writ commanding the defendant to reinstate all of the twenty-seven petitioners “to their formerpositions in the service of the State as prayed for in the petition.” That reference to the prayer in the petition, which did not in fact specify any time of reinstatement or the limits of any period for which reinstatement was prayed, was not necessarily in conflict with, nor did it constitute a modification of, the previous recital in the order that the rights to which the petitioners in group A were entitled were “all rights of employees of the State to the time and date of the alleged subsequent discharges.” On the other hand, although the provision in the judgment, as entered by the clerk, that the peremptory writ shall order the reinstatement of the petitioners, does not by any express words limit the reinstatement of those in group A to the time of a subsequent discharge, it is...