Kerwen, J.
The questions before us arise upon demurrer to the complaint as appears from the statement of facts.
The grain and warehouse commission of Wisconsin was created by ch. 19, Laws of 1905, amended by ch. 12 of the special session of 1905, and again amended by ch. 440, Laws of 1909, and by ch. 458, Laws of 1911. It is the contention of the appellant that the complaint fails to state a cause of action, therefore that the demurrer should have been sustained. The questions involving the sufficiency of the complaint will be treated in their order.
1. It is claimed by the plaintiff that the emoluments of the office of grain commissioner were increased while defendant was a member of the assembly. The constitutional provision invoked upon this contention reads:
“No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected.” Sec. 12, art. IV, Const.
Under the original act, Laws of 1905, the commissioners received a salary of $100 per month, payable out of the state treasury in the same manner as other salaries were paid. In 1909 the legislature amended the law as to salaries and provided that each member^ should receive a salary of $200 per [667]*667month, $100 of which should be payable out of the state treasury monthly in thé same manner as other salaries are paid, and making appropriation therefor; the other $100 to be paid monthly out of the funds or fees collected “after all legal obligations, including any moneys heretofore or hereafter advanced by the state, have been fully paid.” Ch. 440, Laws of 1909. In June, 1911, the law was again amended so as to provide that each commissioner should receive a salary of $200 per month out of the funds or fees collected under the provisions of the act. Oh. 458, Laws of 1911.
It is argued by counsel for plaintiff that the law of 1911 increases the emoluments of the office. We fail to see how. The salary, $200 per month, remains the same, and the only change is in the manner of payment. Under the 1909 law $100 was paid out of the state treasury, and the other hundred out of the fees or funds collected; while under the law of 1911 the whole $200 is paid out of the fees or funds collected. But it is argued that the payment under the 1911 law is more secure and certain than under the 1909 law. True, under the 1909 law the $100 is paid out of fees or funds after other obligations are paid, while such a restriction on the fund does not appear in the 1911 law. But under the 1909 law the first $100 is concededly safe, and only the other hundred dollars could be jeopardized in cáse of lack of funds, while under the 1911 law, in case of lack of funds, the whole salary might be jeopardized, depending upon the extent of the shortage.
But no facts are pleaded showing with any degree of certainty that the law of 1911 increased the emoluments of the office, and it is obvious in the nature of things that no facts could be, pleaded showing increase in emoluments by the 1911 law. The scope of the laws touching the subject cannot be broadened or varied by allegations in pleadings.
The complaint alleges that in June, 1911, there was a lack of funds in the treasury to meet the obligations of the com[668]*668mission and pay tbe second $100 of tbe grain commissioners’ salaries for tbe months of March, April, May, and J tine. But it appears tbe shortage was only temporary, since a fund of $5,742.47 was transferred to tbe grain and warehouse commission fund, tbe same being an amount previously paid into tbe general fund and representing a profit to tbe state over and above tbe necessary expense of tbe commission, and out of this fund the salaries for March, April, May, and June were paid in full. Tbe defendant received no benefit from this fund. True, tbe complaint alleges that relator verily believes that there will be times in tbe future when tbe amount of fees that can be collected will not be sufficient to meet all tbe obligations of tbe grain commission. This allegation is not even upon information and belief, only upon belief. Plaintiff further relies upon the allegations of tbe complaint to tbe effect that cb. 458 of tbe Laws of 1911 makes the present arrangement for payment of salary surer, preferable, and more remunerative than tbe prior law. These are conclusions not warranted by tbe law, and of coiirse cannot change or modify tbe scope or purpose of tbe law. Tbe demurrer admits only facts well pleaded, not conclusions. No change was made in amount of salary or time of payment in 1911; there was no increase of emoluments of tbe office' in 1911.
Contention is made that under tbe law as it stood prior to 1911 a situation might arise and conditions be such that there would not be money enough to pay tbe $100 payable out of fees or funds. A similar conjecture might be indulged as to lack of funds to pay out of fees or funds under tbe law of 1911 and even tbe $100 secured by tbe law of 1909 lost. This hue of argument involves mere speculation and conjecture. Tbe constitutional provision under consideration should be narrowly construed in favor of eligibility. Stale ex rel. Ryan v. Boyd, 21 Wis. 209; 29 Cyc. 1381, 1383, 1427; [669]*669U. S. v. Langston, 118 U. S. 389, 6 Sup. Ct. 1185; Riggs v. Brewer, 64 Ala. 282.
We tbink under tbe law and tbe allegations of tbe complaint it cannot be said tbat the emoluments of tbe office were increased in 1911.
2. It is further contended tbat tbe appointment was void because not made in January, 1911. Cb. 440, Laws of 1909, provides:
“The commissioners heretofore appointed under this act shall bold their offices until tbe first Monday in February, 1910, and until their successors are appointed and qualified. On or before tbe first Monday in February, 1910, tbe governor shall appoint three commissioners; tbe term of one such appointee shall terminate on tbe first Monday in February, 1911; tbe term of tbe second such appointee shall terminate ■on tbe first Monday in February, 1912; and tbe term of tbe third such appointee shall terminate on tbe first Monday in February, 1913. In January, 1911, and annually thereafter there shall be appointed in tbe same manner one commissioner for tbe term of three years from tbe first Monday in February of such year. Each commissioner so appointed shall bold bis office until bis successor is appointed and qualified. And in case of any vacancy in such commission, tbe governor shall fill tbe vacancy for the unexpired term so made vacant in tbe manner as original appointments are required to be made.”
Counsel cites Mecbem on Public Officers and from courts •other than Wisconsin on this point, but we tbink the decisions of this court settle tbe contention against tbe plaintiff.
It is true, as appears from the complaint, tbat tbe defendant was not appointed in January, nor until October, 1911. But under tbe decisions of this court we tbink tbe statute is directory, not mandatory, and tbat the appointment made after January is a valid appointment. State ex rel. Cothren v. Lean, 9 Wis. 279; Application of Clark, 135 Wis. 437, 115 N. W. 387.
It is also insisted under this bead tbat tbe appointment was [670]
Free access — add to your briefcase to read the full text and ask questions with AI
Kerwen, J.
The questions before us arise upon demurrer to the complaint as appears from the statement of facts.
The grain and warehouse commission of Wisconsin was created by ch. 19, Laws of 1905, amended by ch. 12 of the special session of 1905, and again amended by ch. 440, Laws of 1909, and by ch. 458, Laws of 1911. It is the contention of the appellant that the complaint fails to state a cause of action, therefore that the demurrer should have been sustained. The questions involving the sufficiency of the complaint will be treated in their order.
1. It is claimed by the plaintiff that the emoluments of the office of grain commissioner were increased while defendant was a member of the assembly. The constitutional provision invoked upon this contention reads:
“No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected.” Sec. 12, art. IV, Const.
Under the original act, Laws of 1905, the commissioners received a salary of $100 per month, payable out of the state treasury in the same manner as other salaries were paid. In 1909 the legislature amended the law as to salaries and provided that each member^ should receive a salary of $200 per [667]*667month, $100 of which should be payable out of the state treasury monthly in thé same manner as other salaries are paid, and making appropriation therefor; the other $100 to be paid monthly out of the funds or fees collected “after all legal obligations, including any moneys heretofore or hereafter advanced by the state, have been fully paid.” Ch. 440, Laws of 1909. In June, 1911, the law was again amended so as to provide that each commissioner should receive a salary of $200 per month out of the funds or fees collected under the provisions of the act. Oh. 458, Laws of 1911.
It is argued by counsel for plaintiff that the law of 1911 increases the emoluments of the office. We fail to see how. The salary, $200 per month, remains the same, and the only change is in the manner of payment. Under the 1909 law $100 was paid out of the state treasury, and the other hundred out of the fees or funds collected; while under the law of 1911 the whole $200 is paid out of the fees or funds collected. But it is argued that the payment under the 1911 law is more secure and certain than under the 1909 law. True, under the 1909 law the $100 is paid out of fees or funds after other obligations are paid, while such a restriction on the fund does not appear in the 1911 law. But under the 1909 law the first $100 is concededly safe, and only the other hundred dollars could be jeopardized in cáse of lack of funds, while under the 1911 law, in case of lack of funds, the whole salary might be jeopardized, depending upon the extent of the shortage.
But no facts are pleaded showing with any degree of certainty that the law of 1911 increased the emoluments of the office, and it is obvious in the nature of things that no facts could be, pleaded showing increase in emoluments by the 1911 law. The scope of the laws touching the subject cannot be broadened or varied by allegations in pleadings.
The complaint alleges that in June, 1911, there was a lack of funds in the treasury to meet the obligations of the com[668]*668mission and pay tbe second $100 of tbe grain commissioners’ salaries for tbe months of March, April, May, and J tine. But it appears tbe shortage was only temporary, since a fund of $5,742.47 was transferred to tbe grain and warehouse commission fund, tbe same being an amount previously paid into tbe general fund and representing a profit to tbe state over and above tbe necessary expense of tbe commission, and out of this fund the salaries for March, April, May, and June were paid in full. Tbe defendant received no benefit from this fund. True, tbe complaint alleges that relator verily believes that there will be times in tbe future when tbe amount of fees that can be collected will not be sufficient to meet all tbe obligations of tbe grain commission. This allegation is not even upon information and belief, only upon belief. Plaintiff further relies upon the allegations of tbe complaint to tbe effect that cb. 458 of tbe Laws of 1911 makes the present arrangement for payment of salary surer, preferable, and more remunerative than tbe prior law. These are conclusions not warranted by tbe law, and of coiirse cannot change or modify tbe scope or purpose of tbe law. Tbe demurrer admits only facts well pleaded, not conclusions. No change was made in amount of salary or time of payment in 1911; there was no increase of emoluments of tbe office' in 1911.
Contention is made that under tbe law as it stood prior to 1911 a situation might arise and conditions be such that there would not be money enough to pay tbe $100 payable out of fees or funds. A similar conjecture might be indulged as to lack of funds to pay out of fees or funds under tbe law of 1911 and even tbe $100 secured by tbe law of 1909 lost. This hue of argument involves mere speculation and conjecture. Tbe constitutional provision under consideration should be narrowly construed in favor of eligibility. Stale ex rel. Ryan v. Boyd, 21 Wis. 209; 29 Cyc. 1381, 1383, 1427; [669]*669U. S. v. Langston, 118 U. S. 389, 6 Sup. Ct. 1185; Riggs v. Brewer, 64 Ala. 282.
We tbink under tbe law and tbe allegations of tbe complaint it cannot be said tbat the emoluments of tbe office were increased in 1911.
2. It is further contended tbat tbe appointment was void because not made in January, 1911. Cb. 440, Laws of 1909, provides:
“The commissioners heretofore appointed under this act shall bold their offices until tbe first Monday in February, 1910, and until their successors are appointed and qualified. On or before tbe first Monday in February, 1910, tbe governor shall appoint three commissioners; tbe term of one such appointee shall terminate on tbe first Monday in February, 1911; tbe term of tbe second such appointee shall terminate ■on tbe first Monday in February, 1912; and tbe term of tbe third such appointee shall terminate on tbe first Monday in February, 1913. In January, 1911, and annually thereafter there shall be appointed in tbe same manner one commissioner for tbe term of three years from tbe first Monday in February of such year. Each commissioner so appointed shall bold bis office until bis successor is appointed and qualified. And in case of any vacancy in such commission, tbe governor shall fill tbe vacancy for the unexpired term so made vacant in tbe manner as original appointments are required to be made.”
Counsel cites Mecbem on Public Officers and from courts •other than Wisconsin on this point, but we tbink the decisions of this court settle tbe contention against tbe plaintiff.
It is true, as appears from the complaint, tbat tbe defendant was not appointed in January, nor until October, 1911. But under tbe decisions of this court we tbink tbe statute is directory, not mandatory, and tbat the appointment made after January is a valid appointment. State ex rel. Cothren v. Lean, 9 Wis. 279; Application of Clark, 135 Wis. 437, 115 N. W. 387.
It is also insisted under this bead tbat tbe appointment was [670]*670void because no request was made to tbe board of trade for recommendation. But tbe request was waived because recommendation bad been made without it. Tbe recommendation having been made by tbe board of trade without request by tbe governor, such request was dispensed with. Nor is it material that a long time elapsed after tbe recommendation before tbe appointment was made. Tbe board having made one recommendation, although without request from tbe governor, tbe law providing for request was satisfied, and no further action by tbe governor in that behalf was necessary, notwithstanding that tbe board did in June notify tbe governor that if tbe relator, whom tbe board recommended, was not satisfactory, it would like an opportunity to make another recommendation.
3. It is also claimed that tbe offices of member of assembly and grain commissioner are incompatible. Without determining whether they are incompatible or not, it is sufficient to say that under well established principles of law tbe acceptance of tbe latter office, if tbe offices are incompatible, vacated the former. State v. Jones, 130 Wis. 572, 110 N. W. 431; 29 Cyc. 1382 and cases cited; Tbroop, Public Officers, §§ 30-40;. Mecbem, Public Officers, §§ 422 — 424.
Counsel for respondent, however, makes some claim that the-defendant could not of bis own free will vacate bis first office-by tbe acceptance of a second, citing Mecbem on Public Officers, §§ 419 — 421. ,
Sec. 419 of Mecbem on Public Officers states tbe general' proposition that it is contrary to tbe policy of tbe law that' tbe same individual should undertake to perform inconsistent and incompatible duties, and sec. 420 lays down tbe rule that, where tbe offices are incompatible, tbe acceptance of the latter ipso facto absolutely vacates tbe former and terminates the-title of tbe incumbent thereto without any other act or proceeding. And sec. 421 simply makes tbe exception to tbe general rule in cases where the officer cannot vacate tbe first [671]*671office by bis own act. It is clear tbat tbe instant case does not come within this exception.
Our statute, secs. 961 and 962,’ confers upon such officers the right to resiga. Sec. 961 provides how resignation shall be made, and only requires the action of the officer, and sec. 962 provides that every office shall become vacant by resignation. So in the instant case the defendant had the absolute right to resign, therefore his acceptance of the office of grain commissioner, assuming that it was incompatible with the office of member of assembly, absolutely vacated the office of member of assembly.
Point is also made that the defendant was ineligible because of lack of personal qualifications. It is alleged in the complaint that it was the duty of the governor to appoint a person who is an experienced judge of grain; that defendant is without such experience which enables him to properly judge and grade grain and is without the necessary qualifications to enable him to properly fill the office. We think this contention is without merit and shall spend no time in discussing it.
It follows, therefore, that the complaint fails to state a cause of action, and that the demurrer thereto should have been sustained.
By the Court. — The order overruling the demurrer is reversed, and the cause remanded with instructions to the court below to sustain the demurrer to the complaint.