State ex rel. Buell v. Frear

131 N.W. 832, 146 Wis. 291, 1911 Wisc. LEXIS 139

• Court: Wisconsin Supreme Court
• Decided: May 2, 1911
• Status: Published

Opinion

Tbe following opinion was filed June 1, 1911:

SiebecKER, J.

By sec. 2 of cb. 363, Laws of 1905, it is enacted that “appointments to, and promotions in tbe civil service of tbis state shall be made only according to merit and fitness, to be ascertained as far as practicable by examinations, which so far as practicable, shall be competitive. . . . No person shall be appointed, transferred, removed, reinstated, promoted or reduced as an officer, clerk, employee or laborer in tbe civil service under tbe government of tbis state, in any manner, or by any means, other than those prescribed in tbis ■act.” Tbis declares tbe purpose of tbe legislature, is evidence ■of tbe objects of tbe provisions of tbis act, and evinces an intent to change tbe previously existing practice and method of selecting persons for tbe state civil service.. An examination of tbe context of tbe act shows that it 'embodies a legislative ■endeavor to remedy existing evils in tbe civil service and to promote efficiency in tbe administration of state affairs. It was a well known and recognized fact that tbe former system, of selecting persons for tbe public service bad brought about-a practice which largely disregarded tbe elements of skill and fitness of tbe servant for tbe service and omitted consideration; of meritorious, faithful, and deserving service of tbe servant. It established a political practice of bestowing positions in tbe public service on persons who were chiefly interested in promoting their personal, political interests and those of their superiors, through whom they secured appointments and expected future preferment. These practices produced in their many obnoxious features a deplorable state of inefficiency, and the uncertainty of tenure in the service tended, obviously, to demoralize the public service. The object of this statute is to correct some of these evils and to place the public service on a basis of fitness and efficiency, through recognition of skill and proficiency upon entrance into the service and of experience and merit in securing promotions, and by giving security of continuance in the service. The various provisions of the act are well calculated as the means for carrying these - legislative objects and purposes into- effect, and constitute an appropriate scheme for correcting existing evils and for improving the civil service, thereby promoting good government.

The act is assailed by the respondent upon the ground that it abridges the privileges and immunities of the citizens of' the state, in that it creates arbitrary and unlawful discrimina-tions between different classes of citizens as regards the right to enter upon and continue in the public service. This contention seems to be founded on the idea that any citizen is. guaranteed the unqualified right to enter the public service regardless of his skill and fitness for the service. The privilege of holding a public office is not in its nature of the class of rights which are guaranteed by the constitution as the natural and inalienable rights of every citizen. It has never been treated as a natural right in our governmental system. It is. in its nature a privilege wbicb is extended to tbe citizens of tbe state npon sucb conditions and terms as tbe people in tbeir sovereign capacity may determine. As is stated in Conner v. Mayor, etc. 5 N. Y. 285, 295:

“Public offices . . . are not incorporeal hereditaments; nor bave they tbe character or qualities of grants. They are agencies. With few exceptions, they are voluntarily taken, and may at any time be resigned. They are created for tbe benefit of tbe public, and not granted for tbe benefit of tbe incumbent. Tbeir terms are fixed with a view to public utility and convenience, and not for tbe purpose of granting tbe emoluments during that period to tbe office-holder.”

In State, ex rel. Tesch v. Von Baumbach, 12 Wis. 310, this court, at an early day in tbe history of this state, speaking of tbe people’s power concerning public offices, of tbeir right to create constitutional offices, and of tbe legislative power concerning them, states:

“As to all sucb [constitutional] offices and public trusts, to-which tbe people, in the exercise of tbeir paramount authority, bave impliedly declared who shall be eligible, either by prescribing special circumstances wbicb shall disqualify, or by reserving to themselves or to tbe appointing authorities a certain freedom of choice, there are very obvious reasons for bolding that eligibility is in the nature of a constitutional right, and that tbe legislature possesses no power of exclusion not given by tbe constitution; but it is manifest that those reasons cannot be applied to a mere statutory office wbicb tbe legislature may create and abolish at will, _ and concerning wbicb tbe constitution contains no express provisions.”

It is furthermore declared that public offices omitted from specific constitutional regulation “are subjected to tbe discretion of tbe legislature, wbicb represents tbe sovereign power of the state, and can make sucb rules as it deems wholesome and proper for tbe maintenance of good government.” See, also, State v. Douglas, 26 Wis. 428; State ex rel. Williams v. Samuelson, 131 Wis. 499, 111 N. W. 712; State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475; Fordyce v. State ex rel. Kelleher, 115 Wis. 608, 92 N. W. 430. In tbe last case cited (page 614) this court declares:

“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 or conferring it.'. . . 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. . . . 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 Von Baumbach Qa&e.”

We refer to these expressions in former adjudications of this court at length to show that the power to create public ■offices and the right to prescribe the terms and conditions upon which they may be held by citizens rests with the people in their sovereign capacity, that no natural right thereto exists, •and that no such right is guaranteed or conferred on the citizen by the constitution. Shaw v. Marshalltown, 131 Iowa, 128, 104 N. W. 1121, 10 L. R. A. n. s. 825. In our system •of government no official power is vested in any of the individuals composing the state, and such power can only be exercised when it has been bestowed by the people through their governmental agencies in parceling out its official functions. The very conception of an office as a bestowal of a part of the function of a state necessarily implies that its functions are to be administered by individuals who possess the qualifications to exercise and perform them. To accomplish this the state must obviously possess the power to ascertain the existence of such qualifications before selecting the officer and to precribe regulations to carry such power into effect. We have shown that when this is not done by the people directly through constitutional provisions it then devolves on the legislative branch of the government to prescribe appropriate regulations for such purpose. These considerations negative tbe claim that the legislation in question is invalid because it. discriminates in the matter of the equal rights of all citizens to hold office. The state may require of persons seeking to enter its service such qualifications as the legislature may deem appropriate for the maintenance of good government. Nor is this legislative power so restricted in its exercise as to require uniformity in the qualifications for admission to the service. It rests with the legislature to impose such conditions as the nature of the various kinds of services demands and as may be required to remove existing or threatened evils incident thereto. So far as the act prescribes that appointments to and promotions in the civil service of the state “shall be made only according to merit and fitness,” to be ascertained by examinations when practicable; creates a commission consisting of three members to be appointed by the governor, by and with the advice of the senate, for the purpose-of carrying the law into effect; grants authority to them to make rules for carrying into effect the powers conferred on them; and excepts certain offices from the operation of the statute, it is an appropriate exercise of legislative power to secure improvement in the civil service; to regulate the civil service for the purpose of eradicating existing evils; to secure servants of skill and fitness; to deal more justly with servants entitled to reward for meritorious and efficient service; and to effectuate the purpose of promoting better government.

The contention is specifically made that the act is invalid in that it deprives the person exercising the power of appointment to public office of the right to employ a reasonable discretion in making a selection of persons qualified for office. Sec. 6 of the act provides: “No appointing officer shall . . . select or appoint any person for appointment, employment, promotion or reinstatement, except in accordance with the provisions of this act and the rules and regulations prescribed thereunder.” Sec. 16 provides that upon notice by an appointing officer to the commission of the existence of a vacancy in the competitive class, tbe commission witbin ten days “shall certify from the register of eligibles appropriate for the group in which the position to be filled is classified, the three names at the head thereof which have not been certified three times to the department or office in which the vacancy ■exists.” Appointments are to be made from such lists unless ■objection is made and sustained upon the grounds provided in sec. 11. Sec. 9 provides that such appointments “shall be for a probationary period of one, two or three months in the •discretion of the appointing officer, but dismissal for cause may be made during such period.” If such probationer’s ■conduct or capacity is unsatisfactory to the person appointing him he shall be notified in writing that he will receive no absolute appointment, otherwise his appointment is to be deemed absolute. The statute, in sec. 14, exempts from the operation ■of the statute certain positions, including “one deputy or assistant of each principal executive officer and the chief clerk ■or secretary of any board or commission,” “one stenographer for each appointing officer,” and “all other offices or positions, except laborers, for the filling of which competitive or noncompetitive examinations shall be found by the civil service ■commission to be impi*acticable on account of the temporary character of the employment or for special reasons satisfactory to the commission. ... No office or position shall be ■classified by the commission in the exempt class except after public hearing by the commission or any member or the chief examiner thereof.”

It is manifest that these provisions are a legislative expression on the subject as to what offices it was deemed appropriate that the appointing officers should have unlimited •discretion to select certain appointees who stand in close and confidential relations to them. The opinion doubtless also prevailed in the legislature that a selection from three candidates on the certified eligible list would provide a sufficient ■scope for the exercise of a reasonable discretion by the appointing officer in making appointments of persons found to be qualified to perform services under the appointing officer. Such a provision in a similar law was approved in People ex rel. Akin v. Kipley, 171 Ill. 44, 49 N. E. 229. We perceive no unreasonable restriction in the nature of this regulation for the exercise of the discretion of the appointing officer to select an appointee found to possess the qualifications pursuant to the tests prescribed by the law. The tests are to be practical in their nature and appropriate to ascertain the fitness and skill of the applicant and impose no unreasonable conditions or restrictions on the appointing officer in the exercise of his power, and clearly serve to aid him in selecting competent servants. A statement of the court in Rogers v. Common Council, 123 N. Y. 173, 25 N. E. 274, with reference to the civil service law of that state, is applicable to the policy involved in this legislation:

“Looking at it as a matter of common sense, we are quite sure that the framers of our organic law never intended to oppose a constitutional barrier to the right of the people through their legislature to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to be appointed to such office. . . . Statutes looking only to the purpose of ascertaining whether candidates for an appointive office are possessed of those qualifications which are necessary for a fit and intelligent discharge of the duties pertaining to such office are not dangerous in their nature, and in their execution they are not liable to abuse in any manner involving the liberties of the people.” See, also, People ex rel. Akin v. Kipley, 171 Ill. 44, 49 N. E. 229; Newcomb v. Indianapolis, 141 Ind. 451, 40 N. E. 919.

We are persuaded that if the statute is administered within the limits of the provisions as therein prescribed by the legislature, it in no way infringes upon the rights of the appointing officers in making their selections and appointments to the public service.

It is contended that the commission is granted arbitrary power to extend the exempt class. We do not so- regard it. They must include only those offices in this class as to which they in fact find that competitive or noncompetitive examinations are impracticable on account of the temporary duration-of the employment or for other special reasons. The phrase,, “for special reasons satisfactory to the commission,” means that the commission are to investigate, and when they find as a matter of fact that the merit and fitness of persons to perform the duty of such offices cannot be ascertained by an examination, then they are to place such offices in the exempt class. As to all other positions in the classified service the commission must enforce the tests prescribed by the law to-ascertain the qualifications of applicants.

It is also contended that the law is unconstitutional as an attempt to delegate legislative power to the commission. The-case of State ex rel. Adams v. Burdge, 96 Wis. 390, 70 N. W. 347, gives a concise statement of the principle by which this-contention must be tested:

“The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, ‘is between the delegation, of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.’ The first cannot be done. To the latter,, no valid objection can be made.”

It is claimed that the powers conferred on the commission by sec. 7, as to prescribing and amending rules; by sec. 9, relating to putting rules into effect, classifying offices, places, and employments; by sec. 12, providing for arranging all offices, positions, and employments in the classified civil service into the five classes specified in the act; by sec. 14, giving the commission the power to determine upon certain exemptions on account of the impracticability of ascertaining the merit of applicants by examinations; by subd. 2 of sec. 17, providing that the provisions of the statute-requiring examinations may be suspended upon evidence-showing peculiar and exceptional qualifications of the various'kinds specified in the statute to be required, — Are, in their nature, a grant of legislative power to the commission. The argument is made that the provisions of these sections confer legislative power on the commission, in that they are thereby authorized to create penal offenses, to make general legal rules, to classify the public service, and to suspend the operation of the statute. It is unnecessary to restate these various provisions here in detail. An examination of them, in connection with the other provisions of the statute, shows that the legislature provided a complete classification of the whole civil service of the state and specified what offices are within the classified and which within the unclassified civil service and into what group or classes the classified service is divided, and it imposes the duty on the commission of arranging all existing offices and places and those hereafter created pursuant to such classification. This is in no sense the power of making law. It is purely administrative action to make concrete application of the legislative classification of the service and to put into effect the general rules prescribed by the statute. It would be well nigh impossible to embody the name of every office within the civil service of the state in a statute for the purpose of actually arranging them into groups, as is directed in this law. When the legislature provided into, what general classes and groups the offices should be arranged, it became purely an administrative function of the commission to so arrange them. We have already shown that exemption from examination under the conditions prescribed in the act is not a suspension of the operation of the statute, but is the execution of an administrative function to ascertain the facts and conditions under which the law provides that such exemption shall be made. The authority thus conferred invests the commission with no arbitrary and uncontrolled discretion, but directs them to ascertain the facts and to apply the rules of law thereto under the prescribed terms and conditions. Such action is not legislative in character, but is the performance of an executive and ministerial duty within the regulations provided in the act.

It is contended furthermore that the power to make rules, as conferred on the commission, is clearly an exercise of legislative power. The act provides that the commission shall “prescribe, amend and enforce rules and regulations for carrying into effect the provisions of this act” (sec. 7), “shall put into effect rules for the classification of the offices, places and employments, . . . shall also make rales and regulations providing for examinations for positions in the classified service, . . . appointments to, removals from, and promotions and reductions therein, and for such other matters as are necessary to carry out the purposes of this act” (sec. 9). It must be observed that in every part of the act conferring this power it is declared that the rales which the commission are authorized to prescribe and enforce are such as are necessary for the purposes of carrying into effect “the purposes of this act.” No provision of the act, directly or by implication, authorizes any rule to be made that can add to or in any way alter or amend the regulations made by the law. Only such rules are authorized as serve to provide the details for the execution of the provisions of the law in its actual administration, to fix the way in which the requirements of the statute are to be met, and to secure obedience to its mandates.

It would be impracticable at this time to attempt an analysis of the rules the commission may have adopted. Such a review is best accomplished when the validity of some particular rule or regulation is brought to the court’s attention. The purposes of this case are fully answered in finding that the power to make appropriate rules and regulations for the purpose of carrying the provisions of the statute into effect is properly conferred on the commission and restricts them to making and enforcing suck rules as are appropriate to obtain an effective execution of tbe law.

Our attention is directed to tbe fact tbat among tbe penalties embraced in sec. 30 it is provided tbat: “If any person shall be convicted under tbis section, any public office wbicb sucb person may bold shall by force of sucb conviction be rendered vacant.” It is contended tbat tbis language was intended to include tbe offices of tbe secretary of state, tbe state treasurer, and tbe attorney general of tbe state. Tbe language employed is broad enough to include these officers as subject to tbe penalties prescribed. -It is manifest, under tbe principle of tbe decision in tbe case of State ex rel. Tesch v. Von Baumbach, 12 Wis. 310, tbat tbe legislature possesses no power to declare these constitutional offices vacant if the incumbent be found guilty of violating any of tbe provisions of tbis act, and it must be held tbat these officers are not subject to tbis specific element of tbe penalties, tbe vacation of bis office. Tbis result, however, does not affect tbe validity of tbe provisions of tbe act in its entirety.

We do not deem it necessary to discuss any other parts of tbe statute, for, as heretofore stated, tbe act in its dominant provisions makes provision for a complete general scheme and is an appropriate exercise of the legislative function to regulate tbe civil service of tbe state. Tbe validity of any of tbe minor provisions of tbe act, wbicb may be challenged on occasions when actual controversies arise, cannot affect tbe constitutionality of tbe act as a whole, and we therefore deem it unnecessary to indulge in further discussion of its provisions at tbis time.

By the Court. — Tbe motion to quash tbe alternative writ is denied, and tbe alternative writ is made peremptory. Tbe secretary of state is commanded to proceed to audit tbe relator’s claim and to issue to him a warrant upon tbe state treasurer for tbe payment of tbe amount found due him upon sucb audit. No costs are allowed to either party.