Logan v. City of Two Rivers
| Decision Date | 28 April 1936 |
| Parties | LOGAN v. CITY OF TWO RIVERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Manitowoc County; Henry A. Detling, Judge.
Reversed.
This action was begun by Thad Logan, plaintiff, on March 24, 1934, to recover for six months' services as police officer of the defendant city of Two Rivers. The defendant city claimed that plaintiff had been discharged and was entitled to no compensation. There was a trial by the court and the court found for the defendant. Judgment was entered accordingly, dismissing plaintiff's complaint, from which judgment the plaintiff appeals.
We shall not state all the facts found by the court, but only such as are necessary to an understanding of the decision. The plaintiff had been a member of the police department of the defendant city since 1929. At the time of his discharge he held the position of sergeant with a salary of $125 per month. The defendant city has been under city manager form of government since May 18, 1925. On June 15, 1925, an ordinance was adopted by the proper city authorities abolishing all boards and commissions, which included the police and fire commission. On September 26, 1933, the city manager notified the plaintiff that he might have a public hearing in regard to his suspension and proposed dismissal. On October 3, 1933, by order of the city manager, the plaintiff was suspended from the police force from and after that date. In response to the plaintiff's demand for a public hearing, charges were filed. These consisted mostly of allegations based upon rumors and matters alleged upon information and belief. There was a hearing on the charges on November 7, 1933. On November 23, 1933, the city manager made a decision in which he found that the charges were unproven, but found that it would be for the best interest of the city if the plaintiff were discharged and he was accordingly discharged and filed his claim against the city which was disallowed, whereupon this action was begun.
Healy & Joyce, Kenneth C. Healy, and John J. Healy, all of Manitowoc, for appellant.
F. W. Dicke, of Two Rivers, for respondent.
Robert J. Cunningham, of Janesville, amicus curiæ.
Chapter 263 of the Laws of 1933 became effective June 20, 1933. By that act it was provided as to cities under the manager plan as follows: “Each such city not having a board of police and fire commissioners shall provide for the organization of such a board under the provisions of section 62.13 within thirty days after this subsection takes effect.” Section 64.10(2).
Instead of complying with the provisions of this section, the common council of the defendant city passed an ordinance to the effect that it elected not to be governed by the provisions of chapter 263, and that said amendment was not in force and effect in the defendant city, and that the defendant city elected to be governed by section 64.10(2) as it existed before the passage of chapter 263. The defendant city claims the right to disregard the provisions of chapter 263 on the ground that under the provisions of article 11, § 3, of the Constitution it has a right to determine its local affairs and government “subject only to this constitution and to such enactments of the legislature of state-wide concern as shall with uniformity affect every city or every village.”
[1] While the city manager assumed to act “as the board of police and fire commissioners” and the defendant city attempted to justify the discharge on the ground that he was a de facto board of police and fire commissioners, it is considered that that contention is entirely untenable. The board of police and fire commissioners consists of five citizens, three of whom shall constitute a quorum. They are appointed by the mayor and must be of different political parties. It would seem to require no argument to show that the city manager could not qualify as a board of police and fire commissioners.
[2] On behalf of the plaintiff it is argued that if the city manager was exercising the powers of a board of police and fire commissioners, his discharge of the plaintiff was unwarranted because he found him not guilty on the counts lodged against him. However, if in conducting the proceedings he was exercising a power which he did not possess, any act that he did pursuant thereto was a nullity. For this reason, we address ourselves to the question of what effect if any the enactment of chapter 263 had upon the power of the city manager “to remove such appointees at any time their services or the...
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