85 N.W. 327 (Wis. 1901), O'Connor v. City of Fond Du Lac

Citation:85 N.W. 327, 109 Wis. 253
Opinion Judge:ROUJET D. MARSHALL, J.
Party Name:O'CONNOR, Respondent, v. CITY OF FOND DU LAC, Appellant
Attorney:For the appellant there was a brief by O. H. Ecke, city attorney, and Maurice McKenna and Edward W. Phelps, of counsel, and oral argument by Mr. McKenna. Edward S. Bragg, of counsel, for the respondent.
Case Date:February 26, 1901
Court:Supreme Court of Wisconsin

Page 327

85 N.W. 327 (Wis. 1901)

109 Wis. 253

O'CONNOR, Respondent,



Supreme Court of Wisconsin

February 26, 1901

Argued February 2, 1901.

APPEAL from a judgment of the circuit court for Fond du Lac county: MICHAEL KIRWAN, Circuit Judge. Reversed.

Action to recover for services rendered defendant as chief of police. Plaintiff was elected such chief May 1, 1896, for the year ending May 1, 1897, and till his successor should be legally elected and qualified, the salary of the office being fixed at $ 50 per month, payable monthly. He qualified for the office and performed its duties till excluded therefrom as hereafter mentioned. April 17, 1897, an act of the legislature, known as chapter 247 of the General Laws of 1897, was duly published. It provided, among other things, as follows:

In cities of the third class, to which defendant belonged, a board of police and fire commissioners, consisting of four citizens, shall be appointed, in a manner indicated, before the first Monday of May, 1897, one to hold his office for the term of one year, one for two years, one for three years, and one for four years, from the said first Monday of May following, and until his successor should be appointed and qualified. No person shall be appointed to any position on the police force or in the fire department in any such city except with the approval of said board, after said act goes into effect. Said board shall, as soon as practicable, prepare and adopt rules and regulations governing the selection and appointment of persons to be employed on the police force and in the fire department of any such city. Whenever the term of office of any chief of police or chief engineer of a fire department heretofore appointed or elected in any such city shall expire after the act goes into effect, and before the board of police and fire commissioners shall have adopted the necessary rules and regulations with reference to the appointment of police officers, or when any such officer is holding over at the time the act goes into effect, such officer shall hold his office until his successor shall have been duly appointed in accordance with the rules and regulations of the board. All other members of the police force in any such city, at the time the act goes into effect, shall hold their respective positions for six months from the date when the rules and regulations adopted by the board shall go into effect, and thereafter under certain specified conditions.

The act further provided for the suspension of police officers by the board of police commissioners under certain circumstances.

In defendant city, prior to May 1, 1897, a board of police commissioners was duly appointed, and the members thereof duly qualified, and on the first Monday of May, 1897, entered upon the duties of their offices. About May 24th, thereafter, said board, in compliance with said act, promulgated its rules for the appointment of members of the police department of the city and other employees and officers affected by said act. In April, 1897, the common council of the city appointed Thomas McGrath chief of police thereof for the year commencing May 1, 1897. He took the oath of office of such chief April 17, 1897, and filed such oath and his official bond with the clerk of said city. Such bond was not presented to or approved by the council of the city until April 22, 1897. On May 1, 1897, defendant caused plaintiff to be excluded from the office of chief of police upon the pretense that his term of office expired on that day and that said McGrath was entitled to enter upon the duties thereof. From the time of such exclusion until November 1st thereafter plaintiff held himself in readiness to perform the duties of chief of police of said city, and offered to perform such duties, but was not allowed to do so. At the end of each month during said period, plaintiff in due form of law made his claim against the city for $ 50 as salary of chief of police of said city, all of which claims were rejected by the common council thereof. Plaintiff was never removed from his office by the said board of police commissioners, or displaced by any other person under its rules and regulations.

The pleadings raised merely the issue of whether the city of Fond du Lac was indebted to plaintiff for salary of chief of police for the six months subsequent to May 1, 1897. There was no dispute but that the facts were as above stated. The court found, as a matter of law, that plaintiff was chief of police of the defendant when the act of 1897 went into effect, and was entitled to hold said office till November 1st thereafter, since he was not removed or displaced by the board of police and fire commissioners; that his exclusion from the office was wrongful, and that he was entitled to recover the salary of the office claimed. Judgment was rendered accordingly.

Reversed and cause remanded.

For the appellant there was a brief by O. H. Ecke, city attorney, and Maurice McKenna and Edward W. Phelps, of counsel, and oral argument by Mr. McKenna. To the point that ch. 247, Laws of 1897, is invalid so far as it extends the term of office of the chief of police, they cited sec. 9, art. XIII, Const.; Cole v. Black River Falls, 57 Wis. 110; State ex rel. Hamilton v. Krez, 88 Wis. 135; People ex rel. Lord v. Crooks, 53 N.Y. 648; People ex rel. Williamson v. McKinney, 52 N.Y. 374, 383; People ex rel. Fowler v. Bull, 46 N.Y. 57, 61-63; State ex rel. Perry v. Arrington, 18 Nev. 421, 424; People ex rel. Brown v. Woodruff, 32 N.Y. 355; Chicago & N.W. R. Co. v. Langlade Co. 56 Wis. 614.

Edward S. Bragg, of counsel, for the respondent.


Page 328

[109 Wis. 257] ROUJET D. MARSHALL, J.

Sec. 5 of subch. XVIII of the city charter of the appellant

Page 329

provides as follows:

"No action shall lie or be maintained against the city of Fond du Lac on contract until the claimant shall have presented to the common council, a statement of the claim and the amount thereof, and the circumstances out of which it arose, duly verified on the oath of the claimant, and the council shall have allowed a regular meeting to pass without an adjustment with the claimant of such claim or demand." Laws of 1883, ch. 152.

The complaint does not show that such charter condition to the maintenance of this action exists. No objection was taken by appellant on that ground, either by answer or demurrer. The record does not show that evidence of the existence of such condition was produced. The point is now made that such situation is fatal to the judgment, the following cases being cited in support thereof: Stocks v. Sheboygan, 42 Wis. 315; Hill v. Fond du Lac, 56 Wis. 242, 14 N.W. 25; Kelley v. Madison, 43 Wis. 638; Weed & G. Mfg. Co. v. Whitcomb, 101 Wis. 226, 77 N.W. 175. Stocks v. Sheboygan is unlike this case, because there the question of the existence of the condition was raised by demurrer. In Hill v. Fond du Lac, the question here raised was not involved, because the action sounded in tort and was held not to be included in the charter provision. Kelley v. Madison is unlike this case for two reasons: first, because the question was raised by a demurrer to the complaint; second, because it was held that the action was one sounding in tort and not affected by the charter provision against the maintenance of an action on a claim or...

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