Hartwig v. Mayor, etc., of Watertown

• Decision Date: 21 May 1907
• Parties: HARTWIG v. MAYOR, ETC., OF CITY OF WATERTOWN.
• Court: Wisconsin Supreme Court

132 Wis. 83

112 N.W. 21

HARTWIG

v.MAYOR, ETC., OF CITY OF WATERTOWN.

Supreme Court of Wisconsin.

May 21, 1907.

Syllabus by the Judge.

A municipal body required to keep a history of its proceedings cannot properly be judicially compelled to efface any such history from its records upon the ground that the proceedings were erroneous.

When a wrong is clearly and adquately remediable by certiorari the mandamus remedy ought not to be allowed.

In case of an alternative writ of mandamus having been issued in proceedings to restore a person to office from which he has been wrongfully temporarily suspended, and it appearing that such person has not suffered any substantial loss by the suspension and that the period of suspension expired before the time for the hearing on the application for a peremptory writ, which must have been foreseen by such person at the beginning, the court in its discretion may quash the alternative writ and enter judgment of dismissal with costs.

Appeal from Circuit Court, Dodge County; James J. Dick, Judge.

Action by Adolph H. Hartwig against the mayor and common council of the city of Watertown, Wis. Judgment for defendants, and plaintiff appeals. Affirmed.

Mandamus proceedings to compel the common council of the city of Watertown, Wisconsin, to expunge from its records proceedings respecting a suspension of the relator from his office as a member of such body, and for such other relief as might be proper.

In impeachment proceedings against the relator as an alderman of the city of Watertown, Wisconsin, he was found guilty December 1st, 1905, and, by resolution of the common council of the city, was suspended from office for a period of sixty days from such date, one Bittner, Jr., being appointed by the mayor and in due form confirmed to serve in his place. The charges were to the effect that the relator circulated a false rumor that the city council sold out the interests of the city in respect to a bill pending before the Wisconsin Legislature in which the city was interested, and later falsely asserted that members of the Legislature informed him, that the council so sold out to the concern in whose special interest said bill was introduced, and that the mayor and city attorney had been lobbying for the passage of the bill. The petition for the writ set forth the matters indicated and that certain irregularities, claimed to be jurisdictionally fatal to the impeachment proceedings occurred. It further showed that eighteen days after the date of the suspension the relator demanded a rescission of the impeachment judgment, which was refused.

The specific relief asked was for the issuance of a writ commanding the mayor and common council of the city of Watertown to rescind, revoke and vacate the resolutions relating to the impeachment proceedings and expunge the same from the city records. There was an alternative writ accordingly issued January 9th, 1906. The matter was brought to a hearing May 14th, 1906, when such proceedings were duly had that a motion was made to quash the alternative writ because of informalities and insufficiencies in the petition and writ, for a defect of parties and for other reasons. The motion was granted without specifying any...