O'Connor v. City of Fond Du Lac

Citation85 N.W. 327,109 Wis. 253
PartiesO'CONNOR v. CITY OF FOND DU LAC.
Decision Date26 February 1901
CourtUnited States State Supreme Court of Wisconsin
OPINION TEXT STARTS HERE
Syllabus by the Judge.

1. Failure to perform a condition precedent to the existence of a right, as that prescribed by section 1339, Rev. St. 1898, prevents the requirement thereof, and may be insisted upon at any stage of judicial proceedings in respect thereto.

2. Failure to perform a condition of the use of a judicial remedy to enforce a right having no dependence thereon for its existence--such as the condition requisite to the continued existence of a claim against a railway for the negligent killing of stock by a railway train, or damages for the negligent setting of fires by a locomotive engine, under section 1816b, Rev. St. 1898--is waived if objection is not taken by answer or demurrer, the statute, to all intents and purposes, being a statute of limitations and governed as such.

3. Failure to perform a statutory condition precedent to the commencement of an action--as one that no action shall be commenced to enforce a city liability until notice shall have been given of the existence thereof and the common council of the city have had an opportunity to pass upon the same--has the same effect as failure to comply with a statute of limitations. It is in the nature of such a statute, though failure to comply with it may only abate the action if objection be taken by answer or demurrer. If not so taken, the objection is waived.

4. The words “from and after,” used in a statute in regard to time, are ordinarily held to signify exclusion of the day from which reckoning is to be made; and such meaning should prevail in the absence of some clear legislative intent to the contrary.

5. Publication of an act of the legislature prior to its taking effect, being for the purpose of enabling persons affected to shape their course accordingly, a provision therefor in the form, the act shall take effect from and after publication thereof, is consistent with such words being used exclusively and inconsistent with their being otherwise used.

6. Chapter 247, Laws 1897, which attempted to extend the term of office of the chief of police in the defendant city, among other such corporations, beyond the term for which he was specifically elected, if valid, entitled him to hold such place and receive the emoluments thereof till succeeded by a person appointed to his place under such act.

7. Section 9, art. 13, of the constitution, prohibits the legislature from interfering in any way with the question of what person shall hold any office in any city in this state of a character known at the time of the adoption of the constitution, whether then known by the same name as subsequently or not, and limits all power in that regard to the electors of the particular locality interested, to be exercised directly or by some municipal agency selected directly or indirectly by them.

8. City governments, at the time of the adoption of the constitution, commonly included a police department, and all offices pertaining thereto, whether now known by the names they bore prior to such adoption or not, must be considered as in the class which the constitution expressly declares must be filled by election by the electors of the particular localities interested, or by appointment by such authority of such localities as the legislature shall designate.

9. The idea expressed in the constitution is not that all officers of towns, cities and villages whose election is not provided for in the constitutionmay be elected or appointed in such manner as the legislature may deem best, but that all officers corresponding to town, city and village officers as regards official duty, that were known at the time of the adoption of the constitution, shall be elected or appointed by some authority of the particular locality interested, designated by the legislature.

10. An act of the legislature appointing members of a police force in a city is an unconstitutional interference with local affairs.

11. An act of the legislature, so far as it expressly, or by its effect, extends the term of office of a member of the police force of a city beyond that for which he was specifically elected or appointed by legitimate municipal authority, so as to keep such officer in place for any period of time regardless of such authority, is unconstitutional and void.

Appeal from circuit court, Fond du Lac county; Michael Kirwan, Judge.

Action by Sealy F. O'Connor against the city of Fond du Lac. Judgment for plaintiff. Defendant appeals. 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 employés 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.

O. H. Ecke (Maurice McKenna and E. J. Phelps, of counsel), for appellant.

Edward S. Bragg, for respondent.

MARSHALL, J. (after stating the facts).

Section 5 of the city charter of the appellant 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 such claimant of such claim or demand.” Laws 1883, c. 152, subc. 18. The complaint does not show that such charter condition to the maintenance of this action exists. No objection was taken by appellant on that...

To continue reading

Request your trial
48 cases
  • Brown v. Salt Lake City
    • United States
    • Supreme Court of Utah
    • 9 Enero 1908
    ...... is a statute of limitation. ( Hay v. City of Baraboo. [Wis.], 105 N.W. 654; Van Auken v. Adrian. [Mich.], 98 N.W. 15; O'Connor v. Fond du Lac [Wis.],. 85 N.W. 327.). . . Neither. a municipal corporation nor any other person is liable for an. injury to a trespasser ......
  • Commonwealth ex rel. Elkin v. Moir
    • United States
    • United States State Supreme Court of Pennsylvania
    • 27 Mayo 1901
    ...... John P. Elkin, Attorney General, v. James Moir, Recorder of. the city of Scranton. Affirmed. . . Quo. warranto to determine the right of respondent to the ... v. Moores, 55 Neb. 480; People v. Hurlbut, 24. Mich. 44; O'Connor v. City of Fond du Lac, 85. N.W. 327; People v. Lynch, 51 Cal. 15; State v. Hyde, 121 Ind. 20; Hanson v. ......
  • State ex rel. Bolens v. Frear
    • United States
    • United States State Supreme Court of Wisconsin
    • 9 Enero 1912
    ...... from each, counting the income derived from without the state as derived from the town or city of the taxpayer's residence.         (3) The income of nonresidents derived from sources ...Fond du Lac, 109 Wis. 253, 85 N. W. 327, 53 L. R. A. 831, and State ex rel. Gubbins v. Anson, 132 Wis. ......
  • Ex parte Corliss
    • United States
    • United States State Supreme Court of North Dakota
    • 23 Octubre 1907
    ...weight, as an authority upon the question here involved and expressly decided by the Wisconsin court. In O'Connor v. City of Fond du Lac, 109 Wis. 253, 85 N. W. 327, 53 L. R. A. 831, the Supreme Court of Wisconsin had under consideration the home rule provision of their Constitution, which ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT