Clancy v. Bd. of Fire & Police Com'rs of Milwaukee

• Decision Date: 29 October 1912
• Citation: 150 Wis. 630,138 N.W. 109
• Court: Wisconsin Supreme Court
• Parties: CLANCY v. BOARD OF FIRE & POLICE COM'RS OF MILWAUKEE ET AL.

150 Wis. 630

138 N.W. 109

CLANCY

v.BOARD OF FIRE & POLICE COM'RS OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Oct. 29, 1912.

Appeal from Circuit Court, Milwaukee County; James Wickham, Judge.

Thomas A. Clancy, chief of the Milwaukee fire department, was removed from office by the board of fire and police commissioners under Laws 1911, c. 586, and brought an action in the circuit court to reverse the decision. From a judgment of the circuit court reversing the judgment of removal, the commissioners appeal. Appeal dismissed, and motion for writ of certiorari denied.Daniel W. Hoan, City Atty., of Milwaukee, for appellants.

Walter H. Bender, Thomas H. Dorr, Norman L. Baker, and W. J. Zimmers, all of Milwaukee, for respondent.

WINSLOW, C. J.

Thomas A. Clancy, chief of the fire department of the city of Milwaukee, was removed from office by the board of fire and police commissioners of Milwaukee after trial upon charges as provided by subsection 19 of section 959--46d, Statutes of Wisconsin (chapter 586, Laws of 1911). He thereupon brought action in the circuit court of Milwaukee county against the board to reverse their decision, as provided by subsections 20 and 21 of the same law, and upon trial thereof the circuit court reversed the judgment of removal, and the commissioners appealed to this court from such judgment of reversal. The respondent now moves to dismiss the appeal to this court on the ground that no appeal from the judgment of the circuit court is provided for by the law. The appellants, while contesting the motion to dismiss, make a motion for the issuance (in the event of a dismissal of the appeal) of a writ of certiorari out of this court directed to the circuit court for the purpose of reviewing the judgment, claiming that the circuit court had no jurisdiction because of the unconstitutionality of the act aforesaid. It seems to us quite clear that no appeal lies from the decision of the circuit court.

[1] The law creates a new remedy to meet a new situation. The principle is familiar that, under such circumstances, the remedy is exclusive, and is subject to the conditions and limitations which legislative wisdom has seen fit to throw around it. State ex rel. Cook v. Houser, 122 Wis. 534 (see page 595), 100 N. W. 964.

[2] The right of appeal is purely statutory, and unless given, it is withheld. Puffer v. Welch, 141 Wis. 304, 124 N. W. 406.

[3] It is true that our statutes in general terms authorize appeals from judgments in actions in the circuit court, and that the present proceeding is expressly termed an action in the law which creates it. Examination of the provisions of the law, however, seems to indicate very conclusively that no appeal to this court was contemplated. In the first place, nothing is said about any such appeal, and this is the more significant because, upon examination of somewhat similar laws giving to circuit courts the right of review of the decisions of special tribunals, we find special provisions for appeal to this court industriously inserted. Chapter 362, Laws 1905 (Railroad Commission Law) § 16; chapter 499, Laws 1907; sections 1797m1--109, Stats. (Public Utilities Law); section 1797m--69. See, also, sections 1849, 1379--36, and section 1299f (Stats. Wis.), governing condemnation proceedings for railroad, drainage, and highway purposes. Much stronger than this mere negative inference, however, is the inference necessarily to be drawn from the positive provisions of the law itself. Subsection 22 provides that, if the decision of the board is reversed by the court, the discharged man shall be at once reinstated in his position, and entitled to his pay as if never discharged, and that, if the decision of the board be sustained, the order of discharge shall be final and conclusive in all cases. The purpose to absolutely terminate the proceeding with the decision of the circuit court seems here very certain. Doubtless the probable demoralizing effect on the public service of long drawn-out proceedings, during which time no permanent appointment could be made, was fully appreciated. Every clause of the law indicates the intention to make the entire proceeding as speedy as possible, and yet give the accused person the right to fully make his defense, and in view of the very significant provisions of the section last cited we entertain no doubt that the statute means, and was intended to mean, that the proceeding should be finally closed by the decision of the circuit court. It follows that the appeal will be dismissed. As to the motion for the issuance of a writ, different considerations arise.

[4] The appellants' contention is that the removal of such officers is purely an administrative or executive function and in no sense judicial, and cannot under the Constitution be vested in the courts, that the law in hand practically gives to the circuit court the power of removal, and hence is unconstitutional. We do not find it necessary to decide the question whether the power of removal of local officers is a function which can constitutionally be vested in the courts. Counsel urge that this question was decided in the negative by the case of State ex rel. Davern v. Rose, 140 Wis. 360, 122 N. W. 751, 28 L. R. A. (N. S.) 194, but an examination of that case shows that the question there presented was an entirely different one, and has only a remote bearing on the present case, if indeed it has any bearing at all. For many years the statutes of this state have provided for the removal of certain administrative officers by judges of courts of record, and we are not aware that the constitutionality of these provisions has ever been attacked. Circuit judges are authorized to remove the clerk of the circuit court (section 973, Stats. Wis.), the county superintendent of schools (section 975, Id.), and town officers (section 976, Id.). County judges are empowered to remove all school district officers (section 507, Id.)....