State ex rel. Hayden v. Arnold , 151 Wis. 19 ( 1912 )

■Mabshall, J.

Is mandamus a proper remedy to restore a person to an office from which he has been unlawfully removed ?

In examining authorities hearing on the proposition stated, at least, the following situations should be observed:

(1) In general, where a person has been ousted from office, unlawfully, as he claims;

(2) Where a person was ousted and an action for possession commenced and brought to trial before the vacancy, thus in form created, was refilled;

(3) Where the circumstances exist as in No. 2, except the vacancy was filled after commencement of the action;

(4) Where a person seeks original possession of an office ■against the one holding the same by right, de facto, the outside claimant having no prima facie title;

(5) Where a person, having prima facie evidence of title, seeks possession of an office against one therein holding the •same in defiance of such prima facie title and without color of right himself, other than such as mere possession might indicate and afford.

Eailure to note these differences, it is thought, has led to some apparent conflict in decisions.

In some cases, involving the right of a person claimed to have been unlawfully ousted from an office to use the mandar mus remedy to repossess himself thereof, the subject will be found treated in a broad general way as if such remedy were proper in all such cases, as for example, State ex rel. Gill v. Watertown, 9 Wis. 254. This court there, speaking by Mr. Justice Paine, said:

“It cannot be necessary-to examine authorities to show that a mandamus is a proper remedy to restore a party to the possession of an office from which he has been illegally removed. If citations were necessary, tbe following list would seem to place tbe question beyond discussion,” giving a large number of illustrations.

An examination of them at tbis time is not satisfying that tbe broad general declaration was grounded on adjudications referred to; but was based on several standard elementary works, wbicb support it so fully, it seems evident tbe court did not think there should be any fine distinctions between tbe different situations wbicb may be characterized by an unlawful ouster from office. That would not militate against the propriety of a trial court exercising some measure of discretion as to whether to allow such remedy or not and deny it in case of tbe office being occupied at tbe time of suing out tbe writ and tbe real right of tbe matter being better triable by quo warranto, wbicb could not often be tbe case, since tbe court might make tbe incumbent a party to a mandamus proceeding, if not so made at tbe start. Tbe mere form of remedy is not of controlling consequence under tbe Code. Whether tbe particular remedy is appropriate to tbe case is tbe main thing, — not whether it is tbe sole remedy, but, is it a proper one because it is appropriate to tbe end sought.

Tbis court has held that, under some circumstances, a person, who has never been in possession of an office claimed by him, may use tbe mandamus remedy to gain it of an adverse claimant. State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296; State ex rel. McCoale v. Kersten, 118 Wis. 287, 95 N. W. 120. In Board of Ed. v. State ex rel. Reed, 100 Wis. 455, 76 N. W. 351, after deciding tbe case upon other grounds, and apparently without any claim of tbe sort having been made by tbe prevailing party, it was said, substantially, that where a person has been wrongfully ousted from an office be cannot wait for redress till tbe place is filled again and then use tbe remedy by mandamus to regain possession,— not citing tbe early case in tbis state, wbicb did not recognize any exception, nor any other Wisconsin decision. The foreign authorities cited, upon examination at this time, are not satisfactory, from an original standpoint, and certainly not in view of the early case here. The only one which treats of the subject so as to challenge attention, is People ex rel. Wren v. Goetting, 133 N. Y. 569, 30 N. E. 968, and that only goes to the length of holding that, where the office has been filled and the right to regain possession turns. on some difficult question of statutory construction, the trial court, exercising the measure of discretion which it might, properly, in such a case, may deny the mandamus remedy.

In other jurisdictions mandamus, regardless of whether intricate questions are involved, has been said to be the more appropriate remedy for a wrongfully ousted officer to use for repossession. As for example, Lewis v. Whittle, 77 Va. 415. There the court said:

“Wherever there is a right to execute an office, perform a service, or exercise a franchise, more especially if it is a matter of public concern, and a person is dispossessed of such right and has no other specific adequate remedy, then the court ought to assist by mandamus upon reasons of justice, as expressed by the writ, and upon reasons of public policy, to preserve the peace, good order and good government. . . . Whatever may be the rule elsewhere, it may be safely laid down as the doctrine of this court that mandamus is the true specific remedy for a wrongful deprivation of an office.”

Continuing, in effect, where a person has been wrongfully ousted from his office and another installed therein the former is entitled to an adequate remedy for redress. The public is likewise interested and, in such circumstances, a remedy which merely decides the right but does not restore possession is not an adequate remedy:

“If, as suggested, quo warranto should be adopted, and the petitioners should succeed there, they would not thereby be put in possession of what they seek, but might still be put to the necessity of mandamus for relief. They might succeed by quo warranto in removing tbeir adversaries from tbe office, and yet need tbe mandamus to, put tbem in possession.”

A full and adequate remedy is needed to cover both and tbe party should bave tbe benefit of it if be asks for it.

Many other authorities might be cited to tbe same effect as tbe foregoing. We will refer to but a few. In Ex parte Wiley, 54 Ala. 226, tbe court remarked:

“While tbe current of authority does not recognize mandamus as an appropriate remedy to test a disputed title to a public office, or in tbe first instance to compel tbe admission of a claimant, yet if tbe rightful officer, in tbe actual enjoyment of tbe office, is wrongfully removed, it is generally regarded as tbe proper remedy to compel bis restoration.”

In High on Extraordinary Legal Remedies (3d ed.) at sec. 67, no exception is recognized to tbe propriety of tbe use of mandamus to restore to office a person who has wrongfully been removed therefrom. Much authority is cited to support that view, and among tbem, one bolding that tbe court should not thus interfere in case of an incumbency being de facto. That, tbe annotator remarked, is contrary to tbe current of authority.

It seems that the rule as here broadly stated in State ex rel. Gill v. Watertown, 9 Wis. 254, 258, has not been intentionally disturbed and that tbe practice should be regarded as settled accordingly; eliminating anything said in Board of Ed. v. State ex rel. Reed, 100 Wis. 455, 76 N. W. 351, to tbe contrary. Tbe remedy by mandamus, as has been said, is the “right arm of tbe court.” There should be freedom to use it whenever speedy justice and adequate redress seem to demand it, and when tbe public, in great measure, is interested, tbe court should be quite liberal in allowing such use. There should be no arbitrary rule of denial, except in case of occupancy of an office by one bolding de facto against another claiming title thereto, but never having been in possession, or regularly declared to "be entitled thereto, — a case involving a square dispute as to the title between one claiming the right, though holding no pmma facie title, as for example a certificate of election duly issued, and one in possession holding de facto.

It has seemed best to treat the subject of the mandamus remedy thus broadly, though the case might be rested on the narrow ground that no one was adversely in possession when the action was commenced, hence there was no one against whom quo wa/rranio would lie, leaving mandamus, clearly, the only remedy for relator. However, if there would be any great impropriety in allowing such remedy in case of the office having been filled before commencement of the action, because of its involving the title as between the two, it would seem that much impropriety existed in the circumstances of this case at the time of the trial, since the right to the office between adverse claimants was involved just the same, and without the incumbent being before the court.

No good reason appears why the liberal spirit of the Code should not be extended to mandamus actions so as to enable any one unlawfully ousted of his office to use the strong “right arm of the court” for his speedy restoration. That broad rule will, if well understood, prevent much vexation of courts, delay of justice, and expense to litigants and the public by efforts in trial and appellate jurisdictions for recognition of exceptions having no substantial basis to rest upon and not contemplated when this court first dealt with the matter.

In so far as approval of respondent’s claim for relief upon the facts appearing in the petition for the writ, is dependable upon whether the ordinance redistricting the city of Milwaukee into wards is invalid and, so, the cause for removal of relator did not exist, it must be resolved in favor of appellant, following State ex rel. Neacy v. Milwaukee, 150 Wis. 616, 138 N. W. 76, where the court held such ordinance to be valid.

Did the civil service law, — eh. 313 of the Laws of 1895, as amended, particularly, by cb. 547, Laws of 1911, — confer tbe power exercised in removing tbe relator? Tbe plan thereof is tbat, in general, positions and employments in tbe several principal- departments of tbe civil service of a city shall be made by tbe respective beads of sueb departments, under rules established in a manner specified. Tbe general scope is found in sec. 4 of tbe act and tbe exceptions in sec. 6. Among them is named “beads of any principal department.” It is not contended tbat assessors are within tbe general class unless as subordinate officers ’under tbe tax commissioner as “bead of a principal department,” within tbe meaning of sec. 6. So it cannot be well claimed tbat they are specifically excepted out of such general class unless they are “beads of principal departments” instead of being subordinates under tbe tax commissioner.

Tbe civil service law, in tbe beginning (Laws of 1895, cb. 313, sec. 4), provided tbat

“beads of departments shall respectively have power to remove or discharge at pleasure any person bolding any subordinate office, position or employment in their respective departments ;”

and tbe act of 1911 added:

“for cause which shall not be religious or political and shall be set forth in detail in writing and be filed within ten days with tbe secretary of tbe city service commission. But any such discharged subordinate shall be given an opportunity to make answer and bis answer, when made in writing, shall be filed with tbe secretary of tbe commission.”

At this point it is well to take note of tbe slight difference in phraseology between “beads of departments” mentioned in sec. 4 as having tbe power of appointment and removal and “beads of any principal department” mentioned in sec. 6 as being exempt from tbe civil service rules. It seems too clear to admit of fair doubt tbat tbe two terms are used synonymously. Therefore every bead of a department having tbe power of appointment and removal is tbe “bead of a principal department” and is, as sucb, exempt from tbe exercise of sucb power by a superior.

C'ounsel for tbe relator contend tbat tbe power of removal by tbe tax commissioner did not exist under see. 4, because tbe power of appointment was not thereby vested in bim; tbat tbe city charter of Milwaukee — cb. XVIII, sec. 6 (Laws of 1885, cb. 391, sec. 3), — from before tbe passage of tbe civil service law, has provided tbat

“Tbe mayor, with tbe concurrence of tbe common council, shall, on tbe first Monday of January in every second year, appoint an assessor for each ward in said city of Milwaukee, whose term of office shall commence on tbe first day of February following, who shall have been recommended to bim by tbe tax commissioner, and who shall be a resident of tbe ward for Which be is appointed, at tbe time of bis appointment, and who shall continue to reside in sucb ward during tbe term for which said appointment is made:”

tbat sucb provision was not superseded by tbe civil service law.

It must be conceded tbat, if tbe contention as regards undisturbed integrity of tbe charter be sound, then tbe tax commissioner did not possess tbe power of removal when be pretended to exercise it.

Tbe general scope of tbe civil service law is declared, plainly, in its title thus: “An act to regulate tbe civil service of cities.” By tbe first section it was restricted to cities of the first and second class. So tbe design was to regulate sucb service in tbe city of Milwaukee. In general language it, manifestly, vested in tbe “bead of each principal department” tbe power to appoint all bis subordinates. If tbe assessors were sucb they, obviously, were not, at tbe same time, “beads of principal departments” and excepted from full operation of tbe civil service law by tbe terms of sec. 6.

There was no express amendment, by tbe civil service law, of tbe city charter respecting the power of appointment of assessors. Was there an implied amendment, by lodging such power in the tax commissioner, or an express repeal of such charter provision and substitution of the civil service plan therefor, in that the two are in irreconcilable conflict and the civil service act contains a repealing clause as to “all acts and parts of acts conflicting with the provisions hereof are hereby repealed” ?

It is elementary that repeals and changes of existing laws by implication are not favored. Therefore, if a later law, in its terms, conflicts with an earlier enactment, and the former will admit of a reasonable construction leaving the latter in force, that is to be adopted. State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 144 Wis. 386, 129 N. W. 623. When it is thus said, it is supposed to harmonize with that other elementary and dominating rule, that the purpose of construction is to give effect to the legislative intent so far as that can reasonably be read out of the language used to express it. Therefore, though words may, looking only thereat, admit of a reasonable construction, working harmony between two enactments, if such construction will clearly violate the legislative purpose, it is not adoptable under the first rule, but must be rejected under the second. So when an act, by the-fair import of its terms, looking thereto alone, conflicts with a former act, a variation therefrom by construction, within the scope of the language used, which would be permissible to effect a plain legislative purpose, cannot be resorted to where the effect would be to defeat it.

It follows, assuming for now, that there is ambiguity as to whether the assessors in the city of Milwaukee are subordinates in a department headed by the tax commissioner, that the general purpose of the civil service law, if that can be plainly seen, is important.

Without stopping to discuss at any great extent, the subject suggested, it may be safely said that, by the civil service act, the legislature intended to go as far' as practicable in placing all administrative officers, below those elected by the people, in the cities dealt with, under the merit system. At that time the desirability of such a system was uppermost in the public mind, as a means of removing the mischiefs believed to exist in municipal administration. The evils to be remedied, the objects to be attained, and the general- spirit of the enactment, show a studied effort to give the broadest effect thereto practicable. First there is the general reference to the entire civil service of the city. Then the section intended to place all officers thereunder except those specifically excepted in a subsequent section. That the term “subordinate officers,” used at this point, was intended to include all except those specially excepted, maldng two classes, one mentioned in sec. 4 to be under the civil service rules and one mentioned in sec. 6 to be excepted therefrom, is put beyond all room for question by the intervening section, 5, providing that all applicants for offices in the civil service, except those mentioned in sec. 6, shall submit to the civil service rules. Sec. 6 completes the scheme by excepting certain principal officers, not including in the descriptive words, as before indicated, assessors, unless they were intended to be so by the words “heads of any principal department.”

The plain purpose of the civil service law, being as indicated, in case of any uncertainty as to what intended meaning can be read therefrom, either in respect to particular words, terms, or clauses, they should be read rather favorable to the end sought to be attained, than unfavorable thereto so as to restrict the scope thereof, where there may be, reasonably, two views. In case of the purpose of a law being very manifest and construction being required to determine the expressed meaning, the import of words and clauses should be bent, so far as can be, reasonably, to effect such purpose. Neacy v. Milwaukee Co. 144 Wis. 210, 128 N. W. 1063.

In the foregoing it has been assumed in favor of the appellant that there is obscurity in the civil service law as to whether it was intended thereby to supersede the charter provision as regards the manner of appointing assessors and as to whether they are “heads of principal departments,” and shows, it seems, that the first must be resolved in favor of appellant, — that is that the legislative purpose was to change the manner of. selecting assessors if they were spoken of as subordinates. In that case a change in the charter provision must have been in the legislative mind, since the power of appointment of subordinates was unquestionably conferred upon “heads of principal departments.” In such circumstances the two provisions cannot stand together and the early law must give way to the later, in harmony with the presumed legislative purpose.

Were the assessors treated as subordinates ? If so, the tax commissioner was treated as the head of a principal department. It would seem that, if practical construction could ever be controlling, it should be regarded decisive in favor of the affirmative of that question. It is the established doctrine of this court that “uninterrupted practice of a government prevailing through a long series of years and the acquiescence of all departments, legislative, executive, and judicial, sometimes becomes decisive even on constitutional questions.” Dean v. Borchsenius, 30 Wis. 236.

“The general understanding of a law and constant practice under it for so long a period by all the officers of government whose duty it has been to execute it, unquestioned by any suit brought or public or private action instituted to test or settle the construction in the courts, ought to be very strong, if not conclusive, evidence of its true meaning and application, and that they are such as it has thus received.” Scanlan v. Childs, 33 Wis. 663, 666.

Eor some sixteen years prior to the commencement of this •litigation, the Milwaukee charter provision respecting the selection of assessors has been supposed, by all concerned, to have been superseded by tbe civil service law. That bas been “tbe general understanding and constant practice under it . . . by all tbe officers of government whose duty it bas been to execute it.” It bas been submitted to, unquestionably, by every one. Tbe relator accepted office under it. He was appointed by tbe tax commissioner, according to bis petition, thirteen years before tbe happening of tbe incident of which be complains. He held office during that long period under such appointment which, if valid, was subject to recall at tbe pleasure of tbe person making it. Not even was it necessary, as we have seen, prior to tbe amendment in 1911, for tbe appointing officer to assign any cause for exercising tbe power of recall. During all that time tbe tax commissioner, by general consent, bas been regarded as bead of a principal department under tbe civil service law.

Now, it is true that, if there be no reasonable ground in tbe civil service act for tbe notion that tbe tax commissioner is tbe “bead of a principal department” having tbe assessors, bis appointees, as subordinates, practical cpnstruction cannot put such meaning into it. Such construction sometimes is tbe most conclusive means of getting tbe real legislative purpose out of a law, but cannot be resorted to for tbe purpose of changing it, any more than any other rule of construction can be so used.

Turning now to tbe scope of tbe tax commissioner’s duties, it is easily seen that there is a very legitimate basis for tbe meaning tbe administrators of tbe civil service law started with. Those who bad to do with tbe enactment appreciated, probably, better than we can at this time, tbe evils it was intended to remedy and tbe required status of tbe tax commissioner in tbe general scheme respecting assessors.

Tbe features of tbe Milwaukee city charter giving rise to tbe thought that tbe legislature regarded tbe tax commissioner as tbe bead of a principal department, are these: One of tbe major subjects dealt with in tbe charter is that of assessment and collection of taxes, eh. XVIII being specially devoted thereto. The. first office therein created is that of tax commissioner. A means of filling it was specified, and the place was clothed with much dignity. A term of three years was fixed and the selection was left to the mayor, subject to confirmation by the council. The one chosen was required to file an official oath and give a large bond to secure faithful performance of his official duties. He was given power to appoint a deputy tax commissioner and provided with clerks and an office and required to keep important records, — in fact all records appertaining to the subject of assessment of property for taxation. All complaints as to mistakes, and injustice otherwise, in the administration by the assessors, were required to be filed in his office to be disposed of by the board of assessors presided over by him. Power was given to the common council to provide for assistants to the assessors' to be appointed in the same manner as the regular assessors and to “enter- upon their duties under the direction of the tax commissioner.” In case of an assistant assessor for any ward,' the tax commissioner was required to “designate the property and territory to be assessed by each.” He was given “power, with the written approval of the mayor, to remove from office any assessor” for incompetency in his opinion or neglect to perform the duties of his office. All assessors were required to report their work to him and he was required to furnish to them specified information to aid in the performance of their duties. Upon receiving the completed tax rolls from the assessors, the commissioner was required to give notice of the times and places where they would be open for examination. There are other features of a persuasive character found in the charter, ch. 184, Laws of 1814, ch. 144, Laws of 1815, and ch. 391, Laws of 1885 (Compiled Charter of 1905). Moreover, by ch. 401, Laws of 1907, there is unmistakable recognition of the tax commissioner being head of a principal department. The whole framework thereof so indicates. He is there clothed with power to create from the assessors a board of five appraisers with extraordinary duties; also power to divide the city into assessment districts without regard to ward lines and do, or have done under his immediate supervision, much of the work ordinarily done by assessors; to assign to each assessor his particular task and they are required “to proceed under the supervision and direction of said tax commissioner” to perform their duties. The completed tax rolls are treated 'as made under the control of the tax commissioner. The work of the assessors is confined, in the main, to merely exercising their discretion as to the assessable value of property. The ordinary requirement that an assessor shall verify his roll when completed and deposit it with the person required by law to make out the tax roll, is taken away and conferred upon the tax commissioner. He is required to make oath to all matters ordinarily covered by the assessor’s oath, — to depose that “as far as practicable each parcel of real estate was valued by the assessor making such valuation from actual view of such parcel,” etc.

Taking the features aforesaid in the aggregate, they seem to make a very strong case in favor of the view that, by necessary implication, the tax commissioner was intended to be dealt with as the head of a principal department, — that rules for construction are not required to clear up any obscurity in respect to the matter. In any event, the major and controlling probabilities are in favor of the idea that the legislature so considered at the start, and long acquiescence in such view should be regarded as decisive; moreover, the legislative recognition of such view after prevalence thereof for twelve years seems to leave no reasonable room for doubt as to the right of the matter.

The trial court reached the rather illogical conclusion, it seems, that the tax commissioner is the head of a principal department, within the meaning of the civil service law, but that the Milwaukee charter provision respecting the appointment of assessors was not disturbed thereby, because the assessors are themselves heads of departments,- — not subordinates under the tax commissioner, — that they are not such since they are required to exercise their judgment in making the assessment without dictation from the tax commissioner,— and, therefore, relator is entitled to restoration though he was not legally appointed in the first place. The dominant feature of the law, the persuasiveness of the practical construction referred to, the manifest legislative recognition of the-status of the tax commissioner and the inconsistency of man-damusing one into office who was never entitled thereto, must have been overlooked. If the logic of the circuit court’s decision be sound, in that the power of appointment of assessors is not conferred upon the tax commissioner by the civil service law, then the result reached must be plainly wrong, as appellant’s counsel claim, since, in any event, the relator has no-more right to that which he seeks than a stranger. Why should the court restore a person to an office to which he was never legally appointed and in which he was little more, if anything, than a mere intruder, a person not appointed by any authority given power in that regard under any circumstances ?

To he a de facto officer one must be in place under color of right. If the office is appointive, as.said in the books, he must he in possession under authority having colorable power-to make the appointment, Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743; Ex parte Strong, 21 Ohio St. 610, 617 Prescott v. Mayes, 42 N. H. 56, 58; Fitchburg R. Co. v. Grand Junction R. & D. Co. 83 Mass. (1 Allen) 552, 557, though, probably, long acquiescence might make him an officer de facto upon the presumption of an appointment by lawful authority; Auditor General v. Menominee Co. 89 Mich. 552, 51 N. W. 483. But a person confessing himself, and found to be only, at best, an officer de facto, cannot have mandamus to obtain possession of the office. The doctrine throwing a measure of protection around an officer de facto is for the protection of the public, not to afford such an officer any advantage in ousting some other person from the de jure office. Adams v. Tator, 42 Hun, 384, 386.

Thus counsel for appellant is logical in seeking to overturn the final conclusion below as inconsistent with the one respecting the legitimate source of an assessor’s authority in a city of the first and second class, but concedes too much in assuming that the trial court’s holding as to such source is sound. We confess the wisdom of counsel for respondent in rejecting the trial court’s conclusion as regards the effect of the civil service law in changing the appointing power and attempt to sustain the judgment, nevertheless, upon the theory that the assessors are not subordinate officers under the tax commissioner; but, cannot agree with counsel on that, as we have indicated.

The trial court’s idea that the contrary of the foregoing is supported by anything decided in Johnson v. Milwaukee, 141 Wis. 476, 183 N. W. 627, does not seem to be warranted. The reasoning in that case is in harmony with that here. Emphasis was given there to the words “principal department” and the fact that the law required the officers in question, as here, to perform their duties under the direction of the one held to be “head of a principal department.” The idea was made prominent that there may be subordinate departments, each complete in itself, in the sense of having duties incident thereto to be performed in the discretion of the incumbent, and yet performance be under the direction of the head of a principal department of which each of the smaller ones is an integral part.

We see no escape from the conclusion that the tax commissioner of the city of Milwaukee is the head of a department contemplated by sec. 4 of the civil service law conferring power upon such to appoint subordinates and the companion power of removal, and that the assessors are subordinates within the scope of such authority, as has been understood to-be the case and must be, if relator has any standing whatever under any circumstances, as he refers to such source for his official status.

The point is made that the ground assigned for the removal of the relator did not constitute “cause” within the meaning of the civil service law. It is considered otherwise. The law did not contemplate there being two assessors in the same district. It, especially the act of 1907 (ch. 401), rather repels the idea of any such divided responsibility, or opportunity for clash of authority, or necessity for the tax commissioner to deal with such a situation to prevent a clash. A pretty plain case existed of necessity for recall of one of the assessors, since the new division of the city into wards-left two of such officers in the particular ward, each claiming to be an assessor of such ward. However, whether the cause was a good one or whether it existed, was not a matter to be settled by a mandamus action, as said in State ex rel. Barmen v. Arnold, post, p. 38, 138 N. W. 85. The relator accepted office under the law which reserved the right to remove him for “cause,” affording him opportunity to answer and raise the question of whether the assigned cause existed or not and whether it was a real cause within legislative contemplation. His remedy was under the act creating the system by favor of which he held office.

By the Oowrt. — The order appealed from is reversed, and cause remanded with directions to dismiss the proceedings with costs.