Johnson v. City of Milwaukee

Citation147 Wis. 476,133 N.W. 627
PartiesJOHNSON v. CITY OF MILWAUKEE ET AL.
Decision Date05 December 1911
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.

Action by Herbert R. Johnson against the City of Milwaukee and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.

On April 19, 1910, the common council of the city of Milwaukee passed the following resolution: “Whereas, the city of Milwaukee is a city of the first class: Resolved, by the common council of the city of Milwaukee, that, pursuant to the power and authority conferred by chapter 297 of the Laws of Wisconsin for the year 1907, entitled ‘An act providing for the office of commissioner of public works in all cities of the first class, whether organized under special charter or under the general law,’ this common council, by majority vote of its members elect, hereby approves, incorporates and adopts as a portion of the city charter of the city of Milwaukee, said chapter 297 of the Laws of Wisconsin for the year 1907 (appearing as chapter 5 of the Milwaukee city charter supplement, 1908), relating to the creation of the office of commissioner of public works in all cities of the first class and providing that such commissioner shall succeed within sixty days after his appointment to all the duties, powers, rights and privileges of the present board of public works in such cities. The true intent, purpose and effect of this resolution is to approve, adopt and put in full force and effect, from and after the date of the passage of this resolution, said chapter 297 as a part of the charter of said city of Milwaukee.”

On April 22, 1910, such resolution was approved by the mayor, and thereafter the mayor, by communication in writing to the common council, appointed H. E. Briggs as commissioner of public works. Said Briggs filed his oath of office and official bond, and entered upon his duties. On August 15, 1910, by communication in writing, Briggs advised the common council that he had appointed C. A. Mullen as superintendent of street construction and repairing. On August 1, 1910, an ordinance was reported to said common council, fixing the salary of such superintendent at $3,000 a year, and providing that he give bond in the sum of $10,000. This ordinance was passed August 15, 1910, and later approved by the mayor, and the defendant entered upon his duties as superintendent.

Plaintiff brought this action as a taxpayer, to restrain the defendant city and its treasurer and comptroller from paying the salary of the defendant Mullen. The complaint alleged that the appointment was not made in accordance with the provisions of the civil service laws of the state, applicable to the cities to which the act applies, nor in accordance with the provisions of the charter of the defendant city, in that said Mullen had not resided in the city for one year next preceding such appointment, had never passed an examination in accordance with the civil service laws, and had not resided in the city of Milwaukee a sufficient length of time to entitle him to take such examination. The complaint further alleged that chapter 297, Laws of 1907, had never been legally adopted by the common council of the city of Milwaukee. Defendants demurred to the complaint, on the ground that the court had no jurisdiction of the persons of the defendants in this action; that the court had no jurisdiction of the subject of the action; and that the complaint did not state facts sufficient to constitute a cause of action. Such demurrer was overruled, and from the order overruling the demurrer this appeal is taken.Daniel W. Hoan, City Atty., for appellants.

C. H. Hamilton, for respondent.

BARNES, J. (after stating the facts as above).

[1] The resolution adopting chapter 297, Laws of 1907, was passed by the common council of the city of Milwaukee on the day upon which it was introduced, and at the same meeting, and without reference to any committee.

Section 5 of chapter 4 of the charter of the city of Milwaukee provides that: “All resolutions appropriating money, or creating any charge against any of the funds of said city or wards, and all accounts and ordinances, shall be referred to appropriate committees and shall only be acted on by the common council at a subsequent meeting not held on the same day, on the report of the committee to which the same were referred.”

The trial court held that, inasmuch as chapter 297, Laws of 1907, created a number of salaried offices, not before in existence, its adoption created a “charge” against the funds of the city, and that the charter provisions should have been followed in passing the resolution adopting the law, and, not having been followed, it was never legally adopted, and the offices provided for therein were never lawfully created.

We cannot adopt the view of the law taken by the learned circuit court. Chapter 297, Laws of 1907, is an option law, pure and simple. The right of the Legislature to pass such a law is settled beyond controversy in this state. The right of the Legislature to pass any constitutional law, amending the charter of cities of the first class, is of course conceded. The Legislature might have passed the law without the option feature, and it might have provided that the act should not become operative until the electors voted to adopt the same, or until a majority, or some major fraction of a majority, of the common council so voted, or until the mayor and common council so voted. The act itself, we think, quite plainly prescribes what should be done. It provides: This act shall take effect and be in force from and after the first day of January, 1908, provided that before this act shall be in effect in any city to which it applies, it must first have been approved by a majority vote of the members elect of the common council of such city.” The only prerequisite to its adoption was that it should receive the approval of a majority of the common council elect, and it did receive such approval. That this law did not contemplate that the passage of the resolution adopting it should be governed by the procedure prescribed for adopting resolutions under the city charter is quite manifest. Such resolutions must be signed by the mayor, or, if vetoed by him, must be passed over his veto, if at all, by a two-thirds vote of all the members elect. Section 7, c. 4, Milwaukee Charter. Now the law of 1907 does not provide for any consent by the mayor, and it was wholly immaterial whether he gave his consent to the resolution adopted or not. Any other conclusion would lead to this anomalous and incongruous situation: The resolution might have been adopted by the council and vetoed by the mayor, and have failed to receive the necessary two-thirds vote to pass it over his veto, although a majority of the members of the council so voted. If respondent's contention is correct, the law would not be adopted, because the resolution for adoption could not be passed under the charter provisions, although by its very terms the law was to become operative, if approved by a majority vote of the members elect of the common council. We conclude that the law was legally adopted, and that the offices therein provided for were...

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9 cases
  • Castelaz v. City of Milwaukee
    • United States
    • Wisconsin Supreme Court
    • 4 Marzo 1980
    ...The remainder are dissimilar from the present case: Butler v. Milwaukee, 119 Wis. 526, 97 N.W. 185 (1903); Johnson v. Milwaukee, 147 Wis. 476, 133 N.W. 627 (1911); Dandoy v. Milwaukee County, 214 Wis. 586, 254 N.W. 98 (1934); Unger v. Gregory, 249 Wis. 161, 23 N.W.2d 280 (1946); Schoonover ......
  • The Aetna Casualty and Surety Co. v. The Mayor and Council of Wilmington
    • United States
    • Court of Chancery of Delaware
    • 19 Mayo 1932
    ... ... by Walsen, who was elected Tax Collector of the Southern ... District of the City of Wilmington for two terms of office ... commencing on July 1, 1925 and July 1, 1927, ... officer and that officer the principal," is the language ... of the court in Butler v. Milwaukee, 119 Wis. 526, ... 97 N.W. 185, 186. While this language may in certain ... circumstances be ... omissions of his subordinates. Johnson v. Milwaukee, ... 147 Wis. 476, 133 N.W. 627, illustrates such a case. The ... question in such ... ...
  • Ryan v. Hennepin Cnty.
    • United States
    • Minnesota Supreme Court
    • 18 Noviembre 1947
  • Wegner v. Herkimer
    • United States
    • Michigan Supreme Court
    • 8 Diciembre 1911
  • Request a trial to view additional results

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