McClutchey v. Milwaukee Cnty.

• Citation: 239 Wis. 139,300 N.W. 224
• Parties: McCLUTCHEY v. MILWAUKEE COUNTY et al.
• Decision Date: 02 December 1941
• Court: Wisconsin Supreme Court

239 Wis. 139

300 N.W. 224

McCLUTCHEY

v.MILWAUKEE COUNTY et al.

Supreme Court of Wisconsin.

Oct. 7, 1941.

Rehearing Denied Dec. 2, 1941.

See 300 N.W. 917.

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Affirmed.

Action by James T. McClutchey, as a taxpayer, against the County of Milwaukee and others, to enjoin payment of public money. From a judgment dismissing the complaint, the plaintiff appeals. The facts are stated in the opinion.

Padway & Goldberg and David Previant, all of Milwaukee, for appellant.

Herbert J. Steffes, Dist. Atty., O. L. O'Boyle, Corp. Counsel, and C. Stanley Perry, Asst. Corp. Counsel, all of Milwaukee, for respondents.

FOWLER, Justice.

The plaintiff sues to enjoin payment of salary to the defendant Boncher, who is in the service of the county as “engineman in charge of maintenance” in the court house. The plaintiff sues solely in his capacity as a taxpayer of the county. Boncher has been continuously in the service of the county as an “engineman” for over ten years. The sole ground of the action is that his original appointment was illegal under the civil service law applicable to the county and the rules established by the board charged with the administration of the law. Coupled with the prayer for an injunction is a prayer that the defendant Sommers, the county treasurer, be adjudged to pay into the county treasury the amount of salary paid to Boncher during the entire term of his service. The latter claim, however, has been abandoned, and we are concerned only with the injunctional feature of the case.

[1][2][3] We are of the opinion that the dismissal of the complaint was proper for the reason that under the facts involved a taxpayer's action does not lie. It is fundamental that in order to maintain such an action the taxpayer and taxpayers as a class must have sustained or will sustain some pecuniary loss. Kasik v. Janssen, 158 Wis. 606, 149 N.W. 398;Berger v. Superior, 166 Wis. 477, 166 N.W. 36;Murphy v. Paull, 192 Wis. 93, 212 N.W. 402;Milwaukee Horse & Cow Comm. Co v. Hill, 207 Wis. 420, 241 N.W. 364;Stuart v. Neenah, 215 Wis. 546, 255 N.W. 142. In Milwaukee Horse & Cow Comm. case, supra, 207 N.W. at page 428, 241 N.W. at page 368, et seq., this point is discussed at some length. It is there said that the only case in our court in which the action has been entertained when the plaintiff sustained no pecuniary loss is Tyre v. Krug, 159 Wis. 39, 149, N.W. 718, L.R.A.19l5C, 624, which is declared “out of line with every other taxpayer's action *** for the simple reason that no injury to taxpayers as such was present in the case,” and is expressly overruled. It is obvious that the taxpayers have not sustained nor will sustain any pecuniary loss by continuance of Boncher in the position he is...