Town of Wonewoc v. Industrial Commission

Jones, J. Counsel for respondent have made an elaborate argument that Preuss at the time of his death was acting as a superintendent of highways, in his district either de jure or de facto, and was performing services for the town either as superintendent of highways or as an ordinary employee of the town. It is further claimed that a superintendent of highways is an employee of the town and not an officer. It is conceded that in the early history of the statutes •overseers of the highway were officers of the town, but it is claimed that by sec. 1238/, Stats., enacted in 1913, the office of superintendent of highways ceased to exist and that the statute created á “position” and not an office. Counsel for appellant maintain that a comparison of the sections relating to road overseers with the same sections as they existed after the amendments creating superintendents of highways shows that no material change has been made so far as the duties are concerned, and that when changes have been made the authority of the superintendents has [659] been increased rather than diminished, and that in numerous places in the statute the term “office” has- been applied to the duties of the superintendent, and lays stress on the many important duties which 'the statutes' impose on superintendents of highways. But in view of the conclusion we have reached we do not consider that this question is necessarily involved in the present case. It is conceded that Preuss was elected a member of the board of supervisors and that he had never resigned his office. It is claimed, however, that he had abandoned and vacated that office by assuming to act as superintendent of highways and that the duties of the two offices are incompatible. It is conceded that he was not appointed in writing by the supervisors as required by sec. 1229, and that no such writing was filed with the clerk. The evidence relied on to show his appointment was the testimony of one of the supervisors that at the town meeting Preuss had said that he would look after the roads in his district and that no one else had been appointed for that district. It appeared from the testimony that deceased had been acting as superintendent of some work in his district and that it was customary for town supervisors, as members of the board, to go out and see that the roads were kept up and bridges repaired. It also appears that at the time when the accident, happened he was preparing to attend to some grading in a road district adjoining his own; that while supervisors were attending to their duties in supervising work on the roads they received $2 per- day, but that superintendents of highways received $1.50 per day. Preuss was receiving the higher rate. There was little or no conflict in the testimony, and we cannot agree with the legal conclusion arrived at by the Industrial Commission and the trial court that the deceased was a superintendent of highways either de jitre or de facto. It is true that one who, while occupying one office, accepts [660] another incompatible with the first, ipso facto absolutely vacates the first office and his title is thereby terminated. “This rule, however, is subject to an important exception. Where the law expressly provides that the officer shall continue to hold his office until his successor is chosen and qualified, he will not cease to be an officer by resigning, so as to be relieved from the discharge of his duties as such officer.” State ex rel. Wheeler v. Nobles, 109 Wis. 202, 204, 85 N. W. 367. Sec. 811, Stats. 1915, provided in part: “Every town officer elected at an annual meeting, except as provided in section 808 and excepting justices of the peace, shall hold his office for one year, and every such officer shall hold until his successor is elected and qualified.” No successor had been elected to fill any vacancy in the office held by Preuss as supervisor and we do not consider that the work he was performing and about to perform was inconsistent with the ordinary duties of the office. The statute defining the word “employee” as applied to those in the service of municipalities is very broad; broad enough to impose heavy liabilities toward those doing work under contracts of hire, when there is taken into consideration the vast public improvements which are being made and contemplated by cities and other, municipalities. The statute in express terms excepts from those in the service of municipalities “any official of the state, or of any county, city, town, village, or school district therein.” When the legislature included this exception in the workmen’s compensation act if is not to be presumed that they' did not appreciate its full scope and meaning. Although the statute should be liberally construed to carry out its object and purpose, it does not follow that the pláin language should be disregarded. The testimony bearing on the question whether the case comes within the meaning of the statute was without conflict, and the finding of the Commission was therefore one [661] of law and not conclusive. Waldum v. Lake Superior T. & T. R. Co. 169 Wis. 137, 150, 170 N. W. 729; Radtke Bros. & Korsch Co. v. Rutzinski, 174 Wis. 212, 183 N. W. 168. It is our conclusion that at the time of the accident deceased was town supervisor and an officer within the meaning of the exception above stated, and that the application should be denied. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment setting aside the award and directing dismissal of the application.