State ex rel. Williams v. Samuelson

• Decision Date: 30 April 1907
• Parties: STATE EX REL. WILLIAMS v. SAMUELSON.
• Court: Wisconsin Supreme Court

131 Wis. 499

111 N.W. 712

STATE EX REL. WILLIAMS

v.SAMUELSON.

Supreme Court of Wisconsin.

April 30, 1907.

Appeal from Circuit Court, Clark County; E. W. Helms, Judge.

Quo warranto by the state, on the relation of David Williams, to try the right of Ole Samuelson to the office of supervisor of assessments for Clark county. From a judgment sustaining a demurrer to the complaint, the state appeals. Affirmed.

Action of quo warranto involving the right of the defendant to hold and perform the duties of the office of county supervisor of assessment for Clark county, Wis., under chapter 445, p. 649, Laws Wis. 1901.

The complaint by appropriate allegations shows that the defendant was, in form, duly elected by the county board of Clark county to the office in question November 18, 1904, for the term of three years, commencing on the first Monday of January, 1905; that he duly qualified according to the requirements of said chapter 445, and has since that time performed the prescribed duties of such office, and further alleges that there is no such office in fact; that his pretense in the matter is a usurpation because of the law, so-called, aforesaid, being unconstitutional and void.

The defendant by his attorneys demurred to the complaint, first, for want of jurisdiction of the person of the defendant, or the subject of the action, second, for want of legal capacity to sue, and third, for insufficiency of facts to constitute a cause of action. The demurrer was sustained and plaintiff appealed.Geo. L. Jacques (R. J. MacBride, of counsel), for appellant.

L. M. Sturdevant and F. M. Jackson, for respondent.

MARSHALL, J. (after stating the facts).

The questions of whether the relator had legal capacity to commence and maintain the action and whether the facts alleged are sufficient to constitute a cause of action seem to be the ones relied upon to sustain the order complained of, so this opinion will be restrained accordingly.

The first question is ruled in favor of appellant by the statute. Section 3466, St. 1898. It is there provided that an action may be brought against the party offending in the name of the state by a private person on his own complaint when the Attorney General refuses to act, or when the office usurped pertains to a county and any person shall usurp, intrude into or unlawfuly hold any public office. True, in order for a private person to be competent to commence such an action he must have some interest in ending the claimed usurpation, but that is satisfied by his being a taxpayer of the district affected. State ex rel. Kelleher v. Fordyce, 115 Wis. 608, 92 N. W. 430. As suggested by appellant's counsel, the point under discussion was directly passed upon in that case. It was again passed upon very decisively in State ex rel. Weinsheim v. Leischer, 117 Wis. 475, 94 N. W. 299, this language being used:

“True, such private person, when not suing on behalf of the public must have some interest in the question, more than that which is common to all members of the community; but that interest certainly appears when it is shown that he is a property owner and taxpayer in the village, and hence is necessarily pecuniarily affected. * * * We can entertain no doubt but that the action is properly brought by the private relators named in the complaint, under the express terms of the statute. It is still an action by the state, but the state has, by statute, permitted it to be prosecuted by private parties.”

Whether the office here alleged to be usurped is strictly a county office or not, it quite clearly pertains to a county, within the meaning of the law. The name of the office is “county supervisor of assessment,” and the duties incident thereto are confined to and extend throughout the county. In the broad general sense of the term, the office is a county office. Moreover, it appears that the Attorney General was hostile to the maintenance of the action from the fact that he appeared therein as one of the attorneys for the respondent at the outset and continued as one of such attorneys down to the present time. That, as it has been held, shows that an application to him to commence the action would have been entirely futile, which is equivalent to a refusal to act in the matter on behalf of the state (People ex rel. Ayres v. State Auditor, 42 Mich. 422, 4 N. W. 274;State ex rel. Lamb v. Cunningham, Sec. of State, 83 Wis. 90-130, 53 N. W. 35, 17 L. R. A. 145, 35 Am. St. Rep. 27), thus rendering operative that part of section 3466, St. 1898, aforesaid, making it competent for a private person to commence the action when the Attorney General refuses to act. So there was legal capacity to commence and maintain the action both upon the ground of the attitude of the Attorney General in the matter and the ground that the office pertained to a county.

The first question in order respecting whether the law is valid is, does the feature which provides that the supervisor of assessment for each county shall be elected by its board of supervisors and for a term of three years, violate section 4, art. 6, of the Constitution, providing that “sheriffs, coroners, registers of deeds, district attorneys, and all other county officers except judicial officers, shall be chosen by the electors of the respective counties once in every two years”? In short, is the so-called office of county supervisor of assessment a county office within the meaning of the language “all other county officers” as used in the quoted words? If so, manifestly, the Legislature acted outside the scope of its authority in providing for filling the office otherwise than by an election by the people.

Conceding for the purposes of the discussion that in the broad, most comprehensive meaning of the term “county officers” a county supervisor of assessment would be included therein, the ultimate question is whether the language is to be taken in that sense or in a restricted sense excluding such officers.

While the language of a law, whether fundamental or a legislative creation, which is plain, looking at its literal sense, ordinarily, in such sense, is to be regarded as expressing the intent of the lawmakers, that sense may be viewed broadly or restrictively, or even violated, within the limits that the reasonable meaning of words cannot be departed from, in case of their being ambiguous and such departure being necessary in order to render efficient the purpose of the lawmakers. This subject has been many times discussed in our decisions. The law in respect to the matter was declared in Rice v. Ashland County, 108 Wis. 189, 192, 84 N. W. 189, 190, thus:

“There must be some uncertainty of sense, else the natural and ordinary meaning of the words must prevail. When there is no such uncertainty, to resort to judicial construction to extend or restrict the meaning of words and give to a legislative enactment a character other than that which its language plainly indicates, it is said, ‘would be extremely dangerous for there would be no law, however definite and precise in its nature, which might not thereby be rendered useless.’ * * * But courts are obliged in many cases to go further. * * * It is always presumed, in regard to a statute, that no absurd or unreasonable result was intended by the Legislature. Hence if, viewing a statute from the standpoint of the literal sense of its language, it is unreasonable or absurd, an obscurity of meaning exists, calling for judicial construction. * * * While courts do not, and cannot properly, bend words out of their reasonable meaning to effect a legislative purpose, they do give to words a liberal or strict interpretation within the bounds of reason, sacrificing literal sense and rejecting every interpretation not in harmony with the evident intent of the lawmakers rather than that such intent shall fail.”

So before attempting to read the provision of the Constitution in question other than in the plain literal sense thereof, we must reach the conclusion that ambiguity exists, when we view it according to established principles.

The language of a law is not necessarily free from ambiguity merely because looking thereto alone no uncertainty of meaning appears. Ambiguity, as has often been said, may as well spring from the effect that would result by applying a law in its literal sense, as from obscurity of expression in the words themselves. This subject was thus treated in Rossmiller v. State, 114 Wis. 169-178, 89 N. W. 839, 841, 58 L. R. A. 93, 91 Am. St. Rep. 910:

“It is fundamental that if, giving to the words of an act their literal or natural meaning, the conclusion reached would be unreasonable or absurd, some other meaning within the reasonable scope of the words may be adopted to avoid that result, if it appears that such meaning may probably have been the one intended.”

One of the familiar principles to be applied in determining whether words of a law which are plain on their face, are ambiguous nevertheless, is that it must always be presumed that the lawmakers did not intend anything clearly unreasonable or absurd. Another familiar principle is that implied repeals are not favored. Therefore, where a later enactment in its ordinary sense nullifies an earlier one to which, however, it makes no reference, ambiguity exists calling for judicial construction to the end that a meaning may be attributed to the later law, if the lawmakers so intended, which will give effect thereto without disturbing the earlier enactment. The rule on that subject has often been declared here. It was stated in Mason v. City of Ashland, 98 Wis. 540-545, 74 N. W. 357, 359, thus:

“In judicial construction, one of the most familiar rules is that conflicts by implication or otherwise, between different provisions of a statute, or between two statutes, are not favored and will not be held to exist if they may be otherwise reasonably construed. * * * When two acts or provisions are susceptible of a construction...