State ex rel. Hamilton v. Krez
| Decision Date | 25 May 1894 |
| Citation | 59 N.W. 593,88 Wis. 135 |
| Parties | STATE EX REL. HAMILTON v. KREZ. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.
Quo warranto by Charles H. Hamilton, at the relation of the state, against Conrad Krez, to try title to the office of city attorney of Milwaukee. There was judgment for relator, and defendant appeals. Affirmed.
This is an action of quo warranto, commenced in the circuit court, to try the right of the relator to the office of city attorney of the city of Milwaukee. Until the 2d day of March, 1889, the term of the office of city attorney of the city of Milwaukee was fixed by law at two years. The then current term would expire on the third Tuesday of April, 1890. On March 2, 1889, chapter 35 of the Laws of 1889 was published. By the fourth section of that act it is enacted: “The term of office of the city attorney of the city of Milwaukee shall be four years, and the term of the present incumbent of that office is hereby extended to the third Tuesday in April, 1892.” Nevertheless, a successor to the then incumbent of that office was elected at the next municipal election on the first Tuesday of April, 1890, who qualified and exercised the office without question. At the time of the municipal election in 1892, the office of city attorney was vacant, and the appellant was elected to fill the vacancy. At the municipal election on the first Tuesday of April, 1894, the relator was elected to the office of city attorney, and qualified. The appellant refused to surrender the office to him. The appellant's claim is that chapter 35 of the Laws of 1889 was valid to extend the term then current, so that that term did not expire until the third Tuesday of April, 1892, when a new term of four years began; that while, in form, he was elected to fill a vacancy, he was really elected to a full term of four years, which will not expire until the third Tuesday in April, 1896, so that there could be no valid election to fill that office at the municipal election held in April, 1894. On these grounds he claims that the relator's claim to the office fails. On the part of the relator it is claimed that chapter 35, Laws 1889, so far as it attempted to extend the term of office of the then incumbent, is unconstitutional and inoperative. There was judgment for the relator, from which the appeal is taken.Conrad Krez, in pro. per.
W. H. Timlin, for respondent.
NEWMAN, J. (after stating the facts).
No question is made of the power of the legislature to change the term of the office of city attorney of the city of Milwaukee, so as to make it a term of four years, instead of a term of two years, as theretofore. The debate is upon the question of the power of the legislature to extend the term of office of the then incumbent of the office from two years to four years. The constitution of the state (article 13, § 9) provides: “All city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and villages, or some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose.” The words of the provision are so plain, and its intention is so obvious, that it does not seem to admit of construction. The idea which the words express on their face is the law. All city officers must be elected by the electors of the city, or they must be appointed by some officer or other authority of the city which has been theretofore designated by the legislature for that purpose. This is the only constitutional source of title to a city office. If the legislature shall have failed to designate some officer or authority of the city to make such appointment, then all city officers must be elected by the electors. It is plain, therefore, that this provision takes from the legislature the power to appoint any city officer. An act of the legislature which should attempt to appoint such an officer would be in disobedience of the constitution, and void. The office of city attorneyexisted before the constitution was enacted. It has not been created since. The territorial charter of the city of...
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