Watkins v. Milwaukee County Civil Service Commission, 76-473

• Decision Date: 27 March 1979
• Docket Number: No. 76-473,76-473
• Citation: 276 N.W.2d 775,88 Wis.2d 411
• Parties: Claude T. WATKINS, Jr., Plaintiff-Appellant, v. MILWAUKEE COUNTY CIVIL SERVICE COMMISSION and Edwin A. Mundy, Director ofMilwaukee County Institutions, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 775

276 N.W.2d 775

88 Wis.2d 411

Claude T. WATKINS, Jr., Plaintiff-Appellant, v. MILWAUKEE COUNTY CIVIL SERVICE COMMISSION and Edwin A Mundy, Director ofMilwaukee County Institutions Defendants-Respondents.

No. 76-473.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 28, 1979.

Decided March 27, 1979.

[88 Wis.2d 413] Starobin & Abrahamson, S. C., Thiensville, submitted brief for plaintiff-appellant.

Robert P. Russell, Corp. Counsel, and Patrick J. Foster, Asst. Corp. Counsel, Milwaukee, filed brief for defendants-respondents.

CALLOW, Justice.

This is an appeal from an order quashing an alternative writ of mandamus sought to compel the Milwaukee County Civil Service Commission ¹ to reinstate the petitioner to his classified civil service job. In quashing the writ, the trial court determined (1) that there was insufficient service of process, (2) that the Commission was not required to hold a hearing prior to accepting the petitioner's allegedly coerced resignation, and (3) that the relief sought was barred by laches. Reaching the opposite conclusions, we reverse.

Claude Watkins, petitioner, was an ambulance driver for the Milwaukee County Institutions for fourteen years. His petition alleges that on May 23, 1975, his superior, Clifton Drews, forced him to resign by threatening to seek criminal charges of theft against him. On June 17, 1975, petitioner's attorney sent a letter to the Milwaukee County Corporation Counsel rescinding the allegedly coerced resignation and demanding reinstatement. On July 15, 1975, Corporation Counsel responded that he would not recommend reinstatement of the petitioner. On September 3, 1975, in response to a letter of August 22, 1975, from the petitioner's counsel, the Chief Examiner for the Milwaukee County Civil Service Commission advised petitioner's counsel that there was no provision in the Civil Service Rules for a hearing on the matter. On February 27, 1976, petitioner's attorney again wrote to the Corporation Counsel. On March 30, 1976, Corporation Counsel responded on behalf of the Civil Service Commission that the Commission would not honor petitioner's demand to be reinstated.

On May 19, 1976, the petitioner filed a petition for an alternative writ of mandamus in the Circuit Court for Milwaukee County, naming as respondents the Commission The petitioner moved the court for reconsideration of its order and for a decision on the merits. The court did not reconsider the order and ruled from the bench that there was no requirement, on these facts, that the Commission hold a hearing.

and Edwin A. Mundy, the Director of the Milwaukee County Institutions. The alternative writ issued the same day, ordering the County to show cause June 7, 1976, why the petitioner should not be reinstated. Anthony P. Romano, Chief Examiner of the Commission, was served the day the alternative writ issued. On May 20, 1976, the writ was served on Mundy. On May 28, 1976, the respondents filed a motion to quash the alternative writ on the grounds (1) that the court lacked subject matter jurisdiction, (2) that service of process was insufficient, (3) that the petition failed to state a claim on which relief could be granted, and (4) that the action was barred by the doctrine of laches. There is no notice of motion in the record. The record does not indicate that any hearing was held on June 7. On June 14-18, 1976, petitioner served the alternative writ on four members of the Commission. The fifth was on vacation. On August[88 Wis.2d 415] 23, 1976, the Commission's motion to dismiss was heard; August 31, 1976, the order quashing the writ was filed. The trial court determined that it had no personal jurisdiction over the respondents because of insufficient service of process and that the claim was barred by the doctrine of laches. The court did not reach the merits of the petitioner's contention that the Commission was required to hold a hearing under sec. 63.10, Stats.

From the order quashing the writ, the petitioner appeals.

There are three questions presented: (1) Did the court obtain personal jurisdiction over the respondents by proper service in accordance with sec. 801.11, Stats.? (2) Does sec. 63.10, Stats., impose a plain legal duty on the respondents to hold a hearing before accepting the petitioner's resignation where the petitioner claims the resignation was coerced? (3) Is the action barred by laches?

SERVICE OF PROCESS

The trial court determined that it lacked personal jurisdiction over the Commission because the appropriate party was not served. The petition, order, and alternative writ of mandamus was served on the Commission's Chief Examiner on May 19, 1976, and on the Director of County Institutions on May 20, 1976. Two weeks after the defendants moved to quash the writ, service was made on four of the five members of the Commission. The defendants maintain that (1) each Commission member must be served personally, and (2) service on the members following the motion to quash was untimely.

Sec. 801.11(4), Stats., provides as follows:

"801.11 Personal jurisdiction, manner of serving summons for. A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:

". . .

"(4) Other Political Corporations or Bodies Politic. (a) Upon a political corporation or other body politic, by personally serving any of the specified officers, directors, or agents:

"1. If the action is against a county, the chairman of the county board or the county clerk;

"2. If against a town, the chairman or clerk thereof;

"3. If against a city, the mayor, city manager or clerk thereof;

"4. If against a village, the president or clerk thereof;

"5. If against a vocational, technical and adult education district, the district board chairman or secretary thereof;

"6. If against a school district, school board, the president, secretary or clerk thereof; and

"7. If against any other body politic, an officer, director, or managing agent thereof.

"(b) In lieu of delivering the copy of the summons to the person specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office."

Petitioner contends that service on the Chief Examiner as ex officio secretary of the Commission ² is sufficient under sec. 801.11(4)(a)(7), Stats., dealing with "other" bodies politic. Respondents contend that the Commission is not a "body politic," necessitating individual service on each member of the Commission, and that, even if it is a body politic, the Chief Examiner was not an "officer, director, managing agent" for purposes of service of process.

Respondents argue that "body politic" embraces a governmental body exercising political functions through elected officers. This interpretation is belied by the context of sec. 801.11(4)(a)(7), Stats. At common law, "body politic" referred to " 'a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.' " Munn v. Illinois, 94 U.S. 113, 124, 24 L.Ed. 77 (1876). Under the common law definition, there is but one body politic: the state. However, under sec. 801.11(4), Stats., the legislature recognized other bodies politic by providing for service on "other bodies politic" independent of the state.

We deem the statutory construction canon of ejusdem generis to be a useful tool in construing sec. 801.11(4)(a)(7), Stats. According to that principle of construction, "(w)here general words follow specific words in an enumeration describing the legal subject, the general words are construed to embrace only objects enumerated by the preceding specific words." (Footnotes omitted.) 2A Sutherland, Statutory Construction, sec. 47.17 (4th ed. 1973). Here, the phrase "other body politic" follows the enumeration county; town; city; village; vocational, technical and adult education district; and school district. The Commission fits well with the category described by the enumeration. The inclusion of vocational, technical, and adult education districts denigrates respondents' view that "bodies politic" embrace solely elective entities. ³ Vocational educational district boards, like the Commission, consist of appointed members who perform statutorily defined, important governmental functions entirely independent of the governmental entity which appoints members. This independence is of primary importance. To limit the aggrieved party to an action against the governmental unit which appointed the Commission membership would be ineffectual because a judgment or order directed against the county could not be enforced by the county or the court against the Commission.

In a different context, this court has held that cities and counties are bodies politic, Madison v. Hyland, Hall & Co., 73 Wis.2d 364, 371, 243 N.W.2d 422, 427 (1976), as are the "direct administrative arms of the state," State ex rel. Dept. of Public Instruction v. ILHR, 68 Wis.2d 677, 229 N.W.2d 591 (1975). In extending recognition of arms of the state as bodies politic, the legislature recognizes that various arms of government exercise independent governmental functions. By statutorily providing that there shall be a civil service commission in Milwaukee County and defining the duties and scope of authority, the legislature has directed the commission to act independently of the county board. Therefore, the commission must be subject to direct judicial proceedings in order to afford a forum to those persons allegedly aggrieved by unlawful acts of the commission. We observe that in Karow v. Milwaukee County Civil Service Commission, 82 Wis.2d 565, 263 N.W.2d 214 (1978), the respondent did not challenge jurisdiction in a There is no question that the Chief Examiner, as ex officio...