Opinion
September 10, 1959 —
October 6, 1959.
APPEAL from a judgment of the circuit court for Fond du Lac county: RUSSELL E. HANSON, Circuit Judge. Affirmed.
For the appellant there was a brief by Edgarton Hobbs of Fond du Lac, and oral argument by Allan Edgarton.
For the respondents there was a brief and oral argument by George J. Laird of Fond du Lac, for Joseph Krenn, and by S. Richard Heath of Fond du Lac, for Fond du Lac county.
Quo warranto action in which the relief sought is a judgment that defendant Krenn be adjudged guilty of usurping, intruding into, and unlawfully holding the office of register of deeds of Fond du Lac county, and that he be excluded from the same and the privileges and franchises thereof; that the relator Brunkhorst be entitled to have, hold, and exercise said office; and that the defendant Fond du Lac county restore the name of Brunkhorst to the payroll of said county and that the county otherwise recognize that said office is rightfully held by Brunkhorst. Issue was joined by the serving and filing of answers by the two defendants and the matter was submitted to the trial court upon stipulated facts, of which the following is a summary:
That Brunkhorst was born March 8, 1875, and was elected register of deeds of Fond du Lac county for a term commencing in January, 1921, and was re-elected as such register of deeds at each general election thereafter, including the election held in November, 1958;
That on the 12th day of September, 1945, the county elected to come under the provisions of the Wisconsin municipal retirement fund, as provided in sec. 66.90, Stats., then in effect; that the executive director of the Wisconsin municipal retirement fund requested an opinion of the attorney general to enable elected county officers of the 19 counties then under the retirement fund to determine whether they wished to elect to come under the act and that said opinion was issued January 30, 1946, and appears in 35 Op. Atty. Gen. 21 ; that on February 25, 1946, a letter was written by the county clerk of Fond du Lac county to the retirement fund seeking additional information to enable Brunkhorst to determine whether to elect to come under the retirement fund; that on March 25, 1946, the county clerk was notified by the retirement fund that according to preliminary estimates it appeared that Brunkhorst could continue working for another ten years before he reached the minimum retirement pay and before he would require authorization by the county board to continue in his office; that on March 27, 1946, Brunkhorst elected to participate in the municipal retirement system and notice of such election was acknowledged by the retirement fund by letter dated April 1, 1946;
That on or about July 23, 1957, the county was notified by the retirement fund that Brunkhorst's credits would provide an annuity in excess of 25 per cent of his final rate of earnings and that an extension of employment would have to be obtained to permit him to continue in office; that on August 21, 1957, a resolution was adopted by the county board authorizing Brunkhorst to continue in office until the end of his current term as register of deeds; that on November 13, 1958, the county board adopted a resolution stating that Brunkhorst be refused permission to continue in the employment of the county beyond the 31st day of December, 1958; that on December 30, 1958, the county clerk sent Brunkhorst a letter containing a copy of said resolution;
That on December 30, 1958, Brunkhorst wrote a letter to the retirement fund and to the county clerk notifying the fund of his election to withdraw therefrom; that on December 31, 1958, the county clerk sent to the retirement fund a notice of termination of employment of Brunkhorst on a form provided by the fund; that on January 5, 1959, the executive director of the fund wrote Brunkhorst and the county clerk a letter in which he stated that Brunkhorst's withdrawal was ineffective because in conflict with the provisions of a statute cited in the letter; that on January 20, 1959, the county board tabled a resolution that would have authorized Brunkhorst to continue in office to the end of his current term;
That from the date of his election to be a member of the retirement fund until the 1st day of January, 1959, Brunkhorst continually paid into said fund the amounts required of him by law as a participant therein and received all prior-service credits to which he was entitled under the provisions of the statute; that in September, 1953, participating employees under the Wisconsin retirement fund came under the Federal Social Security Act as of January 1, 1951, by virtue of an act of congress; that had Brunkhorst not elected to come under the terms of the retirement fund he would not have been eligible for social-security benefits; that because of such election Brunkhorst received monthly social-security checks commencing October 1, 1952, and is continuing to receive such checks;
That on the first Monday of January, 1959, Brunkhorst qualified for the office of register of deeds by receiving a certificate of election from the county clerk and taking and filing his official oath and filing his bond; that the premium on said bond was paid by Brunkhorst out of his personal funds;
That on February 27, 1959, the governor of the state of Wisconsin appointed the defendant Krenn as register of deeds of Fond du Lac county and on the 2d day of March, 1959, Krenn filed and took his oath of office, executed the required bond, and entered upon the duties of said office. The trial court adopted the stipulated facts as its findings of fact and found conclusions of law of which the following is a summary:
That Brunkhorst has waived all right to challenge the constitutionality of any statute involved, particularly the statutes relating to the Wisconsin retirement fund; that having elected to come under the provisions thereof and having accepted benefits thereunder Brunkhorst cannot effectively withdraw therefrom and escape the compulsory-retirement provisions thereof; that Brunkhorst was retired from office at the expiration of the period designated in the last certification for continuance in office as set forth in the resolution of the county board on August 21, 1957, which was midnight January 4, 1959; that by reason of such compulsory retirement a vacancy existed in the office of the register of deeds of Fond du Lac county commencing January 5, 1959; that the appointment of the defendant Krenn to the office of register of deeds of said county by the governor was a legal appointment to fill an existing vacancy; that from and after the 2d day of March, 1959, the date Krenn qualified for the office, Krenn has been and is the legally appointed and de jure register of deeds of said county for a term ending the first Monday in January, 1961; that Brunkhorst has not been eligible to hold said office since the 5th day of January, 1959, but until the appointment and qualification of Krenn he performed the duties of the off ice as a de facto officer and was entitled to compensation during such time.
Judgment was entered accordingly on April 8, 1959, and Brunkhorst appealed.
The appellant does not challenge directly the rule that one who voluntarily claims and enjoys the benefits and privileges of a statute cannot be heard thereafter to say that the statute, is unconstitutional in order to escape its burdens. Will of Bowman, 2 Wis.2d 404, 86 N.W.2d 442; Thomson v. Public Service Comm. 236 Wis. 157, 294 N.W. 517; Booth Fisheries Co. v. Industrial Comm. 185 Wis. 127, 200 N.W. 775. Instead, he contends that there is an exception to the rule and that it does not apply to an independent and separable provision of the act under which he accepted and enjoyed benefits. He also contends that certain language in the Retirement Act is ambiguous and that he is not precluded from contending that the statute is being unconstitutionally used. In other words, that he can urge a construction of the ambiguous language that will permit a constitutional use thereof. He does not point out what portion of the Wisconsin Retirement Act he claims is an independent and separable provision, and the portions thereof which he asks to have construed in his favor deal with compulsory retirement and his right of withdrawal of his election to be included under the fund. These provisions are basic provisions of the act and are not independent and separable parts thereof. In fact the object of the act is to promote efficiency in public service by providing an orderly means by which persons therein who become aged or otherwise incapacitated may be retired from active service.
The appellant challenges the conclusions of law of the trial court that he was retired from office at midnight January 4, 1959, by virtue of the statute and that by reason of such compulsory retirement a vacancy existed in said office commencing January 5, 1959. He contends that an elected county officer can only be removed by the governor for cause and following a hearing under the provisions of sec. 4, art. VI, Const. He contends further that vacancies in an elective county office can only be caused by one of the provisions of sec. 17.03 or sec. 17.09, Stats.
The trial court determined that a vacancy in the office of the register of deeds of Fond du Lac county resulted from the provisions of sec. 17.03(10), Stats. This subsection provides that any public office shall become vacant "on the happening of any other event which is declared by any special provision of law to create a vacancy."
By the provisions of sec. 66.901, Stats., an elective official is defined as a municipal employee only when such elected person shall request in writing that he be included within the provisions of the act. That section further provides that any elected person included therein at his request shall be subject to the compulsory-retirement provisions of sec. 66.906. The last-mentioned section provides that any participating employee who attains the age of sixty-five shall be retired at the end of the month in which such age is attained unless written notice is received by the board of trustees of the fund certifying that the governing body of the municipality by which he is employed has specifically authorized him to continue until the end of his current term, in which event he shall be retired at the expiration of the period designated in the last certification for such continuance on file with the board.
The appellant contends that these provisions are ambiguous in that the language merely provides that such employee "shall be retired;" that nowhere in the Retirement Act is there language that says specifically the elected employee is removed from office, that a vacancy in an elected office automatically occurs, or that an elected employee is automatically disqualified then and subsequently to hold office under a new term. In its memorandum decision the trial court treated that argument as follows:
"Under these circumstances, by virtue of the statutes herein involved, and particularly by virtue of the fact that Brunkhorst was over sixty-five years of age and had voluntarily elected (1946) to come under the provisions of the Wisconsin Retirement Act, that the provisions of the statute were binding upon him; and that by virtue of the fact that the county board had not taken positive action wherein they gave their consent that Brunkhorst be permitted to continue as an employee of Fond du Lac county for a term commencing January 5, 1959, that Brunkhorst became ineligible to fill the office of register of deeds commencing January 5, 1959; and that as a result, in the eyes of the law, a vacancy existed in said office, but that Brunkhorst continued to serve as register of deeds in a de facto capacity as an officer holding over after the expiration of his term, and that he was entitled to compensation therefor up to the time when the appointee to the office, Krenn, became register of deeds on March 2, 1959. . . .
"It has been urged that even though Brunkhorst is legally required to retire from county employment under the retirement statute, still no vacancy exists within the meaning of sec. 17.03 inasmuch as no reference is made to the word vacancy' in the retirement law.
"The word `vacancy,' as applied to an office, has no technical meaning. It is vacant in the eyes of the law whenever it is unoccupied by a legally qualified incumbent who has the lawful right to continue until the happening of some future event. State ex rel. Martin v. Ekern, 228 Wis. 645.
"Our supreme court has held, without referring to any special statute using the word `vacancy,' that a vacancy may be created in a public office by the election of an ineligible candidate. State ex rel. Bancroft v. Frear, 144 Wis. 79; State ex rel. McKeever v. Cameron, 179 Wis. 405.
"If the retirement of an employee or a public officer is mandatory upon the happening of certain circumstances, it must logically follow that upon the happening of those same circumstances there is a vacancy in the office occupied by him. When the circumstances come to pass which invoke mandatory retirement, there must be a vacancy in the office concerned within the purview of sec. 17.03 of the statutes."
We agree with the decision by the trial judge on that issue.
The appellant further contends that his withdrawal of his election to be included under the fund as of the close of his term on January 4, 1959, was effective. The stipulation of facts indicates that at the time the appellant elected to come under the provisions of the fund and to receive the benefits provided therein, the attorney general of Wisconsin had ruled that an elected county official who is included within the Wisconsin municipal retirement fund at his own request cannot later withdraw therefrom, 35 Op. Atty. Gen. 21, and that on March 25, 1946, the county clerk was notified by the retirement fund that appellant could continue working for another ten years before he reached the minimum retirement pay and before he would require authorization by the county board to continue in his office. He knew when he decided to accept the benefits of the act of the compulsory-retirement provisions and that he would be unable later to withdraw therefrom.
Again, the appellant argues that the legislature could have used more explicit language and could have stated that such election should be irrevocable. He points out in his brief that several amendments have been made to the act; that appellant filed his election to come under the act as it appeared in 1946 and that the legislature might have made changes detrimental to him and that therefore he should have a right to withdraw. It might be added that in two other opinions of the attorney general, 41 Op. Atty. Gen. 383, and 48 Op. Atty. Gen. 23, that official ruled that once an election has been made under the Retirement Act there can be no withdrawal.
Both the attorney general and the trial court relied to some extent on the case of Williams v. Contributory Retirement Appeal Board, 304 Mass. 601, 24 N.E.2d 525, in which it was held that a county official who was elected before the retirement system became operative and who voluntarily applied for membership therein could not withdraw from the system and resist subsequent involuntary retirement on the ground that his elective term had not yet expired. Reference was made therein to other Massachusetts cases. In passing, we might add that the appellant wished to retain all of the benefits that had accrued up to the end of his term in January, 1959.
In our opinion the trial court's construction of the statutes involved was correct. That construction is in harmony with the subject matter and the general purpose and object of the Retirement Act. It is consistent with the legislative intent and provides a practical and workable basis. The construction urged by the appellant would nullify the purpose and effect of the statute and would be contrary to the intent of the legislature as we interpret it. In addition the board of trustees of the fund, which is charged with its administration, has so construed it with the advice of the attorney general. This practical construction long continued is of great weight in determining the meaning thereof.
From the stipulated facts it appears that appellant was well advised before he made his election and that he elected to receive the benefits of the act with his eyes open. The choice was entirely his own and he does not contend otherwise.
Following his election in November, 1958, the appellant was faced with a dilemma. He must obtain affirmative action by the county board authorizing him to continue in office for the term to which he was elected. It is evident that he tried, but on November 13, 1958, the county board adopted a resolution stating that he be refused permission to continue. On January 20, 1959, he again attempted to get affirmative action from the county board without success.
There is an argument in the briefs as to whether this affirmative action by the county board would have to be taken before the new term started or after January 5, 1959. We agree with the trial court that a vacancy existed in the office on January 5, 1959. The only practical construction of the language is that the county board could have acted prior to the beginning of the new term.
The appellant might have sought legislative relief at any time after he elected to come under the act. He can point to no change in the statute nor to any amendment of the constitution adopted thereafter that provides an escape from the compulsory-retirement provisions thereof or that permits him to withdraw.
Other arguments are made by the appellant, such as the sacred right of electors and the privilege of citizens to hold public office, and the unlawful delegation to a mere majority of a county board to remove an elected public official. We have carefully reviewed all of the arguments advanced but have discussed only those determinative of the real issues in this controversy. In our opinion the learned trial judge in his lengthy and carefully prepared memorandum decision has effectively dealt with each of the issues presented by the stipulated facts.
By the Court. — Judgment affirmed.