McClutchey v. Milwaukee Cnty.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtFOWLER
Citation239 Wis. 139,300 N.W. 224
Decision Date02 December 1941
PartiesMcCLUTCHEY v. MILWAUKEE COUNTY et al.

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;

[300 N.W. 225]

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,...

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11 practice notes
  • Fabick v. Evers, No. 2020AP1718-OA
    • United States
    • United States State Supreme Court of Wisconsin
    • 31 Marzo 2021
    ...over a century. Acknowledging this settled requirement for taxpayer standing, the S.D. Realty court cited McClutchey v. Milwaukee County, 239 Wis. 139, 140, 300 N.W. 224 (1941). S.D. Realty Co., 15 Wis. 2d at 21-22, 112 N.W.2d 177. McClutchey, in turn, cites a long list of cases dating back......
  • S.D. Realty Co. v. Sewerage Commission of City of Milwaukee
    • United States
    • United States State Supreme Court of Wisconsin
    • 28 Noviembre 1961
    ...some pecuniary loss; [15 Wis.2d 22] otherwise the action could only be brought by a public officer. McClutchey v. Milwaukee County (1941), 239 Wis. 139, 300 N.W. 224, 917, 137 A.L.R. 628, and cases cited therein. However, a taxpayer does have a financial interest in public funds which is ak......
  • Wurth v. Affeldt
    • United States
    • United States State Supreme Court of Wisconsin
    • 3 Noviembre 1953
    ...nature is usually limited', citing State ex rel. Dalrymple v. Milwaukee County, supra. The case of McClutchey v. Milwaukee County, 1941, 239 Wis. 139, 300 N.W. 224, 917, 137 A.L.R. 628, involved a taxpayers' action commenced in 1939, to enjoin payment of salary to an employee of the county ......
  • Town of Blooming Grove v. City of Madison
    • United States
    • United States State Supreme Court of Wisconsin
    • 3 Junio 1958
    ...taking an appeal to this court from a judgment, which was then two years but is now only six months. In McClutchey v. Milwaukee County, 239 Wis. 139, 144, 300 N.W. 224, 917, 137 A.L.R. 628, it was stated categorically that the time to attack by certiorari is limited to the time in which app......
  • Request a trial to view additional results
11 cases
  • Fabick v. Evers, No. 2020AP1718-OA
    • United States
    • United States State Supreme Court of Wisconsin
    • 31 Marzo 2021
    ...over a century. Acknowledging this settled requirement for taxpayer standing, the S.D. Realty court cited McClutchey v. Milwaukee County, 239 Wis. 139, 140, 300 N.W. 224 (1941). S.D. Realty Co., 15 Wis. 2d at 21-22, 112 N.W.2d 177. McClutchey, in turn, cites a long list of cases dating back......
  • S.D. Realty Co. v. Sewerage Commission of City of Milwaukee
    • United States
    • United States State Supreme Court of Wisconsin
    • 28 Noviembre 1961
    ...some pecuniary loss; [15 Wis.2d 22] otherwise the action could only be brought by a public officer. McClutchey v. Milwaukee County (1941), 239 Wis. 139, 300 N.W. 224, 917, 137 A.L.R. 628, and cases cited therein. However, a taxpayer does have a financial interest in public funds which is ak......
  • Wurth v. Affeldt
    • United States
    • United States State Supreme Court of Wisconsin
    • 3 Noviembre 1953
    ...nature is usually limited', citing State ex rel. Dalrymple v. Milwaukee County, supra. The case of McClutchey v. Milwaukee County, 1941, 239 Wis. 139, 300 N.W. 224, 917, 137 A.L.R. 628, involved a taxpayers' action commenced in 1939, to enjoin payment of salary to an employee of the county ......
  • Town of Blooming Grove v. City of Madison
    • United States
    • United States State Supreme Court of Wisconsin
    • 3 Junio 1958
    ...taking an appeal to this court from a judgment, which was then two years but is now only six months. In McClutchey v. Milwaukee County, 239 Wis. 139, 144, 300 N.W. 224, 917, 137 A.L.R. 628, it was stated categorically that the time to attack by certiorari is limited to the time in which app......
  • Request a trial to view additional results

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