Kempster v. City of Milwaukee

• Decision Date: 22 October 1897
• Citation: 72 N.W. 743,97 Wis. 343
• Parties: KEMPSTER v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

97 Wis. 343

72 N.W. 743

KEMPSTER

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Oct. 22, 1897.

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

Action by Walter Kempster against the city of Milwaukee. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover from the defendant city of Milwaukee a sum of money which plaintiff claims is due him on account of salary as health commissioner for said city. The complaint shows that the charter of the city of Milwaukee provides for an office known as “commissioner of health”; that such office shall be filled by appointment by the mayor, with the approval of the common council; that the person so appointed, and whose appointment shall have been so approved, shall hold the office for the term of four years; that in case of a vacancy during the term it shall be filled in like manner for the unexpired term; that the commissioner of health shall have power, subject to confirmation by the council, to appoint such assistants as may be necessary for the proper discharge of his duties; that the annual salary of the commissioner is $2,500; that all such provisions of the charter referred to were in force during all the times mentioned in the complaint; that on the 30th day of April, 1894, plaintiff became the commissioner of health of said city, under the provisions of the charter referred to, for the full term of four years; that he immediately entered upon the discharge of the duties of his office, and continued to hold such office and discharge its duties until unlawfully ousted from such office in the manner stated in the complaint. The complaint further shows that such proceedings were taken by the common council of the city, that on the 21st day of February, 1895, said council, without authority of law, dismissed plaintiff from his office; that on the 28th day of February thereafter, by order of the mayor of said city, plaintiff was forcibly ejected from his office by the police officers of the city, upon the pretense that he had been legally removed from office by action of the common council; that the proceedings of the council were removed, by writ of certiorari, to the circuit court for Milwaukee county, and on the 22d day of January, 1896, such proceedings were had in said circuit court, that the action of the common council in attempting to remove plaintiff from his office was adjudged to be without jurisdiction, unlawful and void; that thereupon, and on order of the circuit court, plaintiff was permitted to resume the duties of his office; that upon removal of plaintiff from his office in February, 1895, the mayor of the city appointed plaintiff's assistant as acting commissioner of the board of health, and thereafter, till plaintiff was permitted to resume the performance of the duties of such office as stated, said acting commissioner of health, so called, performed the duties of commissioner of health, and was permitted to draw the salary attached to such office; that there is no authority in the charter for the appointment of an acting commissioner of health, and that during the time that plaintiff was excluded from his office, it was not, in fact, filled by any other person. The complaint further shows that the plaintiff, during all the time he was excluded from his office, was ready and willing to perform its duties, but was prevented therefrom by the officers of the city; that he never consented to the place being filled by his assistant or by anybody else. The complaint further sets forth facts entitling plaintiff to bring this action for the compensation due him for the time he was excluded from the office, the amount being $2,499.96, as stated in the complaint, if he had any valid claim in that regard existing against the city. The defendant, for a defense, alleged that the condition of the city of Milwaukee was such that it was vitally necessary to have a person in the office of the commissioner of health, to perform its duties during the time that plaintiff was excluded therefrom, and that the mayor, to meet such necessity, in good faith appointed H. E. Bradley to act till the legality of the proceedings of the common council should be determined in the certiorari proceedings; and that said Bradley performed the duties of such office till plaintiff resumed the same after the determination of such certiorari proceedings; and that the disbursing officer, in good faith, paid the salary of the commissioner of health to said acting commissioner during that time.

Upon the trial of the case all the facts were substantially admitted, either by the answer or otherwise, except the eligibility of the plaintiff to the office of the commissioner of health. Evidence was introduced on that question...