State ex rel. Hazelton v. Turner

Kerwin, J. The contention on the part of the relator is (1) that the defendant Judge Turner was in error in his conclusions to the effect that under the state constitution the relator’s acceptance of the federal office vacated the state office, hence the appointment of the defendant Nohl was unauthorized and void; (2) that the appointment of defendant Nohl was void because made by defendant Judge Turner while he was without the state of Wisconsin; (3) that the office of relator could not be abbreviated nor could he be deprived of it without notice and hearing. 1. We see no escape from the proposition of law that the acceptance by the relator of the office of United States commissioner operated to vacate ipso facto his office of circuit court commissioner. The constitutional provision particularly lays down the rule which governs this case as follows : “No member of Congress, nor any person holding any office of profit or trust under the United States (postmasters excepted) . . . shall be eligible to any office of trust, profit or honor in this state.” This language is clear and leaves no question for consideration as to the incompatibility of the offices. Sec. 3, art. XIII, Const. Wis. Nor can there be any question that the office of court commissioner is an office of profit or trust under the United States. It is clearly an office. In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 670. It is equally clear that it is an office of both profit and trust and is an office under the United States. U. S. v. Mouat, 124 U. S. 303, 8 Sup. Ct. [174] 505; U. S. v. Germaine, 99 U. S. 508; U. S. v. Smith, 124 U. S. 525, 8 Sup. Ct. 595; 2 U. S. Comp. Stats. Anno. (1916) § 1333, p. 2189. The relator seems to rely upon U. S. v. Berry, 2 McCrary, 58, and State ex rel. Wheeler v. Nobles, 109 Wis. 202, 85 N. W. 367, but a careful examination of these cases shows that they, are distinguishable from the instant case and not controlling on the question now before us. Foltz v. Kerlin, 105 Ind. 221, 4 N. E. 439, 5 N. E. 672; Throop, Pub. Off. § 39; 29 Cyc. 1383; Rodman v. Harcourt, 4 B. Mon. (Ky.) 224; Mechem, Pub. Off. § 430. The relator seeks to escape the plain language of the constitutional provision referred to on the ground that the two offices are not incompatible and also on the ground of practical construction. The question of incompatibility of the two offices is foreclosed by the constitutional provision referred to and not open for consideration. This provision of the constitution is clear and no room is left for practical construction. State ex rel. Postel v. Marcus, 160 Wis. 354, 152 N. W. 419; Van Dyke v. Milwaukee, 159 Wis. 460, 150 N. W. 509; Lawrence Univ. v. Outagamie Co. 150 Wis. 244, 136 N. W. 619. The relator having vacated the office of circuit court commissioner in Wisconsin by the acceptance of the federal office, the defendant Judge Turner had the power and it was his duty to fill the office, and no proceeding was necessary to declare the vacation of the office. Mechem, Pub. Off. § 425. It is further contended by relator that the appointment of the defendant Nohl to the office of circuit court commissioner made by defendant Judge Turner while in Florida was invalid. The act of appointment was not a judicial act, but ministerial or administrative. In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 670. The appointment is made by the circuit judge, not by the court. Sec. 113.14, [175] Stats.; Mechem, Pub. Off. § 104; In re Appointment of Revisor, supra. It appears, however, from the record that after Judge Turner returned to Wisconsin he made a second appointment of the defendant Nohl. If any defect existed in the former appointment made while in Florida, it was cured by the latter. Moreover, the appointment was not a completed act until filed in the city of Milwaukee as required by sec. 113.14, Stats., therefore we are convinced that the appointment made in Florida, when filed as required by the statute, was a valid appointment. 2. It appears from the record that the last appointment of the relator made to the office of circuit court commissioner was made by Judge Turner on September 18, 1913. Judge Turner was then serving a term of office which expired on the first Monday of January, 1915. Sec. 113.14, Stats., provides that the court commissioner “shall hold office during the term of office of the judge who appointed him, and until his successor is appointed and qualified, unless sooner removed by the judge appointing him.” The term of Judge Turner expired on the first Monday of January, 1915. Sec. 113.01, Stats. So that after the expiration of the term of Judge Turner which expired January, 1915, the relator was merely holding over as circuit court commissioner, therefore his term as such holdover officer was subject to be terminated at any time at the will of defendant Judge Turner by the appointment of a successor, and was terminated when the defendant Nohl was appointed.-and qualified. Mechem, Pub. Off. § 401. By the Court. — The writ is denied without costs, Owen, J., took no part.