State ex rel. Wickham v. Nygaard

• Decision Date: 12 January 1915
• Citation: 150 N.W. 513,159 Wis. 396
• Parties: STATE EX REL. WICKHAM v. NYGAARD, COUNTY CLERK.
• Court: Wisconsin Supreme Court

159 Wis. 396

150 N.W. 513

STATE EX REL. WICKHAM

v.NYGAARD, COUNTY CLERK.

Supreme Court of Wisconsin.

Jan. 12, 1915.

Appeal from Superior Court, Douglas County; Charles Smith, Judge.

Certiorari proceeding by the State of Wisconsin, on the relation of James Wickham, against John H. Nygaard, County Clerk, etc. Judgment for defendant, and relator appeals. Affirmed.James Wickham, of Eau Claire, for appellant.

Fred Arnold, Dist. Atty., of Eau Claire, and W. C. Owen, Atty. Gen., for respondent.

BARNES, J.

This is a certiorari proceeding brought by the relator to set aside an income tax assessment levied by the taxing officers in the year 1913 on the salary received by the relator as circuit judge for the year 1912. The assessor of incomes assessed the relator's salary. The latter appeared before the board of review and objected to such assessment. The objection was sustained by the board, and the income tax assessor appealed to the state tax commission from such decision. The commission, without hearing or notice, reversed the decision of the board of review and ordered that said income be taxed. Thereupon the county clerk certified to the city clerk for collection a tax computed on the relator's salary. The proceeding was tried in the superior court of Douglas county, and judgment went against the relator, from which judgment he appeals to this court.

The relator makes two contentions: (1) His salary as a state officer was not subject to taxation; and (2) Teall, the income tax assessor, had no power to appeal from the decision of the board of review, and the tax commission had no jurisdiction to act on the unauthorized appeal.

[1] A question which is not raised, but which is obviously involved, will be first disposed of, and that is the competency of this court to hear and decide the pending controversy. The attorney for Judge Wickham stated on the oral argument that he was instructed by his client to waive any objection as to the qualification of the members of the court to decide the case and to consent that it might be passed upon. The Attorney General expressed neither assent nor dissent further than consent might be implied from silence and from filing a brief and participating in the oral argument without objection. The members of this court are not directly interested in this lawsuit but it is none the less true that the settlement of the main question of law involved will affect the majority of the court. If it is settled that Judge Wickham's salary is exempt from assessment for income tax, then the salary of every other public officer is exempt during his term, where such term began before the passage of the income tax law. The question is: Does the fact that the members of the court, or a majority of them, may or will be affected in a financial way by the decision which the court is called upon to make, disqualify them from acting? It is a question which not infrequently arises, although seldom in so pronounced a way as in the present instance. Cases often come before the court which affect the taxpayers of the city of Madison and of Dane county. A majority of the members of the court pay taxes in the city of Madison and are affected like other taxpayers by such litigation. The state has had many cases affecting the interests of all the taxpayers in it, including, of course, the members of the court. It is probable that a majority of the court carry life insurance in one or more mutual insurance companies, and have some remote interest as policy holders in the result of litigation affecting such companies. Other instances might be referred to, which present a situation not unlike the one which presently confronts us.

Section 2579, Stats., provides:

“In case any judge of any court of record shall be interested in any action or proceeding in such court, * * * such judge shall not have power to hear and determine such action or proceeding or to make any order therein, except with the consent of the parties thereto.”

It has been held under this section that the interest which disqualifies must be a pecuniary one. Hungerford v. Cushing, 2 Wis. 397.

In Board of Supervisors v. Board of Supervisors, 20 Wis. 139, a motion for a change of venue was made on the ground that the circuit judge was interested as a taxpayer in the controversy. The application was denied, and such ruling was held to be erroneous. It was said that the interest of the circuit judge was so trifling that, in the absence of an objection being made to his sitting, he would be held qualified. It was also said that, had he been called upon to act from necessity and to prevent a failure of the administration of justice, he would have been competent, notwithstanding the objection. To the same effect on this latter point is State v. Houser, 122 Wis. 534, 607, 100 N. W. 964.

The soundness of the decision in Supervisors v. Supervisors, supra, is subject to grave doubt. The statute was designed to reach substance, not shadows. The bare fact was made to appear that the judge was a taxpayer. The amount of the claim was $652.41. A distribution of this sum among the taxpayers of Milwaukee county might increase the judge's taxes from one to five cents--hardly any more. Such an unsubstantial interest should hardly have been held to be a disqualification. We do not wish to be understood as approving the decision in this opinion.

The point under discussion is exhaustively treated in Matter of Ryers, 72 N. Y. 1, 28 Am. Rep. 88, where many of the leading cases on the subject are cited and discussed, and the conclusion is reached that a collateral or indirect interest in the controversy does not disqualify, where there is no other judicial officer or body before whom the case can be taken for decision.

There is an additional and very cogent reason in this case why the court should decide the controversy. Section 9 of article 1, state Const., reads as follows:

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain justice freely, and without being obliged to purchase it, completelyand without denial, promptly and without delay, conformably to the laws.”

Now it is self-evident that, if an unlawful tax has been assessed against the petitioner, he has suffered a wrong, and that some of his property will be taken by means of unjust taxation. If he cannot go into any court to assert his right, he is absolutely deprived of the remedy which our organic law gives him. That law is above and beyond any inconsistent common-law rule that existed when the Constitution was framed, as well as any statute enacted since that time.

We do not lay down any hard and fast rule as to what interest disqualifies a judge from hearing a cause, but content ourselves with saying that we conclude that it is our plain duty to hear and decide the case before us, so that there may be no denial of justice. Any public officer has the right to raise the question that is here raised and to have it decided, no matter how distasteful it may be to judges to sit in a case where they may be affected by the result of the decision reached. We now pass to the questions argued in the briefs and at the bar.

1. Section 26 of article 4 of the state Constitution contains this provision:

“Nor shall the compensation of any public officer be increased or diminished during his term of office.”

The Income Tax Law, par. “o” of section 1087m2, provides:

“All wages, salaries or fees derived from service; provided, that compensation to public officers for public service shall not be computed as a part of the taxable income in such cases where the taxation thereof would be repugnant to the Constitution.”

[2] It is conceded that the tax was levied during the relator's term of office, and it is beyond question that he was a public officer. Supervisors v. Hackett, 21 Wis. 613;State v. Kalb, 50 Wis. 178, 6 N. W. 557.

Briefly stated, the position of the relator in reference to the above quoted constitutional provision, is this: If the state gives a salary with one hand and takes part of it away with the other, it diminishes the salary to the extent of the part taken, no matter under what pretense it is taken. The state may, if it sees fit, collect its entire revenue from a tax on incomes, and thus take away a large portion of the salary which it...