Adamczyk v. Town of Caledonia, 161
| Decision Date | 05 October 1971 |
| Docket Number | No. 161,161 |
| Citation | 52 Wis.2d 270,190 N.W.2d 137 |
| Parties | Anthony ADAMCZYK, Appellant, v. TOWN OF CALEDONIA, Respondent. |
| Court | Wisconsin Supreme Court |
This is an appeal from a judgment of the circuit court for Racine county dismissing the plaintiff's complaint. The plaintiff, Anthony Adamczyk, brought an action against the town of Caledonia alleging that he was a policeman of the town of Caledonia and had served in that capacity since September of 1957. He alleged that on June 14, 1966, he was notified that his services had been terminated on the day before. He further alleged that on February 15, 1966, the town board had entered into a contract regulating the terms and conditions of employment for employees of the town of Caledonia, that the plaintiff was one of the parties to that contract, and that, among other things, the contract provided that employees may be dismissed for cause. He further claimed that the notice of termination set forth no cause for the discharge and that his request for a hearing was denied. He asked for judgment reinstating him in his position, compensating him for wage losses, and for damages resulting from the acts of the defendant. A demurrer to this complaint was sustained, and the plaintiff was permitted to plead over.
The amended complaint contained the same factual allegations, although therein in form he alleged two causes of action, one for wages lost as a result if discharge and the other claiming the sum of $25,000 for embarrassment, shame, and humilitation. He again asked for the reversal of the discharge and for reinstatement.
The defendant demurred to the amended complaint on the gounds that causes of action were improperly united in violation of sec. 263.06(5), Stats., and that none of the allegations stated facts sufficient to constitute a valid cause of action as set forth in sec. 263.06(6).
Following a hearing on the demurrer, the demurrer was sustained, and the trial judge entered judgment dismissing the complaint, after concluding in his memorandum opinion that the defendant could not by amendment frame a complaint stating a cause of action.
Adamczyk has appealed from the judgment.
Weber, Gerard & Bonk, Racine, for appellant.
LaFrance, Thompson, Greenquist, Evans & Dye, Racine, for respondent.
Much of the briefs of both appellant and respondent was devoted to the question of whether the action should have been brought in certiorari, and if so whether the causes alleged were properly incorporated in a petition for that writ. If, however, the record makes it apparent that no cause for relief could be set forth in a petition in certiorari or otherwise, it is unnecessary to decide what procedural pleadings would properly have framed the plaintiff's cause of action. If no valid causes of action were stated in the complaint, it is also unnecessary and impossible to determine whether or not the causes of action were improperly joined.
Section 60.29, Stats., in 45 subsections, details the legislative grant of authority to town boards. The law is clear that a town has only such powers as are specifically delegated to it by the legislature. Pugnier v. Ramharter (1957), 275 Wis. 70, 73, 81 N.W.2d 38, 71 A.L.R.2d 522.
Section 60.29(8), Stats., authorizes the town board:
'To appoint policemen, a superintendent of police and a night watchman for service at any other place in the town when needed to protect persons or property or to preserve order at any assemblage for moral, religious or educational purposes.'
No provisions appear in sec. 60.29, Stats., which restrict the power of the town board to deal with its employees or officers. The appellant concedes that, but for the contract of 1966, he could be removed at the pleasure of the town board upon the vote of the majority of all the members thereof. Although the respondent contends that a policeman is a town officer, who may be removed under the provisions of sec. 17.13(1), it is unnecessary under the facts of this case, and particularly in view of the plaintiff's concession, to reach that conclusion. In the absence of civil service regulations or properly authorized statutory rules governing labor relations, a municipal employee has no tenure in his public service.
In the case of State ex rel. Wattawa v. Manitowoc Public Library Board (1949), 255 Wis. 492, 39 N.W.2d 359, a city librarian sought to have her discharge vacated. This court pointed out:
* * *' (P. 493, 39 N.W.2d p. 360)
The court further stated:
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