State ex rel. Esser v. McBride

Citation254 N.W. 657,215 Wis. 574
PartiesSTATE EX REL. ESSER v. MCBRIDE ET AL.
Decision Date01 May 1934
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Milwaukee County; John J. Gregory, Circuit Judge.

Petition by the State, on the relation of Theodore P. Esser, for a writ of certiorari to review an order of Peter A. McBride and others, constituting the Milwaukee County Civil Service Commission, that relator be permanently discharged from his employment as financial investigator by the Milwaukee County Department of Outdoor Relief. From a judgment reversing the order, the Commissioners appeal.--[By Editorial Staff.]

Reversed.

Certiorari. Writ issued April 12, 1933. Relator, prior to December, 1932, was employed as “financial investigator” by the Milwaukee County Department of Outdoor Relief. Charges having been duly filed, on December 13, 1932, after due notice to the relator, a hearing was held before the Milwaukee County Civil Service Commission, pursuant to section 16.38, Stats., for the purpose of determining whether relator, because of the manner in which he had conducted his office of employment, should be discharged therefrom. Relator was not represented by counsel and, as subsequently found by the trial court, made no request to be so represented. After considerable testimony introduced by both sides, the commission found that relator's work had been unsatisfactory, inadequately performed, and inefficient, that his retention as an employee of the Outdoor Relief was inconsistent with the economic and efficient conduct of said department, and ordered his permanent discharge from such employment. Thereafter, on April 12, 1933, relator petitioned the circuit court for Milwaukee county for a writ of certiorari, alleging:

“That by all the testimony and proofs submitted, it has not been sufficiently established by clear and convincing evidence that your relator was incompetent and his work unsatisfactory during his employment as financial investigator; that the evidence submitted to defendants was insufficient to warrant a finding by the said defendants that your relator was incompetent and unable to efficiently carry out the duties of a financial investigator and not warranting the discharge of said relator, and that the act of the defendants in so discharging this relator is irregular, erroneous, illegal, void, unreasonable, arbitrary, unwarranted, contrary to the evidenceand contrary to law and without authority.

That the request of your relator to be represented by counsel at said hearing was denied, although the commission was at such hearing, duly represented by counsel, and that this act of the defendants in denying said request for counsel is irregular, erroneous, illegal, void and contrary to law in such cases provided.”

A motion by the defendant commission to quash the writ was heard on September 23, 1933. This motion was denied on November 18, 1933, the court holding that it was prejudicial error to allow witnesses to make statements without first being put under oath; that there was no credible evidence to support the findings of the commission; and that “the record does not show any standard or grade adopted by the commission; hence it is impossible, from a mere inspection of the record, to determine whether Esser's work in fact came up to any standard.” The circuit court denied defendant's motion to quash the writ and on December 1, 1933, entered a judgment holding that the action of the commission in discharging the relator was illegal and without jurisdiction, and reversed the action of the commission. From this judgment the defendant appeals.

Wm. A. Zabel, Dist. Atty., O. L. O'Boyle, Corp. Counsel, and Clark J. A. Hazelwood, Asst. Corp. Counsel, all of Milwaukee, for appellants.

Carroll & Thekan, of Milwaukee (Ervin Levenson, of Milwaukee, of counsel), for respondent.

Herbert W. Cornell, of Milwaukee, amicus curiæ.

FAIRCHILD, Justice.

[1] Charges against petitioner were filed by his superior officer with the Civil Service Commission of Milwaukee County. Due notice was given and a hearing was had. The commission sustained the charges and adjudged that the petitioner be permanently discharged as of November 30, 1932, from employment in the service of the Milwaukee County Department of Outdoor Relief as a financial investigator. The court below reviewed the matter, set aside the decision of the commission, and ordered the reinstatement of petitioner to the position of financial investigator. This appeal presents only questions relating to whether the respondents, as commissioners constituting the Milwaukee Civil Service Commission, acted within the law creating that body and fixing its duties. If it did so act, no occasion can exist for the interference of a court. State ex rel. N. C. Foster L. Co. v. Williams, 123 Wis. 61, 100 N. W. 1048;State ex rel. Bluemound Amusement Park v. Mayor, 207 Wis. 199, 240 N. W. 847, 79 A. L. R. 281;Hopkins v. Ames, 344 Ill. 527, 176 N. E. 729.

When a proper complaint is made to the commission, time and place for a hearing are to be appointed, notice given, and after the hearing the commission is to determine whether or not the charge is well founded, “and shall take such action by way of suspension, demotion, discharge or reinstatement, as it may deem requisite and proper under the circumstances and as its rules may provide.” Section 16.38, Stats.

The petition on which relator challenged the proceedings of the commission seeks a review of the sufficiency of the evidence on which the findings of the commission were based. It is not claimed that the commission acted without evidence, but that “the evidence submitted * * * was insufficient to warrant a finding * * * that relator was incompetent and unable to efficiently carry out the duties * * *, and that the act of the defendants in so discharging this relator is irregular, erroneous, illegal, void, unreasonable, arbitrary, unwarranted, contrary to the evidence and contrary to law and without authority.” The trial court reviewed the record, and, having reached the conclusion that “the evidence bearing upon Mr. Esser's alleged incompetency and inefficiency does not warrant his discharge,” denied the motion of the commission to quash the writ and ordered Esser's...

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4 cases
  • State ex rel. Baranowski v. Koszewski
    • United States
    • United States State Supreme Court of Wisconsin
    • 18 Noviembre 1947
    ...515, 33 Am.St.Rep. 50.’ Although the case is not in point some recognition of this principle will also be found in State ex rel. Esser v. McBride, 215 Wis. 574, 254 N.W. 657. Fairly construed, we consider that sec. 16.38, Stats. requires the civil service commission to act upon written char......
  • Jenkins v. Curry
    • United States
    • United States State Supreme Court of Florida
    • 20 Junio 1944
    ...... cause. See State ex rel. Esser v. McBride, 215 Wis. 574, 254 N.W. 657. Doubtless his ......
  • State ex rel. Irany v. Milwaukee County Civil Service Commission
    • United States
    • United States State Supreme Court of Wisconsin
    • 27 Noviembre 1962
    ...are the 'charges' referred to in subsection (1) relating to 'suspension, demotion or dismissal.' In State ex rel. Esser v. McBride (1934), 215 Wis. 574, 577, 254 N.W. 657, 658, this court stated, with reference to what is now sec. 63.10, 'When a proper complaint is made to the commission, t......
  • Jabs v. State Bd. of Personnel
    • United States
    • United States State Supreme Court of Wisconsin
    • 14 Marzo 1967
    ...'The civil service law has in view not only security of tenure, but efficiency of service as well.' See also State ex rel Esser v. McBride (1934), 215 Wis. 574, 578, 254 N.W. 657. We fully recognize that Mrs. Jabs' absence was not wilful or frivolous. Also, as a new employee doing domestic ......

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