Kempster v. City of Milwaukee

• Decision Date: 02 June 1899
• Citation: 79 N.W. 411,103 Wis. 421
• Parties: KEMPSTER v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

103 Wis. 421

79 N.W. 411

KEMPSTER

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

June 2, 1899.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Walter Kempster against the city of Milwaukee. There was a judgment for defendant, and plaintiff appeals. Affirmed.V. W. Seeley, for appellant.

Carl Runge and L. W. Halsey, for respondent.

WINSLOW, J.

This is an appeal from an order sustaining a demurrer to the complaint. The complaint alleges, in substance: That the plaintiff was the duly elected and qualified commissioner of health of the city of Milwaukee, and that in October, 1894, while a smallpox epidemic was raging in said city, and the plaintiff was performing his duty in trying to check the same, 34 charges of misconduct in office were willfully and maliciously preferred against him by private parties to the council, for the sole purpose of harassing the plaintiff, and causing him to abdicate his office; and that the council thereupon, for the sole purpose of harassing and embarrassing the plaintiff, and putting him to expense and annoyance, appointed a committee to investigate the charges; and that afterwards the council, upon a report of such committee, adopted a resolution declaring nine of the charges sustained, and dismissing the plaintiff from office. That upon certiorari the removal proceedings were reversed by the circuit court of Milwaukee county, and the plaintiff was reinstated in his office. That by reason of the council's taking cognizance of the said charges, and compelling the plaintiff to defend his office and official acts for the public good, he was put to great expense in procuring the services of attorneys. And he prays to recover of the city the amount of the bills for attorney's services so incurred. It is quite apparent that this complaint states no cause of action against the city. In carrying out the laws for the preservation of the public health the city is performing a duty which it owes to the whole public as distinguished from a mere corporate duty. It is a duty which it is bound to see performed in pursuance of law as one of the governmental agencies, but not a duty from which it derives special benefit or pecuniary advantage in its corporate or private capacity. It is like the administration of the fire and police departments. Hayes v. City of Oshkosh, 33 Wis. 314;Kuehn v. City of Milwaukee, 92 Wis. 263, 65 N. W. 1030; 2 Dill. Mun. Corp. (4th Ed.) § 977. It is well settled...