Fordyce v. State ex rel. Kelleher

92 N.W. 430, 115 Wis. 608, 1902 Wisc. LEXIS 269

• Court: Wisconsin Supreme Court
• Decided: November 28, 1902
• Status: Published

Opinion

Baedeeh, J.

This action is one under ch. 149, Stats. 1898, upon the relation of a citizen and taxpayer of Price county. It is plainly a proceeding in the nature of a civil action, although in the name of the state. State ex rel. Wood v. Baker, 38 Wis. 71; Slate ex rel. Att’y Gen. v. Portage C. W. Co. 107 Wis. 441, 83 N. W. 697; Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437. The claim, therefore, that it is a quasi criminal action, and one in which a change of venue cannot be secured, must be overruled. The statute (sec. 3466) specifically authorizes the action to be brought in the name of the state by a private person on his own complaint when the office usurped pertains to a county, town, city, village, or school district. State ex rel. Curran v. Palmer, 24 Wis. 63; State ex rel. Cornish v. Tuttle, 53 Wis. 45, 9 N. W. 791; State ex rel. Nelson v. Mott, 111 Wis. 19, 86 N. W. 569. State ex rel. Atkinson v. McDonald, 108 Wis. 8, 84 N. W. 171, distinctly .rules against the contention of plaintiff in error.

It is urged with great earnestness that, when Judge Paeisk made the order calling in Judge Dick to hear the case, he exhausted his right to malee any further order in the case, and that all further proceedings are without jurisdiction. The .statute covering cases like this is not entirely plain. Sec. 2625 provides that, when an affidavit of prejudice has been filed, the judge, in lieu of granting such change of venue, may, in his discretion, retain such action without entering an order changing the place of trial, until the last day of the then current term, and in the meantime may call upon some other circuit judge to attend and hold court during such current term. It then says:

“If such other judge . . . can so attend and hold court . . . the same shall he done with the same effect as if a change of venue to another circuit and a trial of such action had been had therein; but if no siich judge shall so attend an order for a change of the place of trial shall be entered in each action wherein proper application has been made, on the last day of such term, and thereupon such change shall be made.”

In this case the judge exercised his discretion to hold the case and call in another judge. Pursuant to such call, Judge-Diok appeared; and the pending demurrer was argued, overruled, and time to answer given. Thereupon the parties entered into a written stipulation that further time for answering sho-uld be given, and that the case should be placed on the calendar at the next term of the circuit court for Price county, and stand for trial without notice. It will be observed that the statute contains no provision as to- what shall be done with the action in case another judge attends and the matter is not disposed of by final judgment. If the judge called upon to attend does not appear, then an order making a change shall be entered on the last day of the term. But in this case a judge did appear, and a trial of the legal issue was had. The defendant, insists that, if the action was removable at all, an order of removal should have been entered on the last day of the term. But the statute does not say so-. It is only when the judge fails to attend that such order shall be entered. We are met at this point, also, with the stipulation mentioned, that the case should remain in that circuit and go on the calendar at the-next term of court It is a serious question whether this stipulation was not a waiver of the application for such change of’ venue. Without determining that question, we think the statute, despite the omission mentioned, can he so construed as to effectuate its purpose and save the rights of parties under it. When the December term of the circuit court for Price county opened, the action was still pending therein, and the affidavit of prejudice was still on file.. Under the circumstances, we think the court had a right to treat the application for a change as a continuing one, and to call in another judge to hear the case, or to send it out of the circuit. If this be not so, then we have the anomaly of a pending action over which no court had jurisdiction. Judge Dick had no power or authority over it, because his right became exhausted when the term at which he was called to preside expired. Judge Paeisii had no right to try it, because of the filing of the affidavit of prejudice. Hence, to avoid the absurdity suggested, the statute must be construed to give him the power to again call in a judge, as he did, to dispose of the case.

Another point made.by the plaintiff in error is that the judgment should be reversed on the ground that secs. 3'8 and 702a are unconstitutional. Sec. 702a provides that

“Ho person shall be eligible to the office of county superintendent of schools who shall not, at the time of his election or appointment thereto, have taught in a public school in this state for a period of not less than eight months, and who shall not, at such time, hold a certificate entitling him to teach’ in any public school therein, or a county superintendent’s certificate, issued by the state superintendent after examination and upon recommendation of the board of examiners for state certificates as provided by law: provided, that the foregoing provision shall not disqualify any person who held such office in this state on or before the first day of May, one thousand eight hundred and ninety five.”

Sec. 38 prohibits the county clerk from placing the name of any person on the official ballot as a candidate for the office of county superintendent of schools unless he possesses the qualifications mentioned. The theory of counsel is that eligibility to public trusts is a constitutional right, which cannot be abridged or impaired; that, under the constitution, the electors and the appointing authorities are wholly free to confer public stations upon any elector, according to their pleasure; and that this results as a just deduction from the express powers and provisions of our constitutional system. As a general proposition, and as- applied to strictly constitutional officers, this may be true. But the rule has certain qualifications. The constitution prescribes no definite qualifications as to eligibility to- the office of attorney general or district attorney, yet we apprehend that, if the question were raised, the courts- would be obliged to say that none but attorneys at law were eligible. As remarked in State v. Russell, 83 Wis. 330, 53 N. W. 441, the name of the office implies the qualification. See People ex rel. Hughes v. May, 3 Mich. 598. The general proposition that the legislature has no power to prescribe arbitrary tests and qualifications for offices created by the constitution is admitted. But as to offices created by the legislature by statute, which may be abolished at will, no such rule applies. This was distinctly ruled early in the history of this state, and has never since been questioned. State ex rel. Tesch v. Von Baumbach, 12 Wis. 310; State and DeGuenther v. Douglas, 26 Wis. 428. Counsel for the plaintiff in error is mistaken in saying that the office in question is a constitutional office. It was first created by the legislature in 1861, by eh. 119. Prior to that time the supervision of schools was vested in town superintendents. The legislature had power, under the constitution, to create the office. We know of no restriction against their abolishing it whenever they believe the public interests require.

The right to hold office under our political system is not a natural right, but exists only and by virtue of some law expressly or impliedly creating and conferring it. Mechem, Pub. Off. § 64. It may be controlled by the constitution, but, when that instrument does not prescribe the qualifications, it is the province and the right of the legislature to declare upon what terms and subject to what conditions the right shall be conferred. Id. § 66. When the constitution has made some provision, but not exclusive ones, the legislature may add such others as are reasonable and proper. State ex rel. Att’y Gen. v. Covington, 29 Ohio St. 102; Darrow v. People, 8 Colo. 417, 8 Pac. 661. Where there are no limitations prescribed, the right to hold office is usually coextensive with that of suffrage. State ex rel. Schuet v. Murray, 28 Wis. 96. Rut the right to vote and the right to hold office should not be confused. Citizenship, residence, and age constitute the individual a voter, but other qualifications are absolutely essential to the efficient performance of the duties connected with almost every office. In offices created by the legislature, the right of the legislature to demand such additional qualifications as the nature of the particular office may reasonably require follows legitimately from the rule laid down in the Ton Baumbach Case. ETo specific provision of the constitution can be pointed to> as being breached by this holding. The matter of proper qualification in the person holding the office of county superintendent of schools is too important to allow any doubtful implication of prohibition from the constitution to deny it. The qualifications required are certainly reasonable, and even less than the importance of the office demands.

The language of this statute is that “no person shall be eligible to the office” who does not possess the qualifications mentioned. Confessedly, the plaintiff in error did not possess them. She was therefore ineligible h> hold the office or secure its emoluments. As will hereafter be seen, the question of whether the legislature has the power to- require any candidate to produce and file a certificate of qualifications for office before his name shall go on the ticket is not necessarily here involved. The judgment of ouster was clearly right, unless, as contended, the judgment declaring her right to have her name placed as a. candidate on the official ballot was a bar to this proceeding. The former action was against the county clerk, whose duty it was to prepare tbe official ballot. It was based solely upon tbe ground that secs. 38 and 702a were unconstitutional. Tbe petition for tbe writ of mandamus made no claim that Mrs. Fordyce was in fact qualified or eligible for ✓-tbe office. Tbe only issue presented and litigated was whether tbe legislature might lawfully require candidates for the office of county superintendent of schools to' file a certificate showing that they were eligible to office, before their names should appear on tbe official ballot. Had it been alleged that she was eligible for tbe office, it might well be contended that a judgment in her favor would have established her political status, and have been binding upon the voters of Price county. But \ no such issue was presented or litigated. The relator in this ■action was not a party to that proceeding. As a citizen of Price county, at the very farthest, he would only be bound by a judgment which declared Mrs. Fordyce’s eligibility to the office she sought. No such judgment has been pronounced. The issue here being entirely different, the judgment in the former case cannot be appealed to as a bar to this proceeding. See Grunert v. Spalding, 104 Wis. 213, 80 N. W. 589; Cromwell v. Sac Co. 94 U. S. 351; Nesbit v. Riverside Ind. Dist. 144 U. S. 610, 12 Sup. Ct. 746; Slater v. Skirving, 51 Neb. 108, 70 N. W. 493. It would be an anomalous proposition, indeed, to hold that a judgment by a trial court that a certain law was unconstitutional, at the_ suit of one citizen, should be a bar to a suit by another citizen, where even the same propo- • sition was involved. Much less can we so hold where the issues presented and the parties are different, as is the case in this proceeding.

What we have already said upon the- question of change of venue disposes of tire merits of the appeal from the order after judgment. If it be conceded that Judge Dice: had authority to pass upon the merits of the order calling in Judge Helms, and the judgment which followed the trial by the latter, tbe conclusion would be tbe same. Tbe order to show •cause was properly discharged.

By the Court. — Tbe judgment and order attacked are each affirmed.