State v. Roden , 219 Wis. 132 ( 1935 )

Rosenberry, C. J.

The question for decision in this case is, Was there a vacancy in the office of the register-of deeds for the term beginning at noon on January 7, 1935, which could be filled by the appointment made on January 4, 1935 ?

Sec. 17.03, Stats., provides :

“Vacancies, how earned. Any public office, including offices of cities, villages and school districts, however organized, shall become vacant upon the happening of either of the following events: . . .

“(9) The death or declination in writing of any person elected or appointed to fill a vacancy or for a full term before he qualifies, or his death or such declination before the time when, by law, he should enter upon the duties of his office to which he was elected or appointed. ...”

Under the provisions of this section it is plain that there was a vacancy in the office of the register of deeds when Boerner, who was elected to the office in November, 1934, died on December 27, 1934. If the statute is valid and controlling, the judgment in this case should be reversed.

Sec. 4, art. VI, of the Wisconsin constitution provides:

"... All vacancies shall be filled by appointment, and the person appointed to fill a vacancy shall hold only for the unexpired portion of the term to which he shall be appointed and until his successor shall be elected and qualified.”

The relator claims that there is a conflict between the provisions of the statute and sec. 4, art. VI; that sec. 4, art. VI, governs and that no appointment could be made for the term ending January 4, 1937, prior to the time when that term of office had begun or prior to noon on January 7, 1935; that the appointment made by Governor Schmedeman in this case was not “for the unexpired portion of the term,” but for the whole term. It is considered that the position of the relator is well taken.

Sec. 17.03 (9) has been in effect since 1871. Prior to 1882, sec. 4, art. VI, of the constitution, provided:

“Sheriffs . . . registers of deeds . . . shall be chosen by the electors of the respective counties, once in every two years, and as often as vacancies shall happen.”

In 1882, sec. 4, art. VI, was amended to read:

“. . . Registers of deeds . . . shall be chosen by the electors of the respective counties, once in every two years. . . . All vacancies shall be filled by appointment, and the person appointed to fill a vacancy shall hold only for the unexpired portion of the term to- which he shall be appointed and until his successor shall be elected and qualified.”

After 1882 vacancies in the office of register of deeds were filled by appointment and not by election. While some statutory provisions were changed to conform to the amendments of 1882, sec. 17.03 (9) remained unchanged. See sec. 17.07. In 1919, sec. 17.07 became sec. 17.21. It provides :

“17.21 Vacancies in elective county offices; how filled; term. Vacancies in elective county offices shall be filled in the manner and for terms as follows :

“(1) . . .In the office of . . . register of deeds . . . by appointment by the governor for the residue of the unexpired term. ...”

The provision of sec. 17.03 (9) defining what constitutes a vacancy in the office of register of deeds is inconsistent both with the constitution and the amendment of 1919, in that neither the constitution nor sec. 17.21 contemplates an appointment to fill a vacancy in an office, the term of which has not yet begun. If there is a vacancy and it can be filled by appointment before the term begins, then the appointment is for the full term and not for the unexpired portion of the term. The trial court correctly held for these reasons that Governor Schmedeman had no authority to appoint for the term ending January 4, 1937, and that the relator’s motion for judgment upon the pleadings should be granted.

In the briefs it was conceded that there was an appointment for the unexpired portion of the term ending January 7, 1935. It is considered that such concession was ill advised. This court takes judicial notice of the records in the office of the secretary of state showing an appointment to public office. Ernst v. State, 181 Wis. 155, 193 N. W. 978. The records in the office of the secretary of state disclose that appointment was made in the following language:

“TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING:

“Know Ye, That reposing special trust and confidence in the integrity and ability of Nicholas Henry Roden of Port Washington, Wis., I, Albert G. Schmedeman, Governor of the State of Wisconsin, have appointed and by these presents do constitute and appoint him as Register of Deeds of Ozaukee County, to succeed O. F. Boerner, deceased.

“And I do hereby authorize and empower him to exercise and fulfill the duties of that trust according to' his best discretion, for the term expiring on January 4, 1937, unless the Governor of this State for the time being shall think proper sooner to revoke and determine this Commission.”

It is apparent that so much of the language of this document as attempts to do more than to appoint a successor to O. F. Boerner, deceased, is surplusage. The appointee derives no power or authority to fulfil the duties of the office to which he was appointed from the governor. When he is appointed, his authority and power are derived from the statutes enacted by the legislature, and the governor by his appointment can neither enlarge nor restrict the authority conferred upon him by the legislature. The appointment was for the term expiring on January 4, 1937. There was only one term of office of register of deeds expiring January 4, 1937, and that was the term which would begin on the 7th day of January, 1935. There was therefore no attempt to appoint for the unexpired portion of the term ending January 7, 1935. Had the appointment been for the unexpired portion of the term ending January 7, 1935, the appointee would have, no doubt, under the constitution held office until his successor was elected and qualified. Not having been appointed for the unexpired portion of the term ending January 7, 1935, his attempted qualification for the unexpired term ending January 7, 1935, was an intrusion into that office and conferred no rights upon him. Therefore he did not hold over under the constitution. Governor Schmedeman having no- authority under the law to appoint for the term ending on the 4th day of January, 1937, when the petitioner, T. D. Ryan, was appointed by Governor La Follette on February 5, 1935, his appointment was a valid appointment for the unexpired term ending January 4, 1937.

By - the- Court. — Judgment affirmed.