author:
Fairchild, J. Hallows, J.
      Gordon, J.

text:
    State ex rel. Sachtjen, County Judge, Plaintiff, v. Festge, County Clerk, Defendant.

      August 31
    October 6, 1964.

      For the plaintiff there were briefs by La Follette, Sinykin, Doyle & Anderson, attorneys, and Gordon Sinykin and Shirley S. Abrahamson of counsel, all of Madison, and oral argument by Gordon Sinykin.

      For the defendant there was a brief by Michael B. Torphy, Jr., district attorney of Dane county, William F. Lorenz, Jr., deputy district attorney, and William C. Lengacher, assistant district attorney, and oral argument by Mr. Lorenz.

    Briefs amici curiae were filed by H. E. Koehler, Frederic C. Eberlein, Lloyd G. Andrews, and Steve Aschenbrener, all of Shawano, for the Shawano County Bar Association, and by E. L. Wingert of Madison, for the Board of Circuit Court Judges.
   Fairchild, J.

The legislature has, effective with court reorganization, fixed a uniform basic salary for every county judge in the state. Sec. 253.07 (2), Stats., permits each county to supplement the uniform salary as follows:

“The county may pay each county judge compensation in addition to that specified in s. 20.930 but such additional compensation shall be the same for each such judge and the total salary of the- county judge cannot be more than the total salary of the highest paid circuit judge for the county.”

The county board of Dane county, in voting the $100 per month here involved, was acting pursuant to the statute just quoted. It contains nothing to require that increases shall await new terms of office.

Another statute, sec. 59.15 (1), Stats., provides that the county board shall establish, prior to the earliest date for filing nomination papers, the total compensation for elective officers paid in whole or in part from the county treasury, and that such compensation shall not be increased or diminished during the officer’s term. This statute, however, (if applicable to county judges) was superseded, for a period beginning February 27, 1951, and extended from time to time to December 31, 1963, by the Emergency Salary Adjustment Act.

Thus the county board of Dane county had statutory authority to grant the $100 monthly increase to relator during his current term unless sec. 26, art. IV of the constitution prevented.

The first sentence of sec. 26, art. IV, Wis. Const., provides :

“The legislature shall never grant any extra compensation to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract entered into; nor shall the compensation of any public officer he increased or diminished during his term of office. . . .”

We are concerned in this case with the portion which we have italicized above.

The primary question posed in this case is whether a judge of a county court, with the powers and attributes enjoyed since court reorganization, is the type of “public officer” to which sec. 26, art. IV, Wis. Const., applies. If he be such type, the question would follow whether the section applies to his compensation out of county funds as well as state funds.

It is clear that in many contexts “public officer” would include a judge of a county court as well as a justice of the supreme court, a judge of a circuit court, or a justice of the peace. Any one of them would fulfil the broad definition of “public officer” approved by this court in a different context. So would a number of county and municipal officers.

It will be seen, however, that the term “public officer” as used in sec. 26, art. IV, Wis. Const., has not been deemed to include every officer who fulfils the broad definition of the term, and that by consistent exclusion of officers of primarily local responsibility, “public officer” in sec. 26 has been interpreted virtually as if it read “state public officer.” Indeed this court has, in three decisions on the subject, used the term “state officer.”

1. Proposed exclusion of all judges from sec. 26, art. IV, Wis. Const. As previously stated, our question is whether a judge of a present-day county court is the type of “public officer” to which sec. 26, art. IV, applies. Relator has urged us to answer the question by deciding that “public officer” in that section was not meant to refer to any justice or judge.

Relator concedes that in order to adopt his position it would be necessary to modify or overrule prior decisions. He argues, however, that the restraint of sec. 26, art. IV, Wis. Const., has in significant instances become an impediment to good government; that change via the amending process is an uphill struggle because of the difficulty of discussing the merits with the public; that this court has found no violation of sec. 26, art. IV, in the legislature abolishing statutory state offices, re-creating them for new terms, and providing a higher salary for the new terms; that the term “public officer” is of vague and variant import, depending upon the connection in which it is used; that this court has declared that judicially adopted doctrines may be changed by the judicial process which created them; that justices and judges have ten and six-year terms, and the trend of the cost of living has made fixed salaries a severe economic hardship; that sec. 26 is in art. IV, dealing with the legislature rather than in art. VII, dealing with the judiciary.

Nine months ago, we had before us the Sullivan Case, involving the validity of a midterm increase paid out of county funds to a judge of a circuit court. Although both parties there had assumed the proposition that a judge of a circuit court was the type of “public officer” to which sec. 26, art. IV, Wis. Const., applies, we considered whether he was or not, and decided that he was. We said, with one justice dissenting and two not participating, that, “If there could have been any question whether the term 'public officer in sec. 26, art. IV, includes a justice or a circuit judge, almost universal practical construction has settled it.” We have reviewed the question.

Turning to the constitution as adopted in 1848, it seems to us that the most natural construction of the term “public officer” as used in sec. 26 of art. IV, Wis. Const., would include judges. The office of judge meets almost any pertinent definition of a public office, and in order to hold that “public officer” did not mean judge, it would seem necessary to find some provision within the document, or some circumstances at the time of adoption which would lead to that conclusion.

This court, in 1867, found in the customary practice ¡of remuneration of local officers on a fee basis a reason for limiting the meaning of “public officer” in sec. 26, art. IV, Wis. Const., to “those salaried officers paid by the state.” The fact that there was a basis in those years shortly after adoption of the constitution, for a judicial interpretation narrowing the meaning of “public officer” by excluding local officers by no means demonstrates that there were circumstances in the light of which we could, in 1964, exclude justices and judges of circuit courts. Incidentally, the author of the 1867 opinion was Mr. Chief Justice Dixon. In the same year he resigned and was reappointed, and the next year faced bitter criticism in a campaign for election, all in order to enjoy a salary increase (from $2,500 to $3,500) for which he would otherwise have had to wait two years. His actions indicate that the thought that a justice of the supreme court was not a “public officer” never crossed his mind.

We find nothing within the constitution to suggest that justices and circuit judges were excluded from “public officers.” Leaving aside the local officers mentioned in the constitution, there remain only the following, to whom it could have had application:

1. The secretary of state, treasurer, and attorney general, they enjoying two-year terms Under art. VI, Wis. Const.

2. The judges of the circuit and supreme courts, enjoying six-year terms under art. VII. Initially the judges of the circuit courts were also judges of the supreme court, with power in the legislature later to organize a separate supreme court. (The constitution, art. VII, also provided for judges of probate and justices of the peace and authorized the establishment of municipal courts and inferior courts. All these latter have been treated before 1962 as not being state public officers under sec. 26.)

3. The state superintendent of public instruction, enjoying a four-year term under art. X, Wis. Const.

4. “Officers whose offices may hereafter be created by law, . . .” Sec. 9, art. XIII, Wis. Const.

We find nothing within the document on the basis of which to exclude the judges from the term “public officer.” The location of sec. 26 in art. IV, Wis. Const., does not suggest such exclusion. Sec. 26 is in terms a limitation upon the power of the legislature over the compensation to be paid to the various public officers and applied to public officers provided for in other articles. Sec. 26 originally had no possible effect on the compensation of the members of the legislature, the governor, and the lieutenant governor in his capacity as president of the senate. Their compensation was expressly fixed, changeable only by amendment. When the constitution was ultimately amended in 1929, so that it no longer prescribed the compensation of members of the legislature, the question arose whether members of the legislature were “public officers” under sec. 26. This court held that they were, and in reasoning the matter left no doubt that this court considered justices and circuit judges to be such “public officers.” Reference was made to the separation of powers in the three primary branches of government and the preservation of each by a system of checks and balances. “That the term public officers was at the time of the adoption of the constitution generally understood to include members of the legislature as well as members of other coordinate branches of the government can scarcely be doubted.”

In considering the meaning of “public officer” in sec. 26, art. IV, Wis. Const., we also note that the section prohibits diminution as well as increase of compensation. It was doubtless intended to protect public officers from reprisals as well as to prevent improper rewards. Its purposes would be considered important with respect to judges as well as others. It is true that the rising price level has usually made sec. 26 a burden to public officers, and more so to justices and judges, but we think the construction must be made in the light of the intended purpose. So viewed, the longer terms of the judges provide no basis for concluding that the constitution makers did not intend sec. 26 to apply to them.

In the Sullivan Case we cited opinions of this court which have stated in passing or have implied that justices and judges of the circuit courts are “public officers” under sec. 26, art. IV, Wis. Const. The fact that this question has never really been in issue in any case is doubtless an indication that no interested person ever thought there was any question about it.

Justices and circuit judges appear to have accepted the proposition that they were “public officers” and to have lived by it for one hundred years. Reference has been made to the resignation and reappointment in 1867 of Mr. Chief Justice Dixon in order to avoid the restriction of sec. 26 of art. IV, Wis. Const., and begin immediately to receive an increase from $2,500 to $3,500. Mr. Chief Justice Winslow became a member of this court in 1891, being appointed to fill a vacancy. He was elected to full terms, beginning in 1896, 1906, and 1916. He died in 1920. His initial salary was $5,000 per year. An increase of $1,000, enacted in 1901, did not reach him until 1906. An increase of $1,500 was enacted in 1911, but he did not receive it until 1916. An increase of $1,000 was enacted in 1919, but he never received it. He published his “Story of a Great Court” in 1912, and in relating the Dixon incident, said: “Under the constitutional provision forbidding any increase or diminution of the compensation of any public officer ‘during his term of office’ the act [increasing the salary of a justice] could not have been made applicable to persons holding office at the time of its passage during their existing terms.” In a footnote he cited sec. 26 of art. IV. He was chief justice when the court decided State ex rel. Bashford v. Frear, Milwau kee County v. Halsey, and State ex rel. Wickham v. Nygaard in each of which the opinion either assumed or stated that justices or circuit judges are “public officers” under sec. 26.

The salary provided for justices of the supreme court when the separate supreme court was established was $2,000 per year. The legislature has enacted 12 increases in that salary, the first having occurred in 1857. The salary for judges of the circuit court originally provided was $1,500 per year and the legislature has enacted 13 increases in that state salary. Ch. 102, Laws of 1857, which enacted the first increases for both, provided:

“The salaries of the Judges of the Supreme and Circuit Courts in this State, who shall be hereafter elected or appointed, and whose term of office shall commence after the passage of this act, shall be two thousand five hundred dollars each; such salaries shall be payable quarterly in the same manner that the salaries of Judges of the Circuit Court are now payable; Provided, That this act shall not be construed to apply to nor to increase the compensation of the Judge of any Circuit now in office during his term of office.
“All acts and parts of acts conflicting with this act, except so far as the same may be applicable to the salaries of such Judges as are now in office, are hereby repealed.”

Every later statute providing for increase expressly provided that it would affect only the terms beginning after the date of passage or after some date specified by the legislature approximately at the time of passage.

In 1957 an effort was made to amend sec. 26 of art. IV, Wis. Const., so that whenever an increase in salary became effective as to one justice of the supreme court, judge of a circuit court, or member of a commission, it could go into effect as to all other justices, judges, or members of the commission. This proposal was approved by only one house but those who supported it undoubtedly believed that sec. 26 was applicable to justices and judges. In 1961 after approval by two legislatures, an amendment was submitted to the people which would have permitted midterm increases for all officers whose term was four years or more except for members of the senate. This amendment was rejected by the people. While it did not in terms refer to justices and judges, it is reasonable to believe that it was proposed with them in mind as well as the superintendent of public instruction and statutory officers whose terms are four years or more. In 1963 after approval by two legislatures, an amendment was submitted to the people which would have permitted the legislature to increase the compensation of justices of the supreme court and judges of other courts. It also was rejected. Those who supported it, however, evidently felt that sec. 26 applies to justices and judges and that its prohibition against diminishing compensation during a term would remain in effect as to justices and judges if the amendment were to pass.

Counsel has laid stress upon the changing circumstances in our society, economic situation, and government since 1848. Sec. 26 of art. IV, Wis. Const., as applied to justices of the supreme court has been made more onerous than it was originally by the increase in the length of terms of justices from six years to ten. The amendment so providing, however, was adopted in 1877, at a time when the legislature and the justices had apparently been assuming for at least twenty years that sec. 26 applied to justices and after there had been considerable public debate about the maneuver executed by Mr. Chief Justice Dixon.

The fact that a rising price level (and recently a rapidly rising one) has made sec. 26, art. IV, Wis. Const., a type of burden that was not originally intended, and particularly onerous to those with long terms, is certainly an argument for change by amendment, but we find it no argument at all for saying that the words “public officer” in the constitution, either in 1848 or in 1877, did not include justices of the supreme court and judges of the circuit courts.

We recognize, of course, that many provisions in a constitution must be interpreted in the light of changing social conditions and circumstances and the emergence of new problems. Illustrations are readily found in the broad concepts which are put into words as “due process of law,” “equal protection of the laws,” and “power ... to regulate commerce with foreign nations and among the several states” found in the federal constitution. This court has recently devised a remedy within the judicial power in order to redistrict the legislature notwithstanding the earlier thinking that unless the express formula in the constitution produced redistricting, no remedy existed.

Nevertheless, we are dealing in the present case with the meaning of a term, “public officer,” which seems clearly intended to have a definite meaning with respect to the types of officers provided for elsewhere in the constitution. The office of judge of the circuit court was expressly established by the constitution and the office of justice of a separate supreme court was expressly provided for although the establishment of the separate supreme court by the legislature was to be delayed for five years. It does not seem to us that this is a proper area in which to consider changing circumstances and other matters which may well bear upon the desirability of the particular provision. We are not persuaded by the argument that the relationship between the term “public officer” in sec. 26 of art. IV, Wis. Const., and the office of circuit judge and the office of justice of the supreme court dealt with in art. VII can change with the times.

In our view the evidence is overwhelming that in 1848 “public officer” in sec. 26 of art. IV, Wis. Const., meant a judge of the circuit court and also meant a justice of the supreme court whenever such separate court might be established and that the meaning includes the same officers today.

Accordingly we are unable to reach the answer that a county judge is exempt from sec. 26 of art. IV, Wis. Const., on the theory that all judges are exempt.

2. Has court reorganisation brought county judges under sec. 26, art. IV, Wis. Const.? In 1880 this court decided in State ex rel. Martin v. Kalb that sec. 26, art. IV, did not apply to the judge of a county court. The statute then being considered by the court reduced the compensation of a county judge during his term. It was held to be constitutional. Although the court took notice that the general statute authorizing county boards to fix the salaries of county officers, including county judges, provided that such salaries not be increased or diminished during a term of office, the court deemed this a choice made by the legislature, which the constitution did not require.

This decision was reached notwithstanding counsel’s argument that county courts are courts of record, with jurisdiction coextensive with the state; their services are as much for the benefit of the public as are those of the supreme or circuit courts; and the three courts are part of a single system constituting the judicial department of the state.

In Martin, the court relied on Board of Supervisors v. Hackett, which it summarized as “limiting the constitutional restriction as to the compensation of public officers to such officers as receive their compensation out of the state treasury.” Portions of the Hackett opinion quoted with emphasis were “such officers as receive a fixed salary payable out of the public treasury of the state” and “those salaried officers paid by the state.” Thus Martin, taken literally, does not wholly settle our present case because, since court reorganization, relator and all other county judges outside Milwaukee county do receive a fixed salary payable initially out of the state treasury, although a portion is ultimately borne by the counties. County judges in Milwaukee county receive their salary directly from the county treasury, but a portion is ultimately borne by the state.

The question presented is whether the changes in the county courts wrought by court reorganization, either in the courts themselves or in the arrangements for compensation, have now brought county judges into the class of public officers whose salaries are governed by sec. 26, art. IV, Wis. Const.

It is appropriate to consider the status of the county courts in the constitutional framework, and, in general terms, the changes effected by court reorganization.

County courts are statutory courts. The constitution did not create them nor require the legislature to do so. Sec. 2 of art. VII, Wis. Const., empowered the legislature “to establish inferior courts in the several counties, with limited civil and criminal jurisdiction.” This is the general authority for the creation of the county courts, as well as for numerous other inferior courts, with varying names and powers, created from time to time before court reorganization. The legislature may alter or abolish such courts, as well as create them.

Sec. 14 of art. VII, Wis. Const., required the election of a judge of probate in each county, but empowered the legislature to abolish that office in any county and confer probate powers upon such inferior courts as might be established in that county. The legislature promptly exercised this option. It established a county court in every county on January 1, 1850, abolished the office of probate judge, and conferred probate powers on the county courts.

Up to the time of court reorganization, effective January 2, 1962, statutes were enacted from time to time not only modifying the jurisdiction conferred generally upon county courts, but altering the jurisdiction of county courts in particular counties. Other inferior courts were created from time to time with wide variations in jurisdiction and procedure. The resulting lack of uniformity in a complicated court system provided the impetus for court reorganization.

County judges, at first, were allowed specified fees for services, some to be paid by litigants and some by the county. Later, salaries were authorized, generally to be fixed by the county board and, at times, fixed by the legislature. The amounts were not uniform, but before court reorganization, all were paid out of county funds. The situation was similar with respect to the various other inferior courts.

Court reorganization produced a system in which there are but two trial courts of record, circuit courts and county courts. It was deemed necessary to retain at least one type of inferior court on which to confer probate powers under sec. 14 of art. VII, Wis. Const. A substantial degree of uniformity was achieved with respect to county court jurisdiction and a basic salary was set, the same for every county judge. It was set substantially above the figure formerly paid in many counties, and the county judge was prohibited from practicing law.

There is a separate county court in every county, except that Shawano and Menominee counties are joined in a single district, with one county court. Florence and Forest counties are combined for the purpose of electing one judge to serve the county courts of both counties. The county courts have limited civil and criminal jurisdiction, and, although they are more nearly uniform throughout the state than before court reorganization, they plainly remain, in constitutional terms, “inferior courts in the several counties, with limited civil and criminal jurisdiction” and with probate powers.

County court jurisdiction is uniform in every county except Milwaukee county. The criminal jurisdiction, outside Milwaukee, is concurrent with that of the circuit courts, except for treason. In Milwaukee county, the county court has trial jurisdiction over misdemeanors and offenses where the punishment does not exceed one year’s imprisonment or a fine not exceeding $1,000, or both. The county court of Milwaukee county does not have jurisdiction of actions affecting marriage. With that exception in Milwaukee, every county court has jurisdiction in civil matters concurrent with the circuit court except actions for damages in which more than $100,000 is demanded.

In some counties, the present county courts have greater jurisdiction than the county courts or other inferior courts had before court reorganization. In other counties the present county courts have less.

Before court reorganization a county judge could upon request, preside over the county court of another county. Since court reorganization, he may, upon request, and shall, upon assignment by the chief justice, preside temporarily over a circuit court as well as another county court. We have held that a county judge may, under the statute, validly act as a temporary circuit judge if he meets the constitutional qualifications of a circuit judge.

The county judges still have, after court reorganization, a number of administrative powers and duties. Presumably the legislature gave those powers to county judges because in almost all counties there is at least one county judge. Illustrations are: He may order a child sent to a school or class for the visually handicapped or deaf. He may act on the board of county canvassers if the county clerk is unable to act or if his office is vacant. He acts upon applications for treatment at certain public hospitals. In certain counties he may continue to administer public assistance programs.

Although court reorganization has achieved a high degree of uniformity, in county court jurisdiction, statewide, county courts remain, as before “inferior courts in the several counties,” created by statute, and subject to change or abolition by the legislature at will.

Under court reorganization as originally enacted, the legislature set a basic annual salary for every county judge of $12,000, and authorized each county board to supplement it. In counties outside Milwaukee the judge received his $12,000 basic salary from the state and the counties were required to reimburse the state for one half. Milwaukee county was required to pay the basic salary to the judges of its county court, and the state was to reimburse it for one half. In 1963, the legislature increased the basic salary for every county judge to $13,500, adjusting the reimbursement procedure so that out of this amount each county ultimately bears $6,000 and the state $7,500. As before, each county may pay a supplemental amount, determined by the county board.

It is clear that the legislature did not intend, by court reorganization, to bring county judges within the type of public officer to which sec. 26, art. IV, Wis. Const., is applicable. Sec. 253.07 (2), Stats., authorizing counties to pay supplemental compensation to county judges, contains no restriction against increasing or decreasing the compensation during the term. Sec. 256.02 (4) prohibits the county board from reducing the salary of a county judge during his term, but does not prohibit increases. Sec. 253.15 (1), Stats. 1959, prohibiting increases or decreases in the salary of a county judge during his term, was repealed. The restrictions of sec. 59.15 (1) (a), if applicable, were suspended by sec. 66.195. In addition, sec. 253.07 (2) authorizing the supplemental salary from the county provides that it “shall be the same for each such judge, . . .” This requirement would often be frustrated if changes in salary could not become effective for every county judge in one county at the same time.

It is true that this court, in State ex rel. Martin v. Kalb, in holding that the county judge was not a (state) public officer subject to sec. 26 of art. IV, Wis. Const., laid stress upon the fact that the county judge then drew his salary from the county and not the state. Under court reorganization, the payment of the basic salary of the county judge is shared by state and county. We do not view this change in the source of compensation as controlling. The fact that in 1880, and up to court reorganization, the salary of a county judge came from the county treasury demonstrated conclusively that he was primarily a local rather than a state officer. His status remains very much the same, although some of his compensation now originates with the state.

Had the legislature set the basic salary as it did and required every county to pay it out of county funds, sec. 26 of art. IV, Wis. Const., would have been clearly inapplicable under the Martin decision. Three of the guideposts set by the legislature for the benefit of the judicial council in formulating a plan of court reorganization were: “To have judicial salaries set by the legislature. ... To eliminate part-time judges and judges on a fee basis. ... To give each county a full time resident judge.” It may be inferred that it was thought necessary to provide a $12,000 basic salary in order to make it feasible to prohibit county judges from outside law practice, but politically impossible to enact court reorganization if all counties were compelled to pay that much. Many counties paid considerably less for part-time service.

The legislature accordingly provided for salaries to be shared by state and county treasuries. This aspect is emphasized by the characterization of the state’s payment as “aids.” In the 1961 state budget, the appropriation for the salaries and expenses of judges, reporters and assistant reporters of the county courts was referred to as “County courts, state aid” and in the 1963 state budget as “County courts . . . Aids to localities.”

It would seem most illogical to say that by enacting the salary arrangement, the legislature had destroyed its own power to change it at any time in the future it saw fit. Relator, like many other judges, had begun a term of office before court reorganization. His term continued, though his court was converted into a branch of the county court, with different powers and compensation. The legislature similarly increased the salary of many judges of county and other inferior courts during their terms. Surely the legislature retained its power to modify or destroy the county courts, or to convert them back to the attributes they had before. Can it be said, nevertheless, that because of the method of compensation chosen, the legislature imposed the restriction of sec. 26, art. IV, Wis. Const., upon its power to alter compensation ?

As shown above, the legislature intended that the county boards be free to increase the compensation of county judges without waiting for the beginning of a new term. We are to presume that all legislative acts are constitutional unless it appears that they are unconstitutional beyond a reasonable doubt.

We conclude that notwithstanding the contribution by the state of a share of the basic salary of county judges, their office has not sufficiently changed in character from a local to a state office to bring county judges within the class of public officer to which sec. 26 of art. IV, Wis. Const., applies. It follows that the legislature is free to raise or lower the salary of county judges during their terms and to authorize the county boards to raise or lower, midterm, the supplemental salary paid by the county. To hold otherwise would be to apply a constitutional restriction on legislative power in a doubtful case.

By the Court. — It is ordered, that a peremptory writ of mandamus issue commanding the county clerk of Dane county to approve and authorize payment to relator of the $100 monthly increase involved in this action.

Hallows, J.

(concurring in the result). I concur in the result that sec. 26, art. IV of the Wisconsin constitution does not prohibit a county from granting an increase in compensation to a county judge during his term of office payable out of the county treasury pursuant to secs. 253.07 (2) and 66.195, Stats. But, I arrive at this conclusion not on the broad ground that county judges are not public officers within the meaning of sec. 26 but on the narrower ground the increase in their compensation was neither determined by the legislature nor paid out of the state treasury. I believe county judges are public officers and to the extent their basic salary is fixed by the legislature and paid out of the state treasury, either directly or indirectly, such salary is subject to the constitutional restriction of sec. 26.

I agree with the majority opinion in its re-examination of the question whether the compensation of circuit judges and justices of this court come within the ambit of sec. 26, art. IV, and with its conclusion. In reaffirming State ex rel. Sullivan v. Boos (1964), 23 Wis. (2d) 98, 126 N. W. (2d) 579, this court correctly decided the issue presented. Although this court is committed to the proposition it has the power under the doctrine of stare decisis to modify and even overrule a court-made doctrine, Bielski v. Schulze (1962), 16 Wis. (2d) 1, 114 N. W. (2d) 105, that power should not be exercised unless there exists a more compelling reason than that the end justifies the means.

Desirable as equal salaries for equal work and midterm increases are for the judiciary, this court should not by judicial interpretation to attain such result overthrow the time-accepted precedents construing the constitution. Twice an appeal has been made to the people of this state to amend the constitution to eliminate the cause of the inequality of compensation within the same classification of judicial officers and unfortunately on both occasions the proposals were rejected. It would ill behoove this court by judicial construction now to reach a result which the people of this state have expressed a desire should continue. The solution lies in another appeal to the voters to change the constitution, not in a changed construction of it by this court.

Prior to court reorganization the compensation of county judges was not subject to sec. 26 because in some cases their compensation consisted of fees and not of a fixed salary and came under the rule of the Hackett Case, or if a fixed salary it was not paid out of the state treasury as required by the Kalb and the Rooney Cases. However, as part of and since court reorganization the basic salaries of judges outside of Milwaukee county have been determined and been paid by the state with a part thereof charged back to the county. In Milwaukee county the same result is reached indirectly by having Milwaukee county pay the salaries with a partial reimbursement by the state. The reason for this difference was to make it possible for the county judges in Milwaukee county to continue to qualify under the Milwaukee county pension system.

To my mind there is no question a county judge is a public officer. In State ex rel. Zimmerman v. Dammann (1930), 201 Wis. 84, 228 N. W. 593, the term “public officer” as used in sec. 26, art. IV, was defined as having attributes of continuous and permanent duties, a definite term, an oath of office, the exercise of some portion of the sovereign power of the state in which the public has a concern. The office of county judge fulfils these requirements. Under court reorganization, county judges (outside Milwaukee county) have for all practical purposes the same jurisdiction as circuit judges with the exception of treason in the criminal field and cases involving over $100,000 in the civil field. This court has held county judges may sit under some circumstances as circuit judges. State ex rel. McCormack v. Foley (1962), 18 Wis. (2d) 274, 118 N. W. (2d) 211. The salary of county judges is determined by the legislature and the employer’s cost of their pension on their basic salary is paid by the state, sec. 66.89, Stats. I cannot agree with the majority that county judges are by the nature of their office not to be considered public officers under sec. 26 because they are not state officers.

It is true in several opinions of this court the term “public officer” in reference to sec. 26 was used interchangeably with “state officer” but it was not held virtually or otherwise in those cases that a public officer meant only a state officer. The term “public officers” is used in sec. 26 without qualification or restriction. Sec. 26, art. IV, providing “the legislature . . . nor shall the compensation of any public officer be increased or diminished during his term of office” was a restriction on the legislature in its custodianship of state funds and includes within its benefits and disadvantages all public officers who receive their compensation from the state’s purse. By reason of the court reorganization county judges come under sec. 26, art. IV, the same as the legislators did when the constitution was amended to grant the legislature the power to fix the compensation of its members. State ex rel. Zimmerman v. Dammann, supra.

The public policy of sec. 26, as stated in the Dammann Case, i.e., to protect the public against the evil of letting a public official use his official power and influence to augment his own salary; to protect individual officers against legislative oppression; and to prevent persons from using the prestige and power which they possess by virtue of their public office from using same to their personal advantage, applies equally well to county judges as to circuit judges and justices of this court.

The reasoning of State ex rel. Sullivan v. Boos does not apply to the instant facts because the salary of circuit judges can only be fixed by the legislature under sec. 10, art. VII of the constitution. When additional compensation is authorized by statute to be paid to a circuit judge by a county, such payment to be valid must be pursuant to a valid delegation to the county of legislative authority, the exercise of which is subject to sec. 26, art. IV. The compensation is in legal effect fixed and determined by the legislature even though not paid out of the state treasury and this is sufficient to make sec. 26, art. IV, applicable. However, there is no requirement in the constitution that the legislature must determine the compensation of county judges.

Although the same public policy which inspired sec. 26, art. IV, has been applied by the législature by statute to county judges in many instances over the years, at the present time no statute exists prohibiting county boards from granting an increase in compensation in midterm to county judges. Sec. 59.15 (1), Stats., has been suspended temporarily by sec. 66.195. Thus to the extent the legislature has authorized but not directed the county to pay additional compensation to county judges under sec. 253.07 over that determined by the legislature and because such compensation is neither definitely fixed by the legislature nor paid out of the state treasury, sec. 26 does not apply.

For the foregoing reasons I concur in the result.

Gordon, J.

(concurring). I support the exclusion of county judges from the restrictions of sec. 26, art. IV of the Wisconsin constitution, but in reaffirming State ex rel. Sullivan v. Boos (1964), 23 Wis. (2d) 98, 126 N. W. (2d) 579, the majority opinion perpetuates and, indeed, aggravates the serious error of that decision.

This court has the awesome responsibility of superintending Wisconsin’s judicial system. Yet it is difficult to conceive of a more self-defeating decision than that reached here by the majority. The problem of providing an evenhanded method of compensating judges must be viewed as part of the total picture of improving the administration of justice.

As a result of the majority’s decision in the instant case, we will now have the absurd circumstance of circuit judges being denied interim salary increases, but county judges not being so restricted even though this court has held that county judges may constitutionally sit as circuit judges. State ex rel. McCormack v. Foley (1962), 18 Wis. (2d) 274, 118 N. W. (2d) 211.

In my opinion, this court should disavow the concept that sec. 26, art. IV, applies to the judiciary. As noted in the dissent in the Sullivan Case, the prohibitions of sec. 26 are not contained in those portions of the constitution which relate to the judiciary. They are found instead in the legislative section, and this supports the interpretation herein proposed.

In some 30 other states where a regulation on judges’ pay is expressed in a state’s constitution, it is found in the section thereof concerning the judiciary. The names of those states and the citations to their respective constitutions are annexed as an appendix to this concurring opinion.

In discussing the location of the restrictions on judicial pay, Mr. Justice Marshall stated in State ex rel. Bashford v. Frear (1909), 138 Wis. 536, 556, 120 N. W. 216:

We should say, m passing, that amendments were proposed in the constitutional convention placing the usual restrictions upon changing the salary of a justice of this court, in an appropriate section in the article on the judiciary, but it was not done, as we have seen.”

Since the restriction was excluded from the judicial section in the Wisconsin constitution, the court has before it a means of extricating itself from the inequitable and in some instances ridiculous results of previous interpretations relating to judicial salaries. It is especially ironic that the crazy quilt which covers judicial salaries was put together by judges themselves.

When the question of salary adjustment for statutory officers of the executive branch was presented to this court, we upheld as constitutional the patently evasive technique described in State ex rel. Reuss v. Giessel (1952), 260 Wis. 524, 51 N. W. (2d) 547. However, when given the occasion to set our judicial house in order, we cling to an antiquated interpretation which guarantees an unthinkably confounded salary pattern for the judiciary.

The majority opinion asserts that the meaning of “public officer,” as contained in sec. 26, art. IV, cannot “change with the times.” However, in my opinion, it is not really “the times” that have changed; rather, it is our comprehension that has grown. To illustrate: When the United States supreme court decided Betts v. Brady (1942), 316 U. S. 455, 62 Sup. Ct. 1252, 86 L. Ed. 1595, an indigent prisoner needed legal counsel just as much as he does today. Times have not changed so much as our understanding; as a result it is now held that constitutional due process requires the appointment of counsel for an indigent accused. Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799.

The majority opinion points out that such respected jurists as Mr. Chief Justice Dixon and Mr. Chief Justice Winslow were of the opinion that judges were within the definition of “public officer.” So, too, however, when Plessy v. Ferguson (1896), 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256, was decided, such respected justices as Messrs. Fuller, Field, and White were of the firm opinion that the use of separate but equal facilities did not deny equal protection of the laws to Negroes. When this view was rejected in Brown v. Board of Education (1954), 347 U. S. 483, 74 Sup. Ct. 686, 98 L. Ed. 873, it was not so much that times had changed but rather that our general awareness had matured.

It is this kind of comprehension and enlightenment that the Kentucky court recently evidenced in rejecting a preexisting, narrow interpretation as to which public officers were included within its constitutional limitation regarding salary increases. Board of Education of Graves County v. De Weese (Ky. 1960), 343 S. W. (2d) 598. Said the Kentucky court, at page 606:

“Where it is possible, the constitution should be construed liberally, that it may continue as a useful instrument in the life of our society. Doubtful questions ought to be resolved in favor of the freedom of the living generation to govern its own affairs in the light of modern circumstances.”

The mere fact that judges have heretofore been included within sec. 26, art. IV, does not make that interpretation immortal or imperishable. When the application of stare decisis permits the disparities which are here involved, judges should not blindly follow the outmoded precedents. In Washington v. Dawson & Co. (1924), 264 U. S. 219, 238, 44 Sup. Ct. 302, 68 L. Ed. 646, Mr. Justice Brandeis stated:

“Stare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command. The instances in which the Court has disregarded its admonition are many.”

Mr. Justice Holmes expressed a similar point of view in Bain Peanut Co. v. Pinson (1931), 282 U. S. 499, 501, 51 Sup. Ct. 228, 75 L. Ed. 482:

“The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.”

In Milwaukee v. Milwaukee E. R. & L. Co. (1921), 173 Wis. 400, 406, 180 N. W. 339, 181 N. W. 821, this court said:

“Law is the rule of reason applied to existing conditions. Obviously, when conditions change there must be a corresponding change in the law, else it would cease to be a rule of reason and would become a mere arbitrary static rule. . . . To do justice, then, under existing conditions, is its paramount office — all else, even the most venerable precedents, must yield to that, office.” (Emphasis added.)

Blackstone in his Commentaries (Vol. 1, p. 70), put the matter in these words: “Precedents and rules must be followed, unless flatly absurd or unjust.” For one circuit judge to earn thousands of dollars per year more than another circuit judge in the same circuit is “absurd or unjust.” For one justice of the supreme court to earn as much as $10,000 per year more than another justice for the same services is “absurd or unjust.” For circuit judges to be barred from interim salary adjustments while county judges (who may sit as circuit judges) are permitted to receive them is “absurd or unjust.”

APPENDIX.

States with an explicit mandate regarding changes in judges’ pay found in the judiciary section of their respective constitutions:

       Sec. 20.930, Stats.

       Sec. 66.195, Stats. 1961.

         Martin v. Smith (1941), 239 Wis. 314, 332, 1 N. W. (2d) 163. See also State ex rel. Zimmerman v. Dammann (1930), 201 Wis. 84, 98, 228 N. W. 593; 35 Words & Phrases (perm, ed.), p. 354. See also United States ex rel. Boyd v. Lockwood (1843), 1 Pin. (Wis.) 359, 363, in which the territorial supreme court held that the office of judge of probate was an office “where, for the time being, a portion of the sovereignty, legislative, executive or judicial, attaches, to be exercised for the public benefit.”

        Rooney v. Supervisors of Milwaukee County (1876), 40 Wis. 23, 26; Petition of Breidenbach (1934), 214 Wis. 54, 58, 252 N. W. 366; State ex rel. Sullivan v. Boos (1964), 23 Wis. (2d) 98, 112, 126 N. W. (2d) 579.

         State ex rel. Sullivan v. Boos, supra, footnote 6, and several decisions therein cited.

        State ex rel. Reuss v. Giessel (1952), 260 Wis. 524, 51 N. W. (2d) 547.

       42 Am. Jur., Public Officers, p. 879, sec. 2.

        State ex rel. Sullivan v. Boos, supra, footnote 6.

       Id., p. 106.

         Board of Supervisors v. Hackett (1867), 21 Wis. 620, 625 (*613, *618).

       Winslow, Story of a Great Court, p. 250.

       Sec. 21, art. IV, sec. 5, art. V, and sec. 9, art. V, Wis. Const.

        State ex rel. Zimmerman v. Dammann, supra, footnote 5.

       Id., p. 97.

       (1909), 138 Wis. 536, 120 N. W. 216.

       (1912), 149 Wis. 82, 136 N. W. 139.

       (1915), 159 Wis. 396, 150 N. W. 513.

       Ch. 395, sec. 6, Laws of 1852.

       Ch. 102, Laws of 1857; ch. 33, Laws of 1867; ch. 145, Laws of 1868; ch. 293, Laws of 1873; ch. 138, Laws of 1901; ch. 508, Laws of 1911; ch. 422, Laws of 1919; ch. 161, Laws of 1927; ch. 405, Laws of 1949; ch. 418, Laws of 1955; ch. 633, Laws of 1957; ch. 225, sec. 30, Laws of 1963.

       P. 265, Laws of 1848; ch. 102, Laws of 1957; ch. 65, Laws of 1873; ch. 246, Laws of 1885; ch. 138, Laws of 1901; ch. 520, Laws of 1905; ch. 592, sec. 21, Laws of 1913; ch. 238, Laws of 1919; ch. 440, Laws of 1927; ch. 186, Laws of 1947; ch. 97, sec 27, Laws of 1951; ch. 418, Laws of 1955; ch. 557, Laws of 1959; ch. 225, sec. 30, Laws of 1963.

       Jt. Res. 30, A., 1957 session.

       Jt. Res. 11, 1961 session.

       Jt. Res. No. 7, 1963 session.

        State ex rel. Reynolds v. Zimmerman (1964), 22 Wis. (2d) 544, particularly at pages 563, 564, 126 N. W. (2d) 551.

       (1880), 50 Wis. 178, 6 N. W. 557.

        Supra, footnote 12.

        State ex rel. Martin v. Kalb, supra, footnote 27, p. 188. See also State ex rel. Smith v. Outagamie County (1921), 175 Wis. 253, 263, 185 N. W. 184, and State ex rel. Reuss v. Giessel, supra, footnote 8, p. 529.

       Ch. 86, R. S. 1849.

       For a discussion of the history of the county courts and special courts, see Estate of George (1937), 225 Wis. 251, 259-261, 270 N. W. 538, 274 N. W. 294; 1906 Op. Atty. Gen. (1905), 527; 1937 Blue Book, pp. 677-679; 1946 Blue Book, pp. 399-401; 1950 Blue Book, pp. 423-427; 1960 Blue Book, pp. 478-483; 1962 Blue Book, pp. 550, 551; Karlen and Martinson, Statutory Courts in Wisconsin, 1949 Wisconsin Law Review, 207; Karlen, Constitutional and Statutory Courts, 1949 Wisconsin Law Review, 706; and Hallows and De Witt, The Need for Court Organization, 1954 Wisconsin Law Review, 376.

       Ch. 131, secs. 5, 6, and 7, R. S. 1849.

       Ch. 121, Laws of 1868.

        E.g., ch. 98, Laws of 1877.

       The salary of the county judges of every county having a population of less than 40,000 was increased by the establishment of the basic salary by court reorganization. The same is true of the salaries of county judges in 13 counties with populations in excess of 40,000. The basic salary was the same as the salaries of county judges in four counties and was less than the salaries paid to county judges in five counties, but each of the latter counties have voted additional compensation to their county judges so that the total compensation received by those judges is equal to or greater than the compensation received before court reorganization. See 1961 Report of the Judicial Council, pp. G-18-G 20; statistics of Judicial Council as to 1962 salaries of county judges.

       Ch. 495, sec. 116, Laws 1961; sec. 256.22, Stats.

       Sec. 253.015, Stats.

       Sec. 253.05, Stats.

       Sec. 253.12, Stats.

       Sec. 253.11, Stats.; the amount was raised from $25,000 by ch. 88, Laws of 1963.

       Sec. 253.11, Stats. 1959.

        State ex rel. McCormack v. Foley (1962), 18 Wis. (2d) 274, 281, 118 N. W. (2d) 211.

       Sec. 41.74, Stats.

       Sec. 6.61, Stats.

       Sec. 142.03, Stats.

       Sec. 46.22 (1), Stats.

       Sec. 20.930 (1) (a), Stats. 1961.

       Sec. 253.07 (2), Stats.

       Sec. 253.07 (1), Stats.

       Ch. 225, Laws of 1963.

       Ch. 315, sec. 13, Laws of 1959.

        Supra, footnote 27.

       Jt. Res. 112, A., 1957 session.

       The notes of the Judicial Council with respect to the court reorganization act provide: “Because the judges will be on call throughout the state, one-half of their salary will be paid by the state. The other half will be charged back to the county.” See notes appended to Bill No. 282, S. (1959), p. 24, as reprinted in 29 W. S. A., ch. 253 (1964 pocket part, p. 55).

       Sec. 20.005 (2) (a), line 99, Stats. 1961.

       Sec. 20.005 (2) (a), lines 105 and 106, Stats. 1963.

        State ex rel. McCormack v. Foley, supra, footnote 41, p. 279.

        Board of Supervisors v. Hackett (1867), 21 Wis. 620 (*613).

        State ex rel. Martin v. Kalb (1880), 50 Wis. 178, 6 N. W. 557.

         Rooney v. Supervisors of Milwaukee County (1876), 40 Wis. 23.

        Rooney v. Supervisors of Milwaukee County, supra; Petition of Breidenbach (1934), 214 Wis. 54, 252 N. W. 366; State ex rel. Sullivan v. Boos, supra.


source: Caselaw Access Project

author: Hallows, J.

license: Public Domain

text:
    Bradford, Respondent, v. Milwaukee & Suburban Transport Company, Appellant.

      September 1

    October 6, 1964.

      For the appellant there-were briefs by Kivett & Kasdorf, attorneys, and Nonaid J. Lewis of counsel, and oral argument by John M. Swietlik, all of Milwaukee.
    For the respondent there was a brief by James Buchb.inder, attorney, and Burton A. Strnad of counsel, both of Milwaukee, and oral argument by Mr. Strnad.

   Hallows, J.

The defendant argues the evidence does not support- the verdict on the issue of negligence and the wage-loss award was beyond reason and without any evi-dentiary foundation. It is also contended the permanent-injury award was grossly excessive. The plaintiff has taken a review and argues the case should have been submitted to the jury on the question of whether there was a violation of the safe-place statute in addition to common-law negligence applicable to public buses.

We consider there is credible evidence to sustain the jury finding of negligence on the part of the defendant. The plaintiff was a resident of the city of Milwaukee who ordinarily drove to work, but on the morning of February 11, 1960, her car was snowbound because of 16.7-inch snowfall the preceding day. She boarded a bus near her home on the northwest side of Milwaukee -and about 7:39 transferred to a bus at the corner of Twenty-Seventh and Wells streets to go east. The plaintiff was wearing a coat, scarf, and snow boots with a combination sole and heel and was carrying a purse and a flat package.

When the bus reached Jackson street some distance from where she got on the bus and about twenty minutes later, she walked to the front exit. Other persons preceded her in leaving the bus. As she arrived at the edge of the platform there was a lady on the step below. When the lady took a step down the plaintiff put her right foot onto the second step. When the person in front of her took another step down the plaintiff placed her left foot on the second step and then both of her feet went out from beneath her and she fell, landing on her buttocks. She was helped out of the bus by a man awaiting to board it. After a short conversation the bus driver helped her back into the bus. where she gave him her name. As the plaintiff was getting off the bus for the second time she noticed the steps and testified there was frozen snow an inch thick on them and she saw no sand thereon. The plaintiff testified there was ice on the steps the first time she alighted from the bus although she did not see it. This was concluded from the fact the steps felt slippery both times.

The bus remained stopped with its door open for some ten-fifteen minutes. The temperature was below freezing. This trip was the second of the morning for the bus. It was testified the driver before commencing the run from its western end had sanded the steps and cleaned them off with a brush. He noticed as he traveled east the steps were becoming slushy and wet because of the tracking in of snow by the people getting on the bus, but he saw no ice. At all times the bus driver was in a position to see the condition of the steps. The bus was equipped with a defroster and heater in front of the bus, both of which directed some heat toward the front steps which were made of flat hard rubber with ridges in it.

The jury accepted the plaintiffs version that there was ice or frozen snow on the steps which caused her to slip and not the appellant’s version that there was no ice on the steps at the time the plaintiff fell and any frozen snow which was on the steps when she got off the second time became frozen while the bus door remained open for ten to fifteen minutes.

The defendant contends this case is controlled by Ennis v. Milwaukee E. R. & L. Co. (1930), 202 Wis. 277, 232 N. W. 540, while the plaintiff relies on Rieschl v. Wisconsin Michigan Power Co. (1940), 236 Wis. 116, 294 N. W. 521, which distinguished the Ennis Case. One of the issues in the Ennis Case was the length of time the ice existed on an outside step of a streetcar. There was no evidence the icy condition of the exterior step of the streetcar existed a sufficient length of time for the operator in the exercise of the proper care to have corrected it. The outside steps were not regularly visible to the operator of the streetcar. In Rieschl3 as here, there was ice on the inside step of a bus. There, as here, there was no evidence of how long the ice existed before the passenger slipped thereon. In both cases the operator of the bus could see the steps at all times. The jury could draw the inference that in the exercise of the care required of the operator of the bus he ought to have known of the slippery condition in time to have prevented the injury.

The driver in the instant case testified he observed what he described as an accumulation of slush both at Twenty-Seventh and Thirty-Fifth streets while traveling east on Wells street. At no time after the bus left the west end of the run did the driver clean or sand these steps until he reached the east end after the plaintiff had fallen. There is no doubt the operator of the bus expected a slippery condition but also saw evidence of it on the steps. After the plaintiff fell the frozen snow was called to the driver’s attention, and he merely stated, “You got to expect that in this kind of weather.”

While a certain amount of snow and slush is to be expected in the entrance of a bus on a winter day when the streets and sidewalks are covered with snow, we cannot hold as urged by the defendant that the duty of the bus driver was fulfilled by only sweeping these steps off and sanding them at the end of a run. The accumulation of snow or slush on the steps forming ice renders the steps or is likely to render the steps of the bus slippery and thus unsafe during the run. A bus driver need not sweep and sand the steps at every stop but he does have a duty to ascertain and keep the bus entrances in a reasonably safe condition at all times and the effort to fulfil this duty increases in inclement weather. This is not an impractical or an unreasonable requirement.

The prevailing rule of the duty of a common carrier is stated in Ferguson v. Truax in 1908, 136 Wis. 637, 643, 118 N. W. 251, by quoting 1 Fetter, Carriers of Passengers, p. 13, sec. 8, as follows:

“ ‘For the safety of their passengers, common carriers are required to exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of their business.’ ”

In commenting on this text the court stated, “Expressing the elements of this rule in other terms, it imposes on carriers of passengers the highest degree of care that men of reasonable vigilance and foresight ordinarily exercise in the practical conduct of such business under the same or similar circumstances.” This rule was approved and explained in Ormond v. Wisconsin Power & Light Co. (1927), 194 Wis. 305, 216 N. W. 489, and as late as United States F. & G. Co. v. Milwaukee & S. T. Corp. (1962), 18 Wis. (2d) 1, 117 N. W. (2d) 708, this court approved the above-quoted language as a proper instruction to the jury. This expression of a rule of ordinary negligence is applied not to the usual duties of the general public but to the usual and normal duties of common carriers, which because of the nature of their business involve the higher degree of care.

Under this test of the common carrier’s duty we must affirm the jury’s finding of negligence. Because of the af-firmance of this issue, it is not necessary to discuss the plaintiff’s question raised on review that the case should have been submitted to the jury on the question of whether the safe-place statute also applied.

The defendant contends the amount of damages for the permanent injury is grossly excessive and for loss of wages to the date of trial is not supported' by the evidence. No question is raised- on the amount awarded for pain and suffering or medical expenses. The plaintiff received a linear fracture of the sacrum bone which healed normally. She discontinued treatment in November of 1960. Pain persisted, however, and her back gave her trouble. Dr. Gaenslen testified the plaintiff suffered a disability rated at three percent of the body. There was testimony the injury aggravated ' an arthritic condition and plaintiff would suffer from some pain in the future. ;

The plaintiff at the time of the injury was employed by Breithaupt Printing Company. While the evidence is somewhat confusing as to loss of work, it is at least that the plaintiff lost because of the accident 597^4 hours in 1960 amounting to $866.38, 83 hours in 1961 at a pay-scale rate resulting in the loss of $124.50, and in-1960 to the time of her retirement 49J4 hours or $76.72. The plaintiff testified she retired due to her inability to continue work. In June of 1962 she retired, went on social security but told her employer she would be available for work on a part-time basis and would work when needed. Upon retirement she made no claim for disability pension under social security. After retirement she did in fact work some 96 hours in 1962. It is quite obvious the award of $5,896 included almost a 100 percent loss of wages for work lost after the plaintiff retired and up to the time of trial although she was only three percent disabled and approximately sixty-four years of age. We believe this award to be excessive and cannot be sustained by the evidence. No medical testimony exists that her entire loss of wages after retirement or retirement itself was caused by the accident.

However, the award of $4,500 for permanent injury is within the reasonable bounds of the evidence. The court instructed the jury to consider in determining this item the future loss of wages, impairment of health, future pain and suffering, and other elements. Considering these various elements in to to, we cannot say an overall allowance of $4,500 is so excessive that it ought to be set aside as being unsupported by the evidence.

In respect to the award for loss of wages we consider this is a proper case in which to apply the Powers rule (Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393), as the verdict had the approval of the trial court. In our opinion the evidence for loss of wages did not exceed $3,000. As the defendant is entitled to a new trial on the issue of damages, we grant the option to the plaintiff to reduce the verdict by the sum of $2,896 and to accept judgment based on said modified verdict.

By the Court. — The judgment is reversed, and a new trial granted unless the plaintiff exercises the option within twenty days from the date this record is remitted to the trial court to reduce the verdict by the sum of $2,896 and to accept judgment based on said modified verdict; the defendant to have costs on this appeal.

Gordon, J., took no part.


author: Heffernan, J.

text:
    Ash Realty Corporation, Plaintiff and Appellant, v. City of Milwaukee, Defendant: Village of Brown Deer, Defendant and Respondent.

      September 2

      October 6, 1964.

      For the appellant there were briefs by Whyte, Hirschboeck, Minahan, Harding & Harland, attorneys, and Richard P. Buellesbach and Richard D. Silberman of counsel, all of Milwaukee, and oral argument by Mr. Buellesbach.

    For the respondent there was a brief and oral argument by Harold H. F.uhrman of Milwaukee.
    A brief amicus curiae was filed by Julian Bradbury of Madison, for the League of Wisconsin Municipalities.

       Motion for rehearing denied, with costs, on November 24, 1964.

   Heffernan, J.

Ash Realty’s complaint states that the tax was paid under protest to the village of Brown Deer and to Milwaukee and that the plaintiff is unable to determine respective claims of Brown Deer and Milwaukee. Ash Realty’s complaint states only what would constitute a cause of action under sec. 74.73 (1), Stats. That statute reads:

“Any person aggrieved by the levy and collection of any unlawful tax assessed against him may file a claim therefor against the town, city, or village, whether incorporated under general law or special charter, which collected such tax in the manner prescribed by law for filing claims in other cases, and if it shall appear that the tax for which such claim was filed or any part thereof is unlawful and that all conditions prescribed by law for the recovery of illegal taxes have been complied with, the proper town board, village board, or common council of any city, whether incorporated under general law or special charter, may allow and the proper town, city, or village treasurer shall pay such person the amount of such claim found to be illegal and excessive. If any town, city, or village shall fail or refuse to allow such claim, the claimant may have and maintain an action against the same for the recovery of all money so unlawfully levied and collected of him. Every such claim shall be filed; and every action to recover any money so paid shall be brought within one year after such payment and not thereafter.”

Ash Realty contends that it has alleged a common-law action to recover illegal taxes and that therefore the limitation is not the year set by sec. 74.73 (1), Stats., but a longer period as provided by appropriate sections of ch. 330, Stats. A review of the requirements of a common-law cause of action reveals that the complaint herein does not allege facts sufficient to constitute the common-law action. Under the doctrine of early cases of Powell v. Board of Supervisors (1879), 46 Wis. 210, 50 N. W. 1013, and Parcher v. Marathon County (1881), 52 Wis. 388, 9 N. W. 23, the common law prevailed that the taxpayer must allege that the tax was paid under a threatened or impending levy by the sheriff. In the Parcher Case, the plaintiff alleged: (1) That the tax was illegal; (2) that the sheriff threatened levy and sale, but that plaintiff intended to recover the same.

Referring to the requirements necessary to a common-law cause of action, this court has said:

“The rule formerly prevailed in Wisconsin that a mere payment of taxes under protest was not sufficient; that to entitle one to recover taxes paid under protest it must appear that the tax collector had done more than to merely notify the taxpayer that the tax roll is in his possession for collection, as was done in the case at bar.” Welch v. Oconomowoc (1928), 197 Wis. 173, 178, 221 N. W. 750.

By merely alleging that the taxes were paid under protest, Ash Realty fails to meet the requirements of the common-law cause of action. There must be evidence of compulsion, 64 C. J. S., Municipal Corporations, p. 828, sec. 2069b. Ash Realty made no allegation of threatening levy by the sheriff or the other elements that the common law requires. Ash Realty has only pleaded the allegations requisite to the statutory action described by sec. 74.73 (1), Stats.

It is apparent therefore that no common-law cause of action has been pleaded or now can be pleaded by the appellant.

Whatever rights it has are those that are conferred upon it by statute. The statute provides that “every action to recover any money so paid shall be brought within one year after such payment and not thereafter.” Appellant contends, however, that the annexation was wholly void and that any attempt to levy and collect a tax was a mere usurpation and that as to wholly void taxes, no statute of limitations is applicable.

We are in disagreement, at least insofar as this proposition would apply here; we cannot agree that the action of Brown Deer was a “mere usurpation” or that the annexation was wholly void in the sense intended by the appellant.

A review of the previous cases involving this annexation shows that substantial doubt did exist as to the true status of this property. By the appellant’s very pleading there is revealed the good-faith doubt whether its property was, at the time the tax was paid, in the city of Milwaukee or the village of Brown Deer. At one point in the proceedings an order had been entered enjoining the village of Brown Deer from exercising jurisdiction over the territory involved. Subsequently in Brown Deer v. Milwaukee (1956), 274 Wis. 50, 79 N. W. (2d) 340, this court affirmed, the vacation.of that order. It is clear from- the statements In the briefs of both counsel that during the period in question the village of Brown Deer did exercise municipal jurisdiction. It cannot be said that the annexation attempted by Brown Deer was void or unlawful in the sense that the appellant urges. It attempted an annexation that apparently would have been in all respects valid, if one of the corporate petitioners had taken the appropriate internal action to authorize its officers to sign the petition. Despite competing claims, what- Brown Deer attempted to do was lawful. The cases that appellant urges as precedent are of a different type. Trustees of Clinton Lodge v. Rock County (1937), 224 Wis. 168, 272 N. W. 5. To tax exempt property is unlawful in the.sense that the local government is attempting to do what the legislature has specifically forbidden. To attempt the annexation of noncontiguous property is unlawful in that.no substantive right had been conferred upon the municipality to annex other than contiguous territory. Smith v. Sherry (1880), 50 Wis. 210, 6 N. W. 561. By law noncontiguous property can under no circumstances be annexed, and any attempt to tax such property is void. Nor was the situation similar to that discussed in Smith v. Sherry (1882), 54 Wis. 114, 11 N. W. 465, where the action failed to follow legislative dictates by attempting annexation by an unpublished order. The court reasoned that such action, if allowed, would cause “interminable mistakes.” See also Knox v. Cleveland (1860), 13 Wis. 274 (*245), and Wisconsin Real Estate Co. v. Milwaukee (1912), 151 Wis. 198, 138 N. W. 642.

However, here a different situation exists. Brown Deer had the substantive right to attempt the annexation. It was through no unlawful act of Brown Deer, or of any overreaching of its delegated-powers that the annexation failed. What it attempted could have been legally done. We hold therefore that for 'the purpose of this situation, at least, the exercise of jurisdiction over the territory here involved was of colorable legality. This court recognized in Brown Deer v. Milwaukee (1956), 274 Wis. 50, 79 N. W. (2d) 340, that Brown Deer’s annexation had created an affinity between it and the residents of the area that gave rise to at least-a provisional governmental relationship. It is recognized that Brown Deer did render municipal services to the area involved during the years 1957, 1958, and 1959. Brown Deer did exercise jurisdiction over the area in those years. The government of the area during that time was the government given to it by Brown Deer.

The status of an annexation de jacto is recognized, 37 Am Jur., Municipal Corporations, p. 649, sec. 32. The elements required of a de jacto corporation are these: A valid statute, an organization in good faith, a colorable compliance with the statutes, and the assumption of corporate powers, 37 Am. Jur., Municipal Corporations, p. 630, sec. 11. All of these elements were present here. We hold that the tax was levied under the color of right, though all parties concerned knew that the annexation remained to be tested in the courts. Despite the fact that the dual payment of taxes to Milwaukee and Brown Deer showed the recognition of the eventual uncertainty of outcome, the taxpayer took not even the most elementary steps to protect itself. It now, after it has foreclosed itself from further rights against Milwaukee by failing to appeal from the order sustaining Milwaukee’s demurrer, is proceeding against Brown Deer for the recovery of taxes, though Brown Deer rendered the services during the period in question. While equity is sometimes available to succor the bewildered taxpayer, who may be caught in a thicket of intergovernmental litigation, we do not think it equitable to allow recoupment from Brown Deer which has rendered services to it.

Reference should be made to Town of Fond du Lac v. City of Fond du Lac (1963), 22 Wis. (2d) 525, 126 N. W. (2d) 206, for a discussion of the equitable powers of the trial court to afford relief from the uncertainty arising during the course of contested annexation proceedings. Although the appellant herein now finds itself in the unenviable position of being burdened by double taxation, it must be recognized that it failed to take prompt action on its own behalf although it was fully aware of the situation it faced.

Short statutes of limitation particularly where the financial structure of our government is concerned, are in the public interest. As stated in the brief filed amicus curiae, “Municipalities . . . need such legislative bulwarks against uncertainty as are provided by statutes of limitation on tax litigation under s. 74.73 (1)

The object of such a statute is to compel the prompt exercise of a right of action. This is particularly important in the assertion of a claim against a municipal corporation where terms of office are short and personnel is constantly changing.

Our court in an early case summed up the philosophy behind such statutes.

“Interest reipublicae ut sit finis litium. It is therefore the policy of the law that some reasonable lapse of time should end all controversies; . . . This is the philosophy of statutes of limitation. They are therefore called statutes of repose. They give possession rest from litigation. When they have run, they bar forever all previous rights. . . ; silence forever all objections against it and all criticisms upon it. The claims which would have prevailed over it before, become extinct. The defects which would have been fatal to it before, are cured. Whatever could have been heard to impeach it before, can be heard no more forever. So it is here. The respondents had their day to impeach the tax proceeding. . . . Then they might have said that the groundwork was so defective that there was no tax, . . . This they did not then do, and they are now too late to do it. They suffered the statute to purge the tax proceeding of all defects, to raise the tax deed above impeachment. ' Their objections may be well founded. But they come out of time. What the respondents might have said, they can not now say. The statute has left them like one estopped to speak the truth, because they did not speak it when they might.” Oconto County v. Jerrard (1879), 46 Wis. 317, 326, 50 N. W. 591.

By the Court. — Judgment affirmed.

Hallows and Beilfuss, JJ., dissent.


author: Per Curiam.

text:
    State ex rel. Sonneborn and others, Relators, v. Sylvester, County Clerk, and others, Respondents.

      October 21, 1964.

      The cause was submitted for the relators on the briefs of Foley, Sammond & Lardner, and James P. Brody, Marvin E. Klitsner, and Timothy C. Frautschi, all of Milwaukee, and for the respondents on the briefs of Harold J. Wollen-zien, corporation counsel of Waukesha county, and Quarles, Herriott & Clemons of Milwaukee.
   Per Curiam.

On May 28, 1964, a petition was filed alleging that sec. 59.03 (2), Stats., providing for the composition of boards of supervisors in all but two counties, offends against the Fourteenth amendment to the constitution of the United States because of the disproportion of representation among the districts represented. Petitioners asked leave to institute an original action in the name of the state, upon their relation, against the County Clerk of Waukesha county and the Board of Supervisors of that county, as well as other respondents. The relief to be sought would be an injunction, restraining respondents from carrying out elections of supervisors under sec. .59.03 (2), and mandamus, compelling the board to weigh the vote of each member in proportion to the population of his district and requiring future elections on a different basis.

The chief justice issued an order requiring respondents to show cause before this court why the petition'should not be granted. The petition and order were personally served on the individual respondents and on ■ the chairman of respondent board.

After oral argument and briefs, we issued an order June 10, 1964. We granted leave to commence an original action for a declaratory judgment and appropriate supplementary relief. We said;

“The original petition on file herein shall be deemed to: constitute the complaint in this matter and shall be deemed to constitute an application that this court declare sec. 59.03 (2), Stats., to be unconstitutional as applied to future elections of county boards in all counties of Wisconsin except Milwaukee and Menominee. ...
“Because of the vital nature of the duties and power of the county boards of the state and the importance of their ability to continue to function without. challenge to. the validity of their acts, and because it would not be equitable, just, or in the public interest to hold invalid, on the grounds here raised, any actions taken before the institution of this proceeding, or during its pendency, or during a reasonable time thereafter, this court now determines that if our judgment herein should declare invalid the provisions of sec. 59.03 (2), Stats., such declaration will expressly be limited to prospective effect only, after a date following .the entry of judgment and to be specified therein.
“The application for mandamus and for injunction as contained in the original petition and all questions relating to the relief which might be granted herein are reserved for subsequent consideration, if such matters shall become relevant.”

We also fixed a schedule for responsive pleadings and required petitioners to give notice to the county clerk of every county which might be affected.

Respondents County Clerk and County Board demurred to the complaint, asserting two grounds, numbered 1 (a) and 1 (b), challenging jurisdiction, and a further ground, that the complaint does not state facts sufficient to constitute a cause of action.

Ground 1 (a) asserts, in substance, that the court lacks jurisdiction over the persons of demurring respondents because no summons has been served upon them.

Ground 1 (b) asserts, in substance, that the court lacks jurisdiction over the subject matter because the constitution does not authorize an original action in this court for declaratory judgment.

1. Original jurisdiction to grant a declaratory judgment. The expanding view of the original jurisdiction of this court was expounded with care by Mr. Justice Wickhem in Petition of Heil in 1939. It was there said:

“We think it must follow from the later cases in this court that sec. 3, art. VII, of the constitution, contemplates that the supreme court exercise its judgment and discretion in taking jurisdiction of cases so importantly affecting the rights and liberties of the people of this state as to warrant such intervention.”

The scope of the jurisdiction of this court is limited only in those terms.

In several cases this court has exercised original jurisdiction over a justiciable controversy by entertaining an action for declaratory judgment.

In one of these cases, Petition of State ex rel. Attorney General, in 1936, parties raised the same objection now urged by demurring respondents, namely, that the constitution does not authorize an original action in this court for declaratory judgment and that the legislature could not enlarge the jurisdiction of this court by authorizing an action for declaratory judgment.

This court decided that its original jurisdiction could be exercised by means of an action for declaratory judgment. It was pointed out that when a justiciable controversy exists, an action for declaratory judgment simply brings the controversy before the court for resolution at an earlier stage than under traditional procedures. It was held that procedural changes in the law do not enlarge the jurisdiction of the court, and stated that, “It is the nature of the controversy presented by the petition which determines whether or not this court will take jurisdiction, not the procedure to be followed by the court after jurisdiction has been taken.” (P- 29.)

Demurring respondents urge that Petition of State ex rel. Attorney General be overruled, but we consider it sound.

We point out, also, that although we considered it appropriate that this matter be dealt with first in the form of an action for declaratory judgment, we reserved for subsequent consideration the application for mandamus and injunction and other questions as to the relief which might be granted.

2. Personal jurisdiction without service of summons. Demurring respondents argue that because no summons was served, this court obtained no jurisdiction over their persons in an action for declaratory judgment. They rely upon sec. 262.02 (1), Stats., providing that, “A civil action in a court of record is commenced by the service of a summons or an original writ.” They assert that this court is bound, at least in ah action for declaratory judgment, by all the provisions of Title XXV of the statutes, relating “to civil actions in the circuit courts and other courts of record, having concurrent jurisdiction therewith ...” The supreme court is a court of record, but is not ordinarily considered as having jurisdiction concurrent with the circuit court. Our power to entertain an action and exclude circuit courts from further proceedings therein has been referred to as an “excluding jurisdiction.” Many of the provisions of Title XXV would clearly be inappropriate for original actions in this court, and although some of the provisions of that title often will be relied on as a guide for orderly procedure here, we do not consider ourselves bound by them.

It has not been the practice in this court to issue or authorize the issuance of a summons in an action of which we take jurisdiction. In a 1944 decision it was pointed out that under the law of Wisconsin a summons is not a process, and that, “All proceedings and actions in the exercise of original jurisdiction of this court are instituted by an order to show cause.” It should be added that at times they are instituted by an alternative writ, or, rarely, by a notice of motion for leave. In 1930 this court issued a memorandum outlining the preferred practice in the exercise of our original jurisdiction. It was said that a party desiring to institute an original action should file a petition and “there should be served upon the opposite party a notice, together with a copy of the petition, stating when and where the petitioner will apply for leave of court to institute the action, ... If leave be granted, the complaint in the action should then be served upon the opposite party and the case proceed regularly according to the established rules of the court.”

It is apparent that no summons was required, and that the service which gave personal jurisdiction was the service of notice of application for leave. In the case now before us, personal jurisdiction was supplied by the service of an order to show cause why leave should not be granted. We consider that such personal jurisdiction suffices not only for our determination to take jurisdiction of the controversy described in the petition, but also for our determination of the procedure to be followed and for our ultimate adjudication. We saw no need for a separate complaint under the circumstances, and ordered that the petition, already served, should constitute the complaint.

The demurrer, insofar as it challenges jurisdiction of the subject matter and of the persons of these respondents, is overruled.

       230 Wis. 428, 445, 284 N. W. 42.

        Rules of Court Case (1931), 204 Wis. 501, 236 N. W. 717; Petition of Breidenbach (1934), 214 Wis. 54, 252 N. W. 366; State ex rel. Ekern v. Dammann (1934), 215 Wis. 394, 254 N. W. 759; State ex rel. Wisconsin Telephone Co. v. Henry (1935), 218 Wis. 302, 260 N. W. 486; State ex rel. La Follette v. Dammann (1936), 220 Wis. 17, 264 N. W. 627; Petition of State ex rel. Attorney General (1936), 220 Wis. 25, 264 N. W. 633; State ex rel. Martin v. Heil (1942), 242 Wis. 41, 7 N. W. (2d) 375; State ex rel. Frederick v. Zimmerman (1949), 254 Wis. 600, 37 N. W. (2d) 472, 37 N. W. (2d) 473; State ex rel. Zimmerman v. Carpenter
        (1949), 254 Wis. 619, 37 N. W. (2d) 469; State ex rel. Reuss v. Giessel (1952), 260 Wis. 524, 51 N. W. (2d) 547; State ex rel. Thomson v. Zimmerman (1953), 264 Wis. 644, 60 N. W. (2d) 416, 61 N. W. (2d) 300; State ex rel. Smith v. Zimmerman (1954), 266 Wis. 307, 63 N. W. (2d) 52; Columbia County v. Wisconsin Retirement Fund (1962), 17 Wis. (2d) 310, 116 N. W. (2d) 142; State ex rel. Thompson v. Gibson (1964), 22 Wis. (2d) 275, 125 N. W. (2d) 636; State ex rel. Reynolds v. Smith (1964), 22 Wis. (2d) 516, 126 N. W. (2d) 215.

       Sec. 260.01, Stats.

        Petition of Heil, supra, footnote 1, pages 445, 448.

         State ex rel. Walling v. Sullivan (1944), 245 Wis. 180, 189, 13 N. W. (2d) 550.

        In re Exercise of Original Jurisdiction (1930), 201 Wis. 123, 127, 128, 229 N. W. 643.


author: Gordon, J.

text:
    Cathey, Appellant, v. Industrial Commission, Defendant: Lambrecht Farms and another, Respondents.

      September 28

    October 27, 1964.

      For the appellant there was a brief and oral argument by H. R. George of Milwaukee.
    For the respondents there was a brief by Kivett & Kas-dorf, attorneys, and Clifford C, Kasdorf of counsel, all of Milwaukee, and oral argument by Clifford C. Kasdorf.

   Gordon, J.

This is Mr. Cathey’s second appeal to this court, and we are convinced that he is foreclosed as to his principal contentions on this appeal because the judgment on the previous appeal is res judicata. It is necessary that we review the development of this litigation.

Mr. Cathey claims to have been injured on April 2, 1958, while an employee of the defendant Lambrecht Farms. He made an application for compensation, and a hearing was held before an examiner of the Industrial Commission. The examiner’s decision, dated November 3, 1959, was adverse to Mr. Cathey. Mr. Cathey filed a petition for review, and on January 29, 1960, the Industrial Commission reversed the examiner’s decision. This order was appealed by the employer to the circuit court, and a judgment was entered, dated February 17, 1961, setting aside the award of the Industrial Commission; the case was remanded for a review of the transcript and “for such other action as the Industrial Commission may in its discretion decide.” The aforesaid judgment was appealed by Mr. Cathey to this court and was affirmed. Lambrecht Farms v. Industrial Comm. (1961), 15 Wis. (2d) 143, 111 N. W. (2d) 916.

Pursuant to that judgment, the Industrial Commission reviewed the record, including the transcript, and on December 27, 1961, it made an order dismissing the application. Mr. Cathey sought review of that order in the circuit court. On January 20, 1964, the circuit court entered a judgment which affirmed the commission’s order. It is the latter judgment which is now here on appeal.

In order to evaluate Mr. Cathey’s principal contentions on the instant appeal, we would be obliged to re-examine the correctness of our previous decision, and we decline to do this. Litigation must have an end. The doctrine of res judicata is applicable to bar a second examination of the merits of a controversy which has previously been decided.

, We will not re-examine the merits of those contentions of the appellant which were involved in the previous appeal. Our refusal to reconsider such claims is not, however, a studied assertion that we were correct three years ago when we originally decided the matter. Mr. Justice Robert H. Jackson put the concept in proper perspective when he said: “We are final not because we are infallible, but rather we are infallible because we are final.”

The appellant urges that the circuit court erred in its judgment of February 17, 1961, which judgment set aside the Industrial Commission’s award. The claim advanced by Mr. Cathey is that this judgment on the part of the circuit court violated sec. 102.23, Stats. However, this is the precise judgment which this court has already reviewed and affirmed. Mr. Cathey also argues that in reversing the commission the circuit court in 1961 erred in its assumption that the commission may not base its review on an examiner’s synopsis as opposed to the full transcript. This question, too, was considered upon the prior appeal.

Mr. Cathey further claims that he was denied his constitutional right to a hearing on the part of the Industrial Commission after the matter was remanded. In its previous opinion, this court expressly observed that the granting of a hearing was discretionary with the commission. The circuit court’s mandate, which we affirmed, did not require such a hearing. If Mr. Cathey considered our mandate to be in error, he was obliged to bring it to our attention in a motion for rehearing.

Mr. Cathey has already challenged the judgment of the circuit court on appeal and lost. Lambrecht Farms v. Industrial Comm. (1961), 15 Wis. (2d) 143, 111 N. W. (2d) 916. There was no rehearing, and the previous judgment is res judicata. This court has said on numerous occasions that a former decision of the supreme court in a cause is conclusive upon the parties and will not be reviewed on a subsequent appeal from other orders made by the circuit court in the same cause. Plesko v. Milwaukee (1963), 19 Wis. (2d) 210, 120 N. W. (2d) 130; Estate of Hill (1956), 272 Wis. 197, 75 N. W. (2d) 582.

Also, this court held in Lutien v. Kewaunee (1913), 151 Wis. 607, 609, 139 N. W. 312:

“All mere questions of law which were involved in the case before, whether thought of by counsel and argued or not, were foreclosed by the decision. A judgment is just as conclusive as to minor questions which would have turned the result either way according to their determination, as upon the major or ultimate proposition, whether more than inferentially presented or not.”

In State ex rel. Littig v. Superior Court (1939), 231 Wis. 58, 62, 285 N. W. 419, the court quoted Monahan v. Fairbanks-Morse Mfg. Co. (1912), 150 Wis. 512, 516, 137 N. W. 748, saying:

“A litigant ‘is concluded by the mandate of this court as to all matters actually presented or which might consistently with legal rules have been presented to this court upon appeal.’ ”

In Litzen v. Eggert (1941), 238 Wis. 121, 297 N. W. 382, it was held that upon entry of judgment, subsequent to the mandate of the supreme court for remand, the only question which can be reviewed on appeal is whether the judgment entered is in accordance with the mandate.

The circuit court judgment of February 17, 1961, which has been affirmed by this court, remanded the cause to the Industrial Commission to permit it to review its findings and to take such other action as it may in its discretion decide. The commission did just that; on December 27, 1961, the commission ordered that the application be dismissed, and this order was affirmed by the circuit court. There is ample evidence to support the commission’s findings of December 27, 1961, and, accordingly, the circuit court was correct in affirming the commission’s findings.

The appellant also urges that he was wronged by the failure of the attorney general to appear before the supreme court on his behalf at the first appeal. Sec. 102.64 (3), Stats., provides as follows:

“In any action to review an order or award of the commission, and upon any appeal therein to the supreme court, the attorney general shall appear on behalf of the commission, whether any other party defendant shall be represented or not, except that in actions brought by the state the governor shall appoint an attorney to appear on behalf of the commission.”

The command of the statute would appear to be mandatory. However, if the commission were to acquiesce in the trial court’s decision, it would seem obvious that no appearance would be required by the attorney general in the supreme court. On the other hand, if the commission desires that the appeal to the supreme court be pursued, the attorney general’s obligation under the statute would necessitate his appearance.

In any event, even if this statute had been violated by the attorney general in the instant case, it would be of no avail to Mr. Cathey because the holding in the previous appeal is res judicata. On the present appeal, the commission held against the employee, so his objection concerning the nonappearance of the attorney general can only logically relate to the previous appeal.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.